2016 UT App 3

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF M.D., J.D., AND A.D.,

PERSONS UNDER EIGHTEEN YEARS OF AGE.

A.D.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Per Curiam Decision

No. 20150955-CA

Filed January 7, 2016

Third District Juvenile Court, Salt Lake Department

The Honorable Charles D. Behrens

No. 1094548

Sheleigh A. Harding, Attorney for Appellant

Sean D. Reyes and John M. Peterson, Attorneys

for Appellee

Martha Pierce, Guardian ad Litem

Before JUDGES GREGORY K. ORME and J. FREDERIC VOROS JR., and

JUSTICE JOHN A. PEARCE.

1

PER CURIAM:

¶1 A.D. (Father) appeals the order terminating his parental 

rights to M.D., J.D., and A.D.2 We affirm.

 

1. Justice John A. Pearce sat by special designation, as authorized 

by law. See generally Utah R. Jud. Admin. 3-108(3).

2. Another child born during this case, whose initials are also 

J.D., is not involved in this appeal.
In re M.D.

20150955-CA 2 2016 UT App 3

¶2 ‚[T]o overturn the juvenile court’s decision [to terminate 

parental rights], the result must be against the clear weight of the 

evidence or leave the appellate court with a firm and definite 

conviction that a mistake has been made.‛ In re B.R., 2007 UT 82, 

¶ 12, 171 P.3d 435 (citation and internal quotation marks 

omitted). We ‚review the juvenile court’s factual findings based 

upon the clearly erroneous standard.‛ In re E.R., 2001 UT App 

66, ¶ 11, 21 P.3d 680. A finding of fact is clearly erroneous when

the court ‚fail[s] to consider all of the facts or considered all of 

the facts and its decision was nonetheless against the clear 

weight of the evidence.‛ In re B.R., 2007 UT 82, ¶ 12. Therefore, 

‚[w]hen a foundation for the court’s decision exists in the 

evidence, an appellate court may not engage in a reweighing of 

the evidence.‛ Id.

¶3 The juvenile court concluded that several grounds 

supported termination of Father’s parental rights. Under Utah 

Code section 78A-6-507, the finding of a single enumerated 

ground will support termination of parental rights. Utah Code 

Ann. § 78A-6-507 (LexisNexis 2012). The juvenile court 

concluded that Father was an unfit or incompetent parent. See id.

§ 78A-6-507(1)(c). The court further concluded that the children 

had been in an out-of-home placement under the supervision of 

the juvenile court and the Division of Child and Family Services 

(DCFS), see id. § 78A-6-507(1)(d)(i); that Father had ‚substantially 

neglected, willfully refused, or has been unable or unwilling to 

remedy the circumstances that caused the children to be in an 

out-of-home placement, see id. § 78A-6-507(1)(d)(ii); and that 

‚there is a substantial likelihood that [Father] will not be capable 

of exercising proper and effective parental care in the near 

future,‛ see id. § 78A-6-507(1)(d)(iii). The court also concluded

that Father abandoned his children, see id. § 78A-6-507(1)(a), and 

also failed to communicate with his children for more than six 

months and to show the normal interest of a natural parent, 

without just cause, see id. § 78A-6-508(1). The juvenile court also 

concluded that Father had made only token efforts to support or 

communicate with the children, to prevent neglect of the 
In re M.D.

20150955-CA 3 2016 UT App 3

children, to eliminate the risk of serious harm to the children, or 

to avoid being an unfit parent. See id. § 78A-6-507(1)(f). The court 

further concluded, as required by statute, that it was in the best 

interests of the children to terminate Father’s parental rights. See 

id. § 78A-6-503(12) (LexisNexis Supp. 2015). 

¶4 Because these children were ‚Indian children‛ as defined 

by the Indian Child Welfare Act (ICWA), see 25 U.S.C.A. 

§ 1903(4) (West 2015), the juvenile court also found that the State 

had shown beyond a reasonable doubt that continued custody of 

the children by Father was likely to result in serious emotional or 

physical damage to the children.

3 The State gave appropriate 

notice to the Navajo tribe. The tribe did not intervene and did 

not ask to have the case removed to tribal court. 

¶5 Father challenges the sufficiency of the evidence to 

support any ground for termination of his parental rights and to 

support the juvenile court’s decision on the best interests of the 

children. However, Father concedes that he did not complete 

any services and did not participate in the case from May 2014, 

when he elected not to participate in services, until September 

28, 2015, which was the date of the trial. Father also concedes 

that he did not complete any services; he had no supervised 

visits with the children; and he was incarcerated at the time of 

 

3. Section 1912(f) of the ICWA requires,

No termination of parental rights may be ordered 

in such proceeding in the absence of a 

determination, supported by evidence beyond a 

reasonable doubt, including testimony of qualified 

expert witnesses, that the continued custody of the 

child by the parent or Indian custodian is likely to 

result in serious emotional or physical damage to 

the child.

25 U.S.C.A. § 1912(f) (West 2015).
In re M.D.

20150955-CA 4 2016 UT App 3

trial. Nevertheless, Father claims that the State failed to satisfy 

the ‚active efforts‛ requirement under ICWA, which states,

Any party seeking to effect a foster care placement 

of, or termination of parental rights to, an Indian 

child under State law shall satisfy the court that 

active efforts have been made to provide remedial 

services and rehabilitative programs designed to 

prevent the breakup of the Indian family and that 

these efforts have proved unsuccessful.

Id. § 1912(d). Father argues that if active efforts ‚would have 

occurred, he could have been successful in his case.‛ Father also 

challenges the conclusion that continued custody of the children 

by Father would be likely to result in serious emotional or 

physical damage to the children, claiming that the State must 

prove specific examples of the harm that would occur if the 

children were returned.

¶6 The children’s removal and placement in DCFS custody 

in October 2014 was a foster care placement that triggered the 

active efforts requirement. See In re C.D., 2008 UT App 477, ¶ 20, 

200 P.3d 194. Similarly, the State must satisfy the active efforts 

requirement in seeking to terminate Father’s parental rights. See

25 U.S.C.A. § 1912(d). ‚The ICWA requires active efforts to avoid 

the breakup of the Indian family or evidence that can support a 

finding that such efforts would be futile.‛ In re C.D., 2008 UT 

App 477, ¶ 27. Thus, ‚the State must demonstrate that active 

efforts have been made with respect to the specific parent . . . or 

provide evidence that such efforts would be futile.‛ Id. ¶ 30. 

Accordingly, we review the juvenile court’s finding that further 

efforts with Father would have been futile, ‚applying the 

heightened active efforts requirement.‛ Id. ¶ 35. ‚Although the 

state must make ‘active efforts’ under the ICWA, it need not 

persist with futile efforts.‛ See id. ¶ 36 (citation and internal 

quotation marks omitted).
In re M.D.

20150955-CA 5 2016 UT App 3

¶7 The juvenile court found that on May 7, 2014, Father 

‚voluntarily elected to not participate in services‛ and 

‚effectively opted out of reunification.‛ This occurred roughly 

five months before the children came into DCFS custody when 

the case was a protective supervision case and over a year before 

the State filed a termination petition. Father concedes that he did 

not participate in the case from May 2014 to September 2015. At 

the time of the termination trial, Father had not seen the children 

for a least a year. The juvenile court had ordered supervised 

visits for Father in May 2014; however, no supervised visits took 

place, although Father may have had unsupervised visits in 

violation of a no contact order. Father testified that he could not 

remember the last time he had seen the children. The juvenile 

court also found that DCFS had provided active efforts to the 

family to prevent removal and to reunify the children with their 

parents.4 The court further found, ‚[Father’s] whereabouts were 

unknown to [DCFS] and any efforts on the part of [DCFS] would 

have been futile.‛

¶8 Contrary to Father’s assertions, the testimony of the 

ICWA expert witness from the Navajo tribe does not undermine 

the juvenile court’s determination that further services directed 

to Father would be futile. The ICWA expert witness testified that 

she tried to contact Father toward the beginning of the case, but 

that his number was out of service. She also testified that Father 

was in need of services to address parenting, substance abuse, 

and domestic violence issues, and that he was not ready to take 

custody without those services. With regard to the active efforts 

requirement, the expert testified that she ‚would like to see a 

little more effort by‛ DCFS, but that Father ‚needed to stay in 

contact with‛ DCFS. The expert testified that she ‚would have 

 

4. The juvenile court continued reunification services to the 

mother after removal in October 2014, until July 2015, when the 

permanency goal changed to adoption. The mother relinquished 

her parental rights to the three children involved in this case.
In re M.D.

20150955-CA 6 2016 UT App 3

set home visits just to check on the father.‛ However, the expert 

acknowledged that there could have been no visits if DCFS had 

no contact information for Father. The expert expressed concern 

that in most of her cases, the states involved in those cases 

provided bus passes and that, in her experience, she knew of 

only two caseworkers who had gone to a parent’s home to 

provide transportation. She stated, ‚So I believe that more could 

have been done if the father’s whereabouts were known.‛ She 

believed that he should have been transported ‚if his 

whereabouts were known.‛ She further testified, 

I think overall any parent who would want to be 

with their children, they would do all that they can 

for their children. They would be visiting. They 

would be working their services. And in this case, 

my concern is he decided not to. . . . [H]e did admit 

to alcohol. Without the services, if he’s still using, 

that’s my concern.

Finally, the expert testified that the children would suffer serious 

physical or emotional damage if returned to their parents’ 

custody.

¶9 The ICWA expert witness’s testimony was consistently 

qualified by her statements that further efforts with Father 

would be possible only if he stayed in contact with DCFS so that 

his whereabouts were known. The expert’s testimony does not 

support Father’s assertion that the expert believed that the active 

efforts requirement was not satisfied nor did it undermine the 

juvenile court’s determination that further efforts would be 

futile. Father’s assertion that the evidence from the ICWA expert 

was insufficient because she was ‚unable to identify any specific 

serious emotional or physical harm which would occur to the 

children if they were returned to [Father’s] custody‛ is both 

unpersuasive and unsupported by meaningful analysis.
In re M.D.

20150955-CA 7 2016 UT App 3

¶10 Additional evidence in the record supports the juvenile 

court’s determination that further efforts directed to Father 

would be futile. The caseworker testified that during the 

protective supervision case, Father told her before a May 2014 

hearing that he did not want to continue his services. She had 

assisted Father in setting up evaluations, called agencies on his 

behalf, and set up appointments. However, Father then decided 

that he did not want to participate in those services. The 

caseworker talked to Father before he reached this decision and 

encouraged him to continue services. A second caseworker who 

assumed responsibility after removal of the children from the 

mother testified that Father contacted her in August 2014 a 

couple of times, but that he also called from a pay phone and left 

no contact information. She testified that if a parent fails to 

participate in services, there would still be some contact through 

supervised visits with the children that might provide an 

opportunity to motivate the parent to participate. Father did not 

attend any supervised visits. Although Father claimed that his 

caseworkers did not keep in contact with him, he admitted that 

they had no way to contact him. He also claimed that he could 

have been reached through his sister, but the original 

caseworker testified on rebuttal that when she asked his sister or 

the children’s mother about Father, they always said that they 

had not talked to him.

¶11 Father’s challenge to the best interests determination also 

lacks merit. The juvenile court found that the children had 

medical and mental health issues that require treatment, and the 

court detailed those requirements. Although the children were 

not in a prospective adoptive home, the testimony demonstrated 

that this was the result of the continuing efforts of DCFS and the 

Navajo tribe to place the children in an Indian home that could 

meet their specific physical and mental health needs, which 

included exploring a possible kinship placement in Arizona. 

Based upon Father’s testimony, the juvenile court found that he 

was not even aware of the physical or mental health needs of the 

children. Father had made ‚no effort to learn or educate[] 
In re M.D.

20150955-CA 8 2016 UT App 3

himself as to what services they do need.‛ Father did not have a 

relationship with the children and had not had any meaningful 

contact with them for at least a year. The best interest 

determination is amply supported by the evidence.

¶12 Father’s core challenge to the sufficiency of the evidence 

to support any ground for termination or the best interest 

determination is based upon his claim that he did not receive the 

active efforts required by the ICWA. Father’s related claims, 

which are based solely upon his own assertions that he is now 

sober and ‚ready to engage fully in his case,‛ and that the State 

therefore should be required to extend him further services in an 

effort to reunify him with the children, similarly lacks merit. 

Father does not otherwise challenge the sufficiency of the 

evidence to support any of the enumerated grounds for 

termination or the best interest determination. Because ‚a 

foundation for the court’s decision exists in the evidence,‛ we 

affirm. See In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435.