In re B.A..

2017 UT App 202

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF B.A.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.

M.T.,
Appellant,
v.
STATE OF UTAH,
Appellee.

Opinion
No. 20160708-CA
Filed November 9, 2017

Third District Juvenile Court, West Jordan Department
The Honorable Renee M. Jimenez
No. 1109173

Harini Venkatesan, Attorney for Appellant
Sean D. Reyes, John M. Peterson, and Emily I.
Iwasaki, Attorneys for Appellee
Martha Pierce, Guardian ad Litem

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.

CHRISTIANSEN, Judge:

¶1 M.T. (Mother) appeals the juvenile court’s order
terminating her parental rights to B.A. (Child). She contends
(1) that the juvenile court erroneously ruled that the Americans
with Disabilities Act (the ADA) was inapplicable, (2) that the
evidence was insufficient to support a finding that she was an
unfit parent, (3) that the evidence was insufficient to support a
finding that termination of Mother’s parental rights was in
Child’s best interests, and (4) that the evidence was insufficient
 In re B.A.

to support a finding that the Division of Child and Family
Services (DCFS) provided reasonable efforts to reunify Mother
and Child. We conclude that Mother failed to establish her ADA
status in a timely manner and that the evidence presented to the
juvenile court was sufficient to support the juvenile court’s
findings; accordingly, we affirm.

¶2 We recognize that juvenile court judges have special
training, experience, and interest in their field, as well as the
opportunity to judge credibility firsthand; consequently, we
review a juvenile court’s decision to terminate parental rights
deferentially and will not disturb the juvenile court’s findings
and conclusions unless the preponderance of the evidence
clearly militates against the findings made or the court has
otherwise abused its discretion. In re A.B., 2007 UT App 286,
¶ 10, 168 P.3d 820; In re R.A.J., 1999 UT App 329, ¶ 6, 991 P.2d
1118.

I. Americans with Disabilities Act

¶3 Mother contends that “[t]he juvenile court erred in ruling
that [the ADA] was inapplicable due to [Mother’s] failure to
request an accommodation previously.” 1 Although Mother’s
phrasing suggests that the juvenile court ruled that the ADA was

1. Utah Rule of Appellate Procedure 24(a)(5)(A) (2016) requires
that an appellant’s brief contain “citation to the record showing
that the issue was preserved in the trial court.” Mother’s brief
states, “This issue was preserved by Appellant’s counsel during
termination proceedings.” This cursory statement of
preservation is insufficient because it merely asserts that the
issue was preserved and does not show where in the record the
issue was preserved. Despite this deficiency, we address the
merits of the claim, in part because the State provides citations
showing that the issue was brought to the juvenile court’s
attention, albeit not until Mother’s closing argument.

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inapplicable, the record shows that the court actually ruled that
Mother simply had not established her ADA status. We
therefore understand Mother’s contention as a challenge to the
sufficiency of the evidence supporting the juvenile court’s
finding that Mother had not established her ADA status. Such a
challenge presents a mixed question of law and fact, see In re
adoption of Baby B., 2012 UT 35, ¶¶ 40–47, 308 P.3d 382, because it
involves both the factual question of what evidence had been
presented to the court and the legal question of what quantum of
evidence would satisfy the ADA disability standard.
Accordingly, the court’s ruling is a mixed finding that “merit[s]
some deference on appeal.” Id. ¶ 46.

¶4 Mother first mentioned the ADA at the termination trial.
The juvenile court found that Mother had not established that
she suffered from a medical condition of the type necessitating
accommodations under the ADA and that Mother never
requested any accommodation:

[Mother] has not been diagnosed with a medical
condition that prohibits her from engaging [in] or
attending a drug treatment program, domestic
violence treatment program or from obtaining
employment. During the entire time of the
reunification services time period,[2] [Mother] never
claimed she was disabled or referenced the
Americans with Disabilities Act. [Mother] never
requested a change or an accommodation to the
Child and Family Plan to address her medical
issues.

2. Mother was offered reunification services from at least June
24, 2015, when the child and family services plan was read into
the record, to August 16, 2016, when the court terminated
Mother’s parental rights.

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¶5 On appeal, Mother claims that she “had repeatedly put
DCFS on notice about her ongoing medical issues” but does not
cite to any part of the record in support of this claim. Instead, she
relies on her testimony at the termination hearing to the effect
that, due to the lapse of her insurance, she had been forced to
stop seeing a primary care physician and had been forced to
cancel a scheduled surgical procedure. There is no record
indication that, prior to the termination hearing, Mother notified
DCFS that she had a disability, i.e., that she suffered from “a
physical or mental impairment that substantially limits one or
more major life activities.” See 42 U.S.C. § 12102(1)(A) (2012). 3

3. At oral argument before this court, Mother asserted for the
first time that, because she informed DCFS of her medical
conditions, DCFS or the court had a duty to investigate whether
Mother’s medical conditions amounted to an ADA-qualifying
disability. Mother analogized to a section of the Indian Child
Welfare Act (ICWA) which provides that certain ICWA
provisions apply “where the court knows or has reason to know
that an Indian child is involved.” 25 U.S.C. § 1912(a) (2012)
(emphasis added); see In re M.J., 2011 UT App 398, ¶ 31, 266 P.3d
850 (explaining that a mere hint or suggestion of Indian ancestry
is insufficient to trigger ICWA unless it is sufficiently reliable
and supports a “low but reasonable probability” that the child
qualifies). According to Mother, the ADA should similarly be
read to apply its protections whenever the court has “reason to
know” that an individual has a disability.
Mother’s assertion suffers from factual and legal
infirmities. First, as noted above, in her related claims, Mother
did not provide record citations showing how and when she
informed DCFS of her alleged medical conditions, let alone
ADA-qualifying disabilities. Second, unlike ICWA, the ADA
does not contain a “reason to know” provision. In any event, this
argument was raised for the first time at oral argument, and this
court “will not reverse based on an unbriefed argument raised
(continued…)

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 In re B.A.

¶6 There is no doubt that the ADA applies to the
government’s provision of reunification services. See In re K.C.,
2015 UT 92, ¶ 20, 362 P.3d 1248. And there is no bright-line bar
to raising an ADA claim for the first time at the final termination
proceeding or trial. See id. ¶ 24 (holding that Utah law does not
preclude invocation of the ADA “at the eleventh hour of a
termination proceeding”). But see id. ¶ 27 (noting that a child’s
interest in permanency and stability favors “[t]he expeditious
resolution of a termination proceeding” and, as a result, “[a]
parent who waits until the eleventh hour to request a
modification under the ADA may thoroughly undermine [his or
her] ability to establish that such modification is reasonable”).

¶7 However, to succeed on the merits of an ADA claim in the
context of reunification, the parent must establish that he or she
is a “‘qualified individual with a disability.’” Id. ¶ 22 (quoting 42
U.S.C. § 12131(2)). Here, Mother first mentioned the ADA on the
second day of a two-day trial during her closing arguments.
While she claimed that her “condition clearly [was] a disability
as defined by the ADA,” she did not further identify from what
condition she suffers. 4 Nor did she provide the juvenile court
with evidence that she had been diagnosed with a medical
condition that qualified for ADA accommodations. 5

(…continued)
for the first time at oral argument.” In re Gregory, 2011 UT App
170, ¶ 10, 257 P.3d 495.

4. On appeal, Mother’s briefing repeatedly refers to a medical
condition but does not identify it.

5. On the second day of trial, Mother introduced several exhibits.
These included records of a doctor examining and diagnosing
Mother with a possible ovarian cyst, a condition that does not
usually qualify as a disability. Additionally, Mother introduced a
summary of her application for disability benefits; that
(continued…)

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¶8 Aside from Mother’s vague claims of a disability, none of
the evidence presented to the juvenile court suggested that
Mother’s medical conditions amounted to a disability that
should have been addressed in the service plan. Consequently,
although Mother’s eleventh-hour invocation of the ADA was
timely, see In re K.C., 2015 UT 92, ¶ 24, it was not supported by
any substantial evidence, see id. ¶ 22. We conclude that Mother
has not shown clear error in the juvenile court’s determination
that Mother’s statement that she suffered from an ADA-
qualifying disability was insufficient to satisfy her burden of
proof. See In re adoption of Baby B., 2012 UT 35, ¶ 46; see also In re
K.C., 2015 UT 92, ¶ 22 (noting that the parent bears the burden of
proof to establish an ADA-qualifying disability). 6

II. Unfitness

¶9 Mother next contends that the evidence was insufficient
to support the juvenile court’s determination that she was an
unfit parent. The termination of Mother’s parental rights was
appropriate so long as sufficient evidence existed to support at
least one of the unfitness grounds found by the court and to
support the court’s finding that such termination was in Child’s
best interests. See In re R.A.J., 1999 UT App 329, ¶ 7, 991 P.2d
1118.

(…continued)
application was submitted on July 7, 2016 (roughly a week
before trial) and did not identify Mother’s claimed disability.

6. We also note that, on appeal, Mother primarily frames this
claim as an explanation for her failed urinalysis tests. However,
even if Mother had valid prescriptions to justify any positive
drug tests, the existence of such prescriptions would not
necessarily nullify the juvenile court’s finding that “[Mother] has
been inconsistent in her drug testing, missing more tests than
she has completed.”

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 In re B.A.

¶10 Here, the juvenile court found (1) that Mother was an
unfit or incompetent parent; (2) that Mother had substantially
neglected, willfully refused, or had been unable or unwilling to
remedy the circumstances that caused Child to be in an out-of-
home placement; (3) that Mother had made only token efforts to
support Child, to eliminate the risk of harm to Child, or to avoid
being an unfit parent; and (4) that there was a substantial risk
that Child would suffer serious detriment if returned to Mother’s
custody. The court explained that Mother had “failed to comply
with the child and family plan and with court orders and as a
result, [Mother had] demonstrated a failure of parental
adjustment, unfitness and/or neglect and failure to remedy out-
of-home placement.” The court detailed several grounds for
finding Mother unfit, including that Mother was unfit due to
“habitual or excessive use of intoxicating liquors, controlled
substances, or dangerous drugs that render the parent unable to
care for the child.” Utah Code Ann. § 78A-6-507(1)(c)
(LexisNexis 2012); id. § 78A-6-508(2)(c). Because this single
ground is sufficient to support the court’s decision to terminate
Mother’s parental rights, we do not further address or express
any opinion as to the other grounds found by the court.

¶11 The court highlighted Mother’s extensive use of
painkilling drugs, finding that Mother did not complete a court-
ordered substance abuse evaluation for over 9 months; that
Mother had not started, much less successfully completed, a
substance abuse treatment program; that Mother had missed
more ordered drug tests than she had completed; that Mother
had tested positive for various drugs at least 16 times but “has
not provided proof of prescription medications to account for all
of the positive results”; that Mother visited hospital emergency
rooms at least 23 times including nine visits in a single month;
that those visits were spread across 5 different hospitals; that
Mother ignored recommendations that she follow up these visits
by making appointments with non-emergency specialists; that
multiple emergency-room physicians reported that Mother left

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 In re B.A.

the hospital after being denied painkilling drugs but before their
examinations were complete; and that multiple emergency-room
physicians reported their concern regarding Mother’s “drug
seeking behavior.” The court also found that Mother had not
candidly reported her emergency room visits to her DCFS
caseworker and had not disclosed to the caseworker that she had
received controlled substances requiring prescriptions during
those visits. The court then summarized these findings:

[Mother] is either unable or unwilling to
participate in a drug treatment program. She has
continued to engage in drug seeking behaviors as
evidenced by her multiple visits to the emergency
room, seeking narcotics and leaving the emergency
room when she is not administered IV narcotics or
a prescription for pain medication. Furthermore,
[Mother] has failed to follow up with the
recommended medical care[.]

¶12 On appeal, Mother primarily argues that she is not an
unfit parent as a result of habitual or excessive use of controlled
substances. She asserts, without citation to the record, that the
juvenile court erroneously deemed her missed drug tests to be
positive drug tests. Our review of the court’s findings does not
support this assertion. Rather, the court appears to have
considered separately the facts that Mother missed more drug
tests than she completed and that, of the tests she did take,
sixteen were positive for opiates, one was positive for
benzodiazepines, and one was positive for oxycodone. We
cannot see how these considerations support Mother’s assertion
that the court treated her missed tests as positive tests.

¶13 Mother also argues that it was improper for the court to
construe medical documents, which she had submitted, as
evidence against her interests. Her single sentence argument in
this regard is not supported by citation to any authority.
Moreover, the interpretation of evidence is within the sole

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province of the factfinder. Cf. State v. Comer, 2002 UT App 219,
¶ 15, 51 P.3d 55 (“In a bench trial or other proceeding in which
the judge serves as fact finder, the court has considerable
discretion to assign relative weight to the evidence before it. This
discretion includes the right to minimize or even disregard
certain evidence before it.” (citation and internal quotation
marks omitted)). Absent any stricture limiting the use of a
particular piece of evidence, we see no impropriety in a
factfinder interpreting a piece of evidence to support a different
proposition than the one intended by the party who introduced
the evidence.

¶14 Finally, Mother argues that she “substantially complied
with the Court ordered service plan which was intended to
remedy the circumstances that caused the child to be out of her
home.” Mother claims that she “had housing and employment,
previously completed domestic violence and substance abuse
treatment, had subsequently completed two further assessments,
was engaging in couples counseling with [Child’s father] to
address the underlying cause of the domestic violence, and was
actively engaged in her regular visitation of [Child].” However,
Mother does not provide any citation to the record to support
these claims, some of which directly contradict the juvenile
court’s findings. For example, while Mother now claims she
completed substance abuse treatment, the court actually found
that “[Mother] has not started or successfully completed a
substance abuse treatment program.” 7

7. The State suggests that Mother may be referring to mental
health treatment she received before Child was removed from
her care. However, as the State correctly explains, the mental
health treatment did not include a substance abuse treatment
program and any treatment predating Child’s removal from
Mother’s care could hardly have remedied the circumstances
that led to such removal.

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¶15 Mother’s conclusory claims in this regard fall short of
establishing error in the juvenile court’s findings of fact. An
appellant bears the burden of proving error in the juvenile
court’s findings and cannot do so by simply claiming, without
citing any record evidence, that the opposite finding should have
been made.

¶16 Mother has not demonstrated that the evidence clearly
militates against the findings made regarding her drug use and
has not shown that the juvenile court otherwise abused its
discretion in making them. See In re A.B., 2007 UT App 286, ¶ 10,
168 P.3d 820; In re R.A.J., 1999 UT App 329, ¶ 6, 991 P.2d 1118.
Because the court did not abuse its discretion in making those
findings, we see no error in the juvenile court’s determination
that Mother was an unfit parent. 8

III. Best Interests

¶17 Mother next contends that the evidence was insufficient
for the juvenile court to have properly found that termination of
her parental rights was in Child’s best interests. See generally
Utah Code Ann. § 78A-6-509(1) (LexisNexis 2012) (listing factors
a juvenile court must consider before terminating a non-
custodial parent’s rights); id. § 78A-6-510 (LexisNexis 2012)
(listing factors a juvenile court must consider before terminating
parental rights to a child currently placed in a foster home). In
determining whether termination of parental rights is in a child’s
best interests, courts are directed to consider the physical,
mental, and emotional condition and needs of the child. See id.

8. We note that although we only discuss unfitness due to
substance abuse, the juvenile court also found that Mother was
unfit as a result of her failure to complete mental health
treatment, her failure to complete domestic-violence treatment,
and her history of violent behavior. See Utah Code Ann. § 78A-6-
508(2) (LexisNexis 2012).

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§ 78A-6-509(1)(a). Although presented as a single issue, Mother’s
arguments center on three areas: Child’s behavioral problems,
Child’s emotional bonds, and DCFS’s alleged provision of
services to the foster parents.

¶18 Mother first argues that Child’s behavioral problems were
the result of being removed from Mother and that “[i]t is highly
probable that the behaviors [Child] displayed when [Child] went
to the current foster placement could be attributed to the trauma
of being removed from [Mother] and coming into DCFS
custody.” We note Mother presented this argument to the
juvenile court, which considered and rejected it. In support of
this argument on appeal, Mother points only to the testimony of
Child’s therapist. However, this testimony was limited to the
therapist’s opinion that it was possible that Child’s mood and
isolation was due to the removal. The therapist did not suggest
that Child’s significant cognitive and developmental deficits
could also be attributed to the removal. 9 In the absence of

9. When Child was first placed with the foster family, Child
“displayed some negative behaviors including swearing, anger,
impulsiveness, violence[, and] had a difficult time socializing
with other children.” For example, Child “would hurt someone
else to get what [Child] wanted [and] would hit, kick or spit” to
do so. Since being placed with the foster family, Child “made
significant progress,” “no longer has temper tantrums,” and
“can now verbalize when [Child] is unhappy or angry.” With
regard to Child’s developmental delays, the juvenile court noted
that despite being four and a half years old when placed with
the foster family, Child “could not count past the number three,”
“did not understand the concept of age,” and did not know the
alphabet. Mother does not challenge the juvenile court’s findings
that, after his placement with the foster family, Child’s
behavioral problems had improved significantly and Child was
on track in school in all areas except articulation.

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 In re B.A.

evidence suggesting that Child’s cognitive and developmental
deficits were caused by the removal, we cannot conclude that the
balance of the evidence weighed against the juvenile court’s
finding. Simply making the same argument rejected by the trial
court afresh is insufficient to show that the preponderance of the
evidence clearly militated against the juvenile court’s findings.
See In re A.B., 2007 UT App 286, ¶ 10, 168 P.3d 820; In re R.A.J.,
1999 UT App 329, ¶ 6, 991 P.2d 1118.

¶19 Turning to Child’s emotional needs, Mother describes
testimony that Child had emotional bonds with Mother. But as
the State notes, a loving relationship between Mother and Child
does not necessarily mean termination is not in Child’s best
interests. See In re J.F., 2013 UT App 288, ¶ 4, 317 P.3d 964.
Rather, the existence of such a relationship is one of several
factors to be considered by the juvenile court. See, e.g., id. ¶¶ 4–5;
In re B.R., 2007 UT 82, ¶ 15, 171 P.3d 435. The juvenile court’s
findings indicate that the court was aware of Child’s love for
Mother and that it weighed evidence of that bond against other
evidence showing Child’s love for the foster parents. The court
concluded that despite Child loving both Mother and the foster
parents, Child’s best interests would be served by terminating
Mother’s parental rights because she had not “sufficiently
addressed [her] own needs let alone . . . demonstrate[d] that
[she] can make sure [Child’s] needs are also met.” Thus, the
court considered the emotional bond Mother highlights on
appeal and determined it was outweighed by other evidence.
The preponderance of the evidence does not clearly militate
against the court’s finding that termination was in Child’s best
interests, and we will therefore not substitute our judgment for
that of the juvenile court. See In re A.B., 2007 UT App 286, ¶ 10;
In re R.A.J., 1999 UT App 329, ¶ 6.

¶20 Mother next argues that the foster parents had “financial
means and adequate support from DCFS” and that if she had
been provided those same services, Child would have thrived
with her. In addition to the behavior and emotional issues

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discussed above, the juvenile court noted that Child suffered
from physical health conditions when he was removed from
Mother, including being underweight and having extensive
dental problems. 10 The court found that the foster family had
successfully addressed these issues. On appeal, Mother asserts
that because DCFS did not provide her with the resources for
Child’s therapy, preschool, and regular pediatric visits before
Child’s removal, “it is impossible to determine that [Child]
would not do well in [Mother’s] care” if DCFS had done so. This
assertion could be compelling if the situation were as Mother
alleged. However, Mother’s undeveloped argument in this
regard is limited to four sentences and provides no record
citations suggesting that DCFS was in fact paying for the
services that were provided by the foster family. Moreover,
DCFS was charged with acting in Child’s best interests to reverse
the physical, emotional, and mental health issues Child had
developed while in Mother’s custody, and it seems logical that
the therapeutic regimen involved removing Child from the
situation that created the problems.

¶21 The juvenile court made extensive findings regarding
Child’s best interests before concluding that termination of
Mother’s parental rights was “strictly necessary.” On appeal,
Mother’s arguments are largely based on conclusory statements
that contradict those findings, but which cite neither the record
nor authority. Mother has therefore failed to carry her burden of
showing that the preponderance of the evidence clearly militated
against the court’s findings. We therefore have no occasion to
substitute our judgment for that of the juvenile court. See In re
A.B., 2007 UT App 286, ¶ 10; In re R.A.J., 1999 UT App 329, ¶ 6.

10. Child’s dental problems included extensive tooth decay,
requiring four crowns and “seven or eight” cavity fillings.

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IV. Reasonable Reunification Efforts

¶22 Mother next contends that the evidence was insufficient
to support the juvenile court’s finding that DCFS “provided
reasonable efforts to reunify the family.” Specifically, Mother
argues that DCFS “imputed to Mother an underlying substance
abuse issue rather than accepting at face value all the
overwhelming documentation which showed Mother in fact had
recurring medical issues.” She asserts that the medical issues
“prevented her from submitting to each and every [urinalysis]
test.” Mother also claims that her caseworkers “advised Mother
to engage in [urinalysis] testing and in treatment at child and
family team meetings, [but] they failed to provide any alternate
services despite Mother’s repeated requests.”

¶23 However, Mother fails to provide any citation to the
record evidencing the alleged “overwhelming documentation”
of her medical issues. As noted above, supra ¶¶ 5, 7, Mother did
not provide the court with any evidence of a disability that
would require some sort of accommodation to otherwise
complete her drug-testing requirements. And nowhere in the
record or in the briefing on appeal does Mother identify from
which disability she claims to suffer. Instead, she relies on a
“Substance Abuse and Mental Health Assessment” which
documented her claim that she had been prescribed pain
medication. But her statement to a counselor that she had been
prescribed pain medication was not supported by a doctor’s
prescription for such medication. 11 Similarly, Mother does not
cite any part of the record to support her claim that she
requested alternate services. Moreover, even if Mother had done
so and been refused, she has not explained why the services she
was offered fell below a reasonable standard.

11. The assessment also noted that Mother’s DCFS caseworker
“contradicted most of what [Mother] reported at the time of her
assessment.”

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¶24 Mother also argues that DCFS required her to engage in
duplicative services. Specifically, she asserts that she had
completed mental health therapy but was required by DCFS to
participate in such therapy again. To support this assertion, she
points to testimony by her caseworkers that she had completed
mental health therapy. This argument is not persuasive. Both
caseworkers were describing mental health therapy that Mother
participated in before Child was removed from her care. Such
therapy did not concern, let alone cure, the circumstances that
led to Child’s removal. Thus, the services were not unnecessarily
duplicative. And again, even if they were duplicative, Mother
does not explain why the provision of duplicative services
undermines the court’s finding that the services Mother received
were reasonable.

¶25 Affirmed.

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