2022 UT App 124

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF D.R.,

A PERSON UNDER EIGHTEEN YEARS OF AGE.

L.L.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20210898-CA

Filed 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 

1. Senior Judge Kate Appleby sat by special assignment as 

authorized by law. See generally Utah R. Jud. Admin. 11-201(7).
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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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20210898-CA 3 2022 UT App 124

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 twoweek 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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20210898-CA 4 2022 UT App 124

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 nondisabled 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 

2. The parties and the juvenile court engaged in extensive analysis 

of whether DCFS and the court were obligated to provide Mother 

with ADA accommodations, based on their general awareness 

(continued...)
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20210898-CA 5 2022 UT App 124

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 that led to the 

child’s removal.” In re K.F., 2009 UT 4, ¶ 52, 201 P.3d 985. “Thus, 

appellate courts defer to juvenile courts on matters of credibility, 

and juvenile courts have broad discretion in determining whether 

reasonable reunification efforts were made. Accordingly, absent a 

demonstration that the determination was clearly in error, we will 

not disturb the determination.” Id. (quotation simplified).

¶10 Second, Mother argues that if we affirm the juvenile court’s 

ruling, then we must necessarily determine that her trial counsel 

was ineffective for failing to raise an adequate argument in 

support of her ADA claim. “An ineffective assistance of counsel 

claim raised for the first time on appeal presents a question of 

law,” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162, which we review 

for correctness.

that Mother suffered from a disability, prior to the time she filed 

her motion specifically invoking the ADA. However, Mother 

appears to have abandoned that argument on appeal. See generally 

In re B.A., 2017 UT App 202, ¶¶ 5–8, 407 P.3d 1053 (explaining that 

“vague claims of a disability” are insufficient to put DCFS and the 

juvenile court on notice that the ADA applies). Instead, she asserts 

that “once [she] invoked the ADA by way of her Motion under 

Rule 59(a) after the permanency hearing, DCFS and the juvenile 

court were charged with identifying any modifications to the 

reunification plan that might be reasonable.” Thus, on appeal, we 

consider only whether the ADA required the juvenile court to 

reinstate reunification services following Mother’s motion 

invoking the ADA, not whether the ADA precluded the juvenile 

court from terminating reunification services at the permanency 

hearing.
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20210898-CA 6 2022 UT App 124

ANALYSIS

I. The juvenile court did not exceed its discretion in rejecting 

Mother’s ADA argument.

¶11 The juvenile court rejected Mother’s ADA claim on the 

ground that she had not established she was a “qualified 

individual with a disability” under the ADA because she could 

not demonstrate that there was a reasonable accommodation that 

would allow her to successfully participate in reunification 

services. A qualified individual is “an individual with a disability 

who, with or without reasonable modifications to rules, policies, 

or practices, . . . meets the essential eligibility requirements for the 

receipt of services or the participation in programs or activities 

provided by a public entity.” 42 U.S.C. § 12131(2); see also In re 

K.C., 2015 UT 92, ¶ 22, 362 P.3d 1248.

¶12 The only accommodation Mother requested was 

“additional time to access the reunification services with her 

disabilities to afford her the same opportunities as any nondisabled individual.” We agree with the juvenile court that 

without any evidence that Mother had even begun to progress on 

the reunification plan, she could not show that she was capable of 

completing reunification services even with the additional time 

she requested. As the juvenile court explained, “[Mother] is 

asking for more time to begin to do all of the things that she has 

failed to start in more than four months. Her lack of engagement, 

and lack of parental interest in services, does not support a 

different outcome.” “There is no additional reasonable 

accommodation that could have been provided to [Mother] 

without her engagement in the services provided. [Mother’s] 

refusal to engage in any services balanced against [Child’s] best 

interests for permanency, make the request for additional time an 

unreasonable accommodation because it would create a hardship 

in providing permanency for [Child] when there is no indication 

it would net a different result.”
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20210898-CA 7 2022 UT App 124

¶13 Mother nevertheless suggests that there may have been 

other appropriate accommodations and that the juvenile court 

and DCFS had an “affirmative obligation” to “explore reasonable 

accommodations” and “identify[] any modifications to the 

reunification plan that might be reasonable.” Relying on In re K.C., 

2015 UT 92, 362 P.3d 1248, she suggests that she had no 

responsibility to request any specific modification and that it was 

the responsibility of DCFS and the juvenile court to 

independently research her condition and identify 

accommodations that might have helped her to participate in 

reunification services. We can see how some isolated language 

from In re K.C. might be interpreted this way, but reading the case 

as a whole, it is apparent to us that the supreme court did not 

intend the result advanced by Mother here. Although the court 

stated that “the juvenile court is charged . . . with identifying any 

modifications to the reunification plan that might be reasonable,” 

id. ¶ 27 (emphasis omitted), it also clearly expected the parent 

challenging a juvenile court’s rejection of an ADA claim to 

identify the “specific modification that [the parent] requested that 

was denied by the court,” id. ¶ 30. This court expressed a similar 

expectation in In re C.C., 2017 UT App 134, 402 P.3d 17, when it

approved the juvenile court’s rejection of an ADA defense where

the mother had not identified “any specific accommodation . . . 

that was denied or not provided by DCFS or by the Court.” Id.

¶ 31 (quotation simplified). Thus, we do not read In re K.C. as 

imposing an “affirmative obligation” on the juvenile court to 

make a parent’s ADA arguments for them by identifying potential 

reasonable accommodations that the parent did not request.

¶14 Moreover, we do not agree that the ADA can be reasonably 

read to impose such an obligation. Juvenile court judges do not 

have the medical background to understand and assess the effects 

of an illness or disability on a parent’s ability to complete 

reunification services without being presented with specific 

evidence. And even if they did, individual victims of an illness or 
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20210898-CA 8 2022 UT App 124

disability may experience such a variety of symptoms that a mere 

diagnosis does not provide a sufficient basis for assessing the 

accommodations an individual with that diagnosis might need. 

Thus, we agree with the State and the guardian ad litem that the 

burden must be on the individual requesting accommodation 

under the ADA to present the court with information regarding 

their disability, how it affects them, and the accommodations that 

would allow them to participate in reunification services.

¶15 For these reasons, the juvenile court did not err in denying 

Mother’s request to reinstate reunification services.

II. Mother has not demonstrated that she received ineffective 

assistance of counsel.

¶16 Mother next argues that if we “conclude that there was 

insufficient argument and evidence . . . to support [Mother’s] 

claim that DCFS and the juvenile court had failed to comply with 

the ADA, then we also have to conclude that trial counsel was 

ineffective.” To succeed on a claim of ineffective assistance of 

counsel, Mother must demonstrate both (1) that counsel’s 

performance was deficient and (2) that she suffered prejudice as a 

result of counsel’s deficient performance. See In re C.M.R., 2020 UT 

App 114, ¶ 19, 473 P.3d 184.

¶17 Mother claims that even though she did not appear at the 

termination trial, counsel should have called Mother’s father,

mother, and brother, as well as an expert witness, to testify about 

her disability. However, the record does not indicate what the 

testimony of any of these individuals would have been. Without 

knowing what additional evidence counsel could have presented 

regarding Mother’s disability, any allegation that counsel was 

ineffective is purely speculative.

¶18 Mother asks that we remand this case for an evidentiary 

hearing on her ineffective assistance of counsel claim. See generally
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20210898-CA 9 2022 UT App 124

In re S.H., 2007 UT App 8, ¶ 16, 155 P.3d 109 (determining that this 

court has the authority to remand an appeal from juvenile court 

to allow the juvenile court to make factual findings regarding an 

ineffective assistance of counsel claim). However, as such a 

remand is analogous to a remand under rule 23B of the Utah Rules 

of Appellate Procedure, see In re C.M.R., 2020 UT App 114, ¶ 37 

(Harris, J., concurring), it requires a “nonspeculative allegation of 

facts, not fully appearing in the record on appeal, which, if true, 

could support a determination that counsel was ineffective. And 

to support its contentions, the party must submit affidavits that 

demonstrate both the deficient performance by counsel and the 

resulting prejudice to the defendant,” State v. Griffin, 2015 UT 18, 

¶ 17, 441 P.3d 1166 (quotation simplified); cf. In re C.M.R., 2020 UT 

App 114, ¶ 31 (stating that the mother “attached extra-record 

evidence uncovered by [counsel] to her appellate brief” in support 

of her request for remand on her ineffective assistance claim); In 

re S.H., 2007 UT App 8, ¶ 15 (stating that the mother filed an 

affidavit detailing evidence to support her ineffective assistance 

claim). Mother has provided us with no affidavits or other extrarecord evidence indicating that her argument that counsel could 

have obtained better evidence in support of her ADA claim is 

anything but speculative. We therefore deny her request for 

remand.

¶19 Moreover, we are not convinced that additional evidence 

regarding Mother’s limitations would have altered the court’s 

denial of her request for accommodation. As explained, Mother 

was required to show that additional time or any other 

accommodation would enable her to complete the objectives of 

the reunification plan. See In re K.C., 2015 UT 92, ¶ 22, 362 P.3d 

1248. Given Mother’s unwillingness to participate in services

during the four months when reunification services were 

provided, it is unlikely Mother could show that she was capable 

of making meaningful progress, regardless of any 

accommodation she received. As our supreme court stated in In 
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20210898-CA 10 2022 UT App 124

re K.C., “We cannot fault the juvenile court for concluding that any 

further modifications would be unreasonable.” Id. ¶ 29.

CONCLUSION

¶20 We agree with the juvenile court that Mother was not a 

qualified individual under the ADA because she did not identify 

any reasonable accommodation that would have allowed her to 

successfully participate in reunification services. Moreover, the 

court did not have an affirmative obligation to explore potential 

ADA accommodations that Mother had not requested. Finally,

because there is no record evidence indicating that counsel failed 

to make arguments that would have allowed Mother to succeed 

on her ADA claim, she cannot establish that she received 

ineffective assistance of counsel. Accordingly, we affirm.