State ex rel. N.K. v. State
| Decision Date | 21 February 2020 |
| Docket Number | No. 20190413-CA,20190413-CA |
| Citation | 461 P.3d 1116 |
| Parties | STATE of Utah, IN the INTEREST OF N.K., a person under eighteen years of age. T.K., Appellant, v. State of Utah, Appellee. |
| Court | Utah Court of Appeals |
Michael C. McGinnis, Attorney for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Salt Lake City, Attorneys for Appellee
Martha Pierce, Salt Lake City, Guardian ad Litem
Opinion
¶1 The juvenile court terminated T.K.’s (Father) parental rights to N.K. (Child) after it found Father (1) neglected Child; (2) was an unfit or incompetent parent; (3) substantially neglected, willfully refused, or was unwilling to remedy the circumstances that caused Child to be placed in foster care; (4) experienced a failure of parental adjustment; and (5) made only token efforts to support or communicate with Child, to prevent neglect of Child, to eliminate the risk of serious harm to Child, and to avoid being an unfit parent. The court also found that the Division of Child and Family Services (DCFS) made reasonable efforts to provide reunification services for Father and Child and concluded that termination of Father’s parental rights was strictly necessary for Child’s best interests. Father contends insufficient evidence supports the court’s determination that he was incompetent or unfit and that he neglected Child, alleges the court erred when it found DCFS made reasonable efforts for reunification, and claims it was not strictly necessary to Child’s best interests to terminate his parental rights. We affirm.
¶2 In November 2017, E.K. (Mother) was arrested during a traffic stop. Two-year-old Child was in the car with her. DCFS took custody of Child and then placed him in foster care with Mother’s cousin (Foster Mother).
¶3 Father is a California resident who had not seen Child for approximately six months before Child was placed in foster care. On Child’s placement, DCFS began working with Father in an effort to reunite him with Child pursuant to a court order entered in February 2018. To accomplish this, Father was expected to (1) participate in a domestic violence assessment and follow the recommendations from the assessment, (2) participate in a mental health assessment and follow the recommendations from the assessment, (3) participate in a substance abuse assessment and follow the recommendations from the assessment, (4) submit to random drug tests, (5) participate in parenting classes, (6) obtain stable housing and a stable source of income, and (7) maintain consistent contact with Child.
¶4 Father requested services be provided to him in California, and although the DCFS caseworker in Utah "was informed that the State of California does not accept parent home studies," a caseworker in San Joaquin County, California agreed to do a walkthrough of Father’s house. Father also told the DCFS caseworker "that he d[id] not want to begin participating in services until he [knew] if he [wa]s approved for placement for [Child] or not." The caseworker responded by encouraging him to begin services and sending him a list of resources in San Joaquin County. But Father did not accomplish all his goals for reunification, and in September 2018, the State sought termination of reunification services, which the juvenile court granted the following month. The court also determined DCFS had made reasonable efforts to reunify Father and Child.
¶5 In February 2019, following a bench trial, the juvenile court terminated Father’s parental rights,1 finding Father neglected Child and made "only token efforts" to communicate with or support Child, demonstrated "unfitness and failure of parental adjustment," and showed "unwillingness or inability to remedy circumstances that led to Child’s out of home placement." It also found that DCFS made reasonable efforts to reunify Father and Child and that it was in the best interest of Child to terminate Father’s parental rights. The court then concluded termination was strictly necessary for Child’s best interests. The court’s findings supporting this conclusion are addressed in turn.
¶6 The court found Father neglected Child based on Father and Mother’s "history of domestic violence," including Father calling Mother names "11–20 times in the past year," and "verbal, emotional[,] and physical altercations between them during the period of time that Mother was pregnant with [Child]." The court said Mother previously claimed that "Father was violent and had left bruises on [Child’s] cheeks," although she denied it at trial.2
¶7 The court noted Father’s "mental health issues" that "cause[ ] impairment in important area[s] of his life functioning" and recognized that although "the probability of significant deterioration in life functioning is high if not in treatment," Father did "not engage in on-going counseling for his mental health." Father claimed "his mental health conditions would not impact his ability to care for [C]hild," but the court found Father’s "untreated mental health conditions likely" render him "unable to provide care for the immediate and continuing physical and emotional needs of [Child] for extended periods of time, without ongoing treatment and intervention."
¶8 Although Father took a drug and alcohol assessment, the court recognized it was "based on self-report and Father did not report any history of drug or alcohol use or abuse ... and did not report a [conviction for driving under the influence]." The court concluded Father had "some history of the use of drugs or intoxicating substances, the extent of which is unknown."
¶9 Father had not worked for four years and received disability compensation for his "depression, anxiety[,] and obsessive-compulsive disorder
." He "testified that he also has an injury to his hand that prevents him from engaging in any type of manual labor." He had not paid child support or "contributed financially to [Child’s] physical, emotional[,] or medical care since" Child last lived with him, and he had "not provided [Child] with adequate food, clothing, shelter, education, or other care necessary for [Child’s] physical, mental, and emotional health or development." These findings led the court to conclude Father had neglected Child.
¶10 At the time of trial, Child had not lived with Father in nearly two years, in which time Father had only one in-person visit with Child, which Father ended thirty minutes early.3 Father made "multiple [video call] visits with [Child]" but Child "rarely interacted with" Father. During those visits, Father "trie[d] to be on screen to at least say ‘hello’ and then he typically just watche[d]" and "end[ed] the ... visit[s] early" if Child was "upset or in a bad mood." Father said his video calls were inconsistent because "his phone does not work well and he does not have internet at home." Additionally, despite Father’s history of domestic violence, the court said he had engaged in "[o]nly a bare minimum of therapy or treatment." The court found these actions amounted to "token efforts to provide support, prevent neglect[,] or to avoid being an unfit parent."
¶11 Child received therapy for "post-traumatic stress and trauma, neglect[,] and suspected physical abuse." Despite this, "Father could not identify the reasons that [C]hild was engaged with therapy." He testified that " ‘he knows [Child is] sensitive’ and ‘has special needs’ ... ‘ADHD or something like that.’ " Father could not "name [Child’s] doctor" and he "did not participate or communicate with the doctor" when Child had surgery; instead relying "on the DCFS caseworker and [F]oster [M]other for information." Father did not speak to Child’s preschool teacher and he did "not know" Child’s dentist, speech pathologist, physical therapist, audiologist, trauma specialist, or music teacher. He did not "enroll[ ] or engage[ ] in any age or developmentally specific and appropriate parenting instruction" and had "no services in place for [C]hild" but he testified that "if [C]hild were placed in his custody he would ‘make it a priority.’ "
The court also noted Father "failed to engage in in-person visits," despite DCFS’s offer "to pay for food and hotel stays" and he did not complete a background check "until one month after reunification services were terminated." Because Father could not "identify [Child’s] needs or needed services" and had "no services engaged for" Child, the court found he was "not capable of exercising proper and effective parental care in the near future."
¶13 In October 2018, reunification services were terminated. The parties stipulated to consolidating the parental rights termination and permanency hearings, and the court found that DCFS "made reasonable efforts to finalize the permanency goal," which at the time was to reunify Father and Child. On the record before us, Father does not appear to have objected to what DCFS’s attorney proffered about the reasonable efforts DCFS made or to the court’s ultimate...
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...of law for correctness, affording the court some discretion in applying the law to the facts." In re N.K., 2020 UT App 26, ¶ 15, 461 P.3d 1116 (quotation simplified). However, Mother acknowledges that did not raise this argument below, and she therefore asks us to review the court's reasona......