In re N.K.

2020 UT App 26

THE UTAH COURT OF APPEALS

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

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

Opinion
No. 20190413-CA
Filed February 21, 2020

First District Juvenile Court, Logan Department
The Honorable Angela Fonnesbeck
No. 1152307

Michael C. McGinnis, Attorney for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem

JUDGE KATE APPLEBY authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and DIANA HAGEN
concurred.

APPLEBY, Judge:

¶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
 In re N.K.

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.

BACKGROUND

¶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

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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.

Neglect

¶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

1. Mother’s parental rights were likewise terminated, but she is
not a party to this appeal.

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[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.

2. The court found Mother’s testimony “wholly unreliable.”

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Token Efforts

¶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.”

Unfitness and Failure of Parental Adjustment

¶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.’”

3. At oral argument, Father’s counsel stated he thought Father
had to end the visit early because a friend who drove him to
Utah needed to leave. But at the termination hearing, Father said
Child “just left” the room during the visit and that Child
“probably got bored or something.” When asked if he recalled
being offered time to finish the visit, he responded in the
affirmative and said, “But I didn’t know how long we had left. I
thought it was like less than half an hour or so. He was already, I
guess he already got bored of all those toys or something. That’s
why.” The DCFS caseworker testified that Father said he did not
“want to force” Child to finish the visit.

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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.’”

Unwillingness or Inability to Remedy Circumstances That Led to
Child’s Out-of-Home Placement

¶12 The court noted that although “Father testified that he has
completed the Child and Family Plan specifically stating he ‘has
done everything asked of him,’” Child’s DCFS caseworker
indicated otherwise. Specifically, the caseworker testified that

Father ha[d] not completed an accurate drug and
alcohol assessment that discusses prior DUI
charges and suicide attempt by overdose; ha[d] not
completed a domestic violence assessment; ha[d]
not completed an age appropriate parenting
course; ha[d] failed to visit consistently; only
participate[d] collaterally on [video] calls; ha[d]
failed to consistently provide[] random drug tests
and ha[d] failed to engage in any way with
[Child’s] services.

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

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capable of exercising proper and effective parental care in the
near future.”

Reasonable Efforts

¶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 finding of reasonable efforts. In
its final order terminating Father’s parental rights, the court
elaborated that the reasonable efforts included DCFS visiting
with the foster family, communicating with Mother and Father
“at least twice monthly,” and contacting California family
services to determine what services such as “random drug
testing, mental health treatment, [and] domestic violence
treatment and substance abuse treatment” were available in
Father’s county. The court noted DCFS also “review[ed] and
research[ed] curriculum of internet parenting class[es], offer[ed]
to pay for brief hotel stays, contact[ed] . . . parents to arrange for
[C]hild’s medical treatment[,] and purchas[ed] a car seat for
[C]hild.” But the court found Father “made no significant
improvement in [his] parenting skills or [his] understanding of
[C]hild’s specific needs” and did not demonstrate an “ability to
provide a safe, secure[,] and permanent home for [Child].”

Child’s Best Interests

¶14 Finally, the court determined that termination of Father’s
parental rights was strictly necessary for Child’s best interests. It
noted Father had “no established relationship with” Child and
could not identify Child’s special needs, nor did he “have
services in place to address [Child’s] behavioral and
developmental needs.” In contrast, Child had “developed bonds

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 In re N.K.

of love and affect[ion] with” his foster family. Child called his
foster parents “mom” and “dad” and “relie[d]” on them,
“finding comfort in their care.” While in foster care, Child’s
behavioral and speech problems improved. At the time of trial,
Child had lived with his foster family “for approximately half of
his life.” His foster parents worked with Child’s therapist to “be
trained in trauma response,” and the therapist “believe[d] that
removing [Child] from [F]oster [M]other would damage any
attachment bonds” he had developed. The court found that the
foster parents were “willing to adopt” Child and that they
“provide[d] a secure, safe[,] and permanent residence for [Child]
free from abuse, neglect[,] or other destructive life style patterns
and behaviors.” It also found there was “no reasonable or
feasible alternative to termination of parental rights that would
provide [Child] with safety and security, and a permanent
home.” The court determined “Permanent Custody and
Guardianship would not be appropriate as [Child] has no
established bond with . . . Father and is very young,” so “no
legal basis exist[ed] that would justify a preservation of the
parent-child relationship.”

ISSUES AND STANDARDS OF REVIEW

¶15 Father raises two issues on appeal. 4 First, he contends the
juvenile court erred when it found DCFS made reasonable

4. Father also contends insufficient evidence supported two of
the juvenile court’s articulated grounds to terminate his parental
rights, namely, that he was an unfit parent and that he neglected
Child. But the court found additional grounds for termination. It
found Father “substantially neglected, willfully refused[,] or
[was] unable or unwilling to remedy the circumstances that
caused” Child to be placed in foster care and that he would “not
be capable of exercising proper and effective parental care,” see
Utah Code Ann. § 78A-6-507(1)(d) (LexisNexis 2018); that Father
(continued…)

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efforts to reunify him with Child. A court’s determination that
DCFS “made reasonable efforts to provide reunification
services” involves an “application of statutory law to the facts”
that presents a “mixed question[] of fact and law,” requiring
review of “the juvenile court’s factual findings for clear error
and its conclusions of law for correctness, affording the court
some discretion in applying the law to the facts.” In re M.C., 2003
UT App 429, ¶ 16, 82 P.3d 1159 (quotation simplified).

¶16 Second, Father contends the court wrongfully found it
was strictly necessary for Child’s best interests to terminate his
parental rights. “The ultimate decision about whether to
terminate a parent’s rights presents a mixed question of law and
fact. In such situations, we review a [juvenile] court’s findings
for clear error and its conclusions of law for correctness,
affording the court some discretion in applying the law to the

(…continued)
“experienced a failure of parental adjustment” in that he was
“unable or unwilling within a reasonable time to substantially
correct the circumstances, conduct, or conditions that led to”
Child’s placement in foster care, see id. §§ 78A-6-502(2), 507(1)(e);
and that he “made only token efforts to support or communicate
with [Child], prevent neglect of [Child], eliminate the risk of
serious harm to [Child], or to avoid being an unfit parent,” see id.
§ 78A-6-507(1)(f). Father does not challenge any of these
alternative grounds, and because “the court may terminate all
parental rights with respect to a parent if the court finds any
one” of the enumerated statutory grounds for termination, see id.
§ 78A-6-507(1), we do not reach the merits of Father’s
insufficiency-of-the-evidence argument, see Howick v. Salt Lake
City Corp., 2018 UT 20, ¶ 5, 424 P.3d 841 (noting an appellate
court “will not reverse a ruling of the district court that rests on
independent alternative grounds where the appellant challenges
only [some] of those grounds” (quotation simplified)).

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facts.” In re B.T.B., 2018 UT App 157, ¶ 8, 436 P.3d 206 (quotation
simplified), cert. granted, 440 P.3d 692 (Utah 2019).

ANALYSIS

I. Reasonable Efforts

¶17 The juvenile court terminated reunification services in
October 2018. And according to the court’s findings upon
termination of parental rights after trial in February 2019, Father
stipulated to the finding that DCFS made reasonable efforts
toward reunification services. At oral argument before this court,
Father argued he never stipulated to DCFS’s reasonable efforts
and said the court’s finding of a stipulation was error. In support
of this contention, he points to a minute entry and order from
the permanency hearing that says, “Based on the stipulation of
the parties, the permanency and the termination matter is
consolidated.” On this record, it does appear that the court’s
finding of a stipulation as to whether DCFS’s efforts to reunify
Father and Child were reasonable was perhaps broader than the
parties intended. But, as Father conceded at oral argument, he
did not object to what appears to be an error in the court’s
ruling. See In re M.W., 2000 UT 79, ¶ 29, 12 P.3d 80 (declining to
consider unpreserved claim of DCFS’s failure to make
reasonable efforts).

¶18 In any event, we exercise our discretion to reach the
merits of this issue, see State v. Johnson, 2017 UT 76, ¶¶ 41–43, 416
P.3d 443 (affirming that the Utah Court of Appeals has discretion
to reach waived or unpreserved issues), and affirm the court’s
finding that DCFS made reasonable efforts to reunify Father and
Child. These efforts included the caseworker visiting Child
monthly at the foster home; arranging services for Child through
Early Intervention; maintaining contact with Child’s care
providers; “at least twice monthly contact[ing] . . . Father by
phone or text or email[;] discussing services with [Father;]
responding to questions from . . . Father[;] arrang[ing] and

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 In re N.K.

scheduling [video call] visits [with Father]”; completing
paperwork for Father to determine if the case could be
transferred to California; “making[] multiple contacts with
California family services regarding services available to [Father]
. . . in areas of random drug testing, mental health treatment,
domestic violence treatment[,] and substance abuse treatment;
review[ing] and researching curriculum of internet parenting
class[es]; offering to pay for brief hotel stays”; communicating
with Father regarding Child’s medical treatment; and
purchasing a car seat for Child.

¶19 Father has not met his burden on appeal to demonstrate
that the services provided or offered by DCFS were inadequate
or insufficient or that the juvenile court erred in making this
determination. See In re A.W., 2018 UT App 217, ¶¶ 30, 31, 437
P.3d 640 (affirming a finding of reasonable efforts where the
father failed “to identify any facts in the record that suggest
DCFS did not make reasonable efforts to provide him with
reunification” and ignored “several times in the record in which
the juvenile court made an unchallenged periodic finding—
before its termination order—that DCFS had made reasonable
efforts to provide him with reunification services”); In re K.K.,
2017 UT App 58, ¶ 5, 397 P.3d 745 (per curiam) (“The process of
reunification is a two way street which requires commitment on
the part of the parents, as well as the availability of services from
the State.” (quotation simplified)). Father has not engaged with
the court’s determination as to what DCFS did do and has not
shown how these efforts were not sufficient.

¶20 While Father argues on appeal that DCFS’s assistance was
inadequate, that DCFS could not pay for certain services for him
because he lived out of state, that he did not have the financial
resources to travel to Utah or to pay for certain treatment, and
that the evaluations and assessments he did obtain failed to meet
DCFS’s standards and requirements, these alleged challenges are
not failures on the part of DCFS. And Father’s complaints about
what he considers to be insufficient help from DCFS should have

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been brought to the attention of the juvenile court to address
before the termination trial. Further, the court determined,
“Despite these efforts[, Father] ha[s] made only minimal effort to
address [his] past conduct or behavior and ha[s] demonstrated
little improvement in [his] overall parenting ability and ability to
provide a safe, secure[,] and permanent home for [Child].” We
are sympathetic to Father’s situation, but his challenge to the
services provided and the efforts made by DCFS prior to the trial
is unpersuasive.

II. Child’s Best Interests

¶21 To terminate a parent’s rights to his or her child, the
juvenile court must make two findings. First, the “court must
find that one or more of the statutory grounds for termination
are present.” In re B.T.B., 2018 UT App 157, ¶ 13, 436 P.3d 206,
cert. granted, 440 P.3d 692 (Utah 2019). Second, the “court must
find that termination of the parent’s rights is in the best interests
of the child.” Id. (quotation simplified); see also Utah Code Ann.
§§ 78A-6-503(12), -507(1) (LexisNexis 2018). These findings must
be supported by clear and convincing evidence. In re B.T.B., 2018
UT App 157, ¶ 13. Because a “court’s final decision regarding
termination of parental rights should be afforded a high degree
of deference,” we “will overturn a termination decision only
when the result is against the clear weight of the evidence or
leaves us with a firm and definite conviction that a mistake has
been made.” In re C.R.C., 2019 UT App 153, ¶ 24, 450 P.3d 1169
(quotation simplified).

¶22 Here, the court found Father neglected Child; he was an
“unfit or incompetent parent[]”; he “substantially neglected,
willfully refused[,] or [was] unable or unwilling to remedy the
circumstances that caused” Child to be placed in foster care and
he would “not be capable of exercising proper and effective
parental care”; he “experienced a failure of parental adjustment”
in that he was “unable or unwilling within a reasonable time to
substantially correct the circumstances, conduct, or conditions

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that led to” Child’s placement in foster care; and he “made only
token efforts to support or communicate with [Child], prevent
neglect of [Child], eliminate the risk of serious harm to [Child],
. . . or to avoid being an unfit parent.” See Utah Code Ann.
§ 78A-6-507(1)(b)–(f). Because the court need only make a
finding as to one statutory ground for termination, id. § 78A-6-
507(1), and because Father challenges only two of the five
grounds on which the court supported termination, see supra
¶ 15 n.4, we conclude the court sufficiently made the first
finding and turn our attention to whether termination was in
Child’s best interests.

¶23 “Because the relationship between parent and child is
constitutionally protected, a court may only terminate parental
rights upon a finding that termination is strictly necessary to the
best interests of the child.” In re C.T., 2018 UT App 233, ¶ 12, 438
P.3d 100 (quotation simplified); see also Utah Code Ann. § 78A-6-
507(1). The best interest inquiry is “a subjective assessment
based on the totality of the circumstances surrounding the
child,” In re B.T.B., 2018 UT App 157, ¶ 47, (quotation
simplified), taken from the child’s point of view, and mandates a
court “terminate parental rights only in situations when it is
absolutely essential to do so,” id. ¶ 54. In conducting the best
interests inquiry, the court must also “explore whether other
feasible options exist that could address the specific problems or
issues facing the family.” Id. ¶ 55.

¶24 Father claims the court failed to consider “any
alternatives to termination of [his] parental rights.” But a
court need only “consider or explore alternatives to termination”;
if it finds “no such alternatives are available or articulates
supported reasons for rejecting alternatives that do exist,
such findings are entitled to deference on appeal,” In re C.T.,
2018 UT App 233, ¶ 16, and the court did that here. Initially, the
court ordered reunification as DCFS’s goal for Father and Child.
But, after determining DCFS made reasonable efforts to reunify
Father and Child, which efforts were described in the court’s

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termination order, the court changed Child’s primary
permanency goal from reunification with Father and terminated
reunification services. And before terminating Father’s parental
rights, the court concluded there were “no reasonable or feasible
alternative[s] to termination of parental rights that would
provide [Child] with safety and security, and a permanent
home.” Specifically, the court found that “Permanent Custody
and Guardianship would not be appropriate as [Child] has no
established bond with . . . Father and is very young.” The court
also found that the foster family was “willing to adopt” Child,
which would provide Child with much needed stability and
permanency and could not occur absent termination of parental
rights.

¶25 But the court did not end its analysis there. In its best
interest inquiry, the court found it significant that Child and
Father had “no established relationship,” that Father had not
participated in Child’s therapy, and that Child has special needs
that Father cannot identify. Specifically, the court heard
testimony that a child suffering from Child’s symptoms “needs a
secure attachment to ensure optimal future development. The
secure attachment requires a caregiver who can manage
[Child’s] affect, is attuned to his needs, can provide a consistent
response[,] and provide a routine.” The court found that Father
did not have services in place to address Child’s behavioral and
developmental needs. On the other hand, Child had “developed
bonds of love and affect[ion]” with his foster family; Child’s
behavioral and speech problems improved while in his foster
family’s care; and the foster family attended therapy with him
and became “trained in trauma response,” had services in place
to meet Child’s special needs, and had cared for him “for
approximately half of his life.” The court also noted the foster
family “provide[d] a secure, safe[,] and permanent residence . . .
free from abuse, neglect[,] or other destructive life style patterns
and behaviors.” We conclude the court did not err in
determining it was strictly necessary to terminate Father’s
parental rights.

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CONCLUSION

¶26 Father did not adequately carry his burden on appeal in
challenging the juvenile court’s finding that DCFS made
reasonable efforts to reunify him and Child. Additionally, the
court did not err when it found terminating Father’s parental
rights was strictly necessary to Child’s best interests and Father
did not challenge all the statutory grounds that supported
termination. Accordingly, we affirm.

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