2018 UT App 44

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF K.W. AND A.W.,

PERSONS UNDER EIGHTEEN YEARS OF AGE.

A.W.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20170229-CA

Filed March 22, 2018

Third District Juvenile Court, Salt Lake Department

The Honorable Mark W. May

No. 1127816

Joshua Fawson, Attorney for Appellant

Sean D. Reyes, John M. Peterson, and Carol L.C. 

Verdoia, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in 

which JUDGES JILL M. POHLMAN and RYAN M. HARRIS concurred.

CHRISTIANSEN, Judge:

¶1 A.W. (Father) appeals the juvenile court’s order 

terminating his parental rights to his children, K.W. and A.W.

Father contends (1) that the Division of Child and Family 

Services (DCFS) failed to sufficiently modify the reunificationservices plan to accommodate his disabilities as required by the 

Americans with Disabilities Act (the ADA), (2) that the evidence 

was insufficient to support the juvenile court’s finding that 

termination of his parental rights was in the children’s best 

interests, and (3) that said termination was not “strictly 
In re K.W.

20170229-CA 2 2018 UT App 44

necessary,” as required by Utah Code section 78A-6-507. We 

conclude that Father’s ADA claim fails because Father has not 

carried his burden of demonstrating clear error in the juvenile 

court’s finding that DCFS provided him reasonable 

accommodations. We further conclude that Father has not 

shown that the juvenile court’s best-interests finding was clearly 

erroneous. And we conclude that Father’s argument regarding 

the necessity of termination is inadequately briefed. We 

therefore affirm the juvenile court’s order.

BACKGROUND

¶2 Father suffered, and continues to suffer from, from 

bipolar disorder with psychotic tendencies, memory loss from 

injuries sustained in a car accident,1 and cognitive impairments 

from brain surgery to treat a colloidal cyst. Father also had seven 

drug-related convictions stretching across four states from 1989 

to 2012. At the time his parental rights were terminated in March 

2017, Father had recently used both marijuana and 

methamphetamine and was homeless.

¶3 In March 2016, Father contacted law enforcement officers 

seeking transport to a shelter for himself and his two children, 

K.W. and A.W. After arriving at the shelter, Father was taken to 

another facility to receive psychiatric treatment. DCFS was 

initially unable to locate Father, and the children were placed in 

the State’s custody. In April 2016, the court ordered DCFS to 

provide Father with reunification services, noting that Father 

“desires help from DCFS and is willing to participate in 

services.” In May 2016, the court held a disposition hearing. 

Although it appears from the record that the court and DCFS 

were aware that Father suffered from disabilities, Father did not 

reference the ADA at the hearing or ask for specific 

accommodations other than for help with transportation. The 

 

1. The mother of the children died in this accident.
In re K.W.

20170229-CA 3 2018 UT App 44

reunification-services plan required Father to undergo a mental 

health evaluation, comply with the resulting treatment 

recommendations, undergo drug testing, and meet with 

Assessment and Referral Services (ARS). The court also ordered 

modifications to the plan to accommodate Father’s needs, 

including offering Father transportation for any assessments.

¶4 Father did not attend the initial child and family team 

meeting. And when he did eventually meet his DCFS 

caseworker to discuss the resulting service plan, it was a 

“difficult conversation” because he was “so upset just with the 

fact that the [children] were removed in the first place.” After 

seeing a police car nearby, Father became worried that he would 

be arrested. Father also became “very emotional concerning the 

removal of his children” and “could not carry on a 

conversation.”

¶5 The caseworker arranged to pick Father up to take him to 

a mental health facility for an evaluation. But when they arrived, 

the facility was unable to see Father that day and instead 

scheduled a future appointment. The caseworker also scheduled

an appointment for Father at ARS for a drug and alcohol 

assessment. However, Father did not appear at or reschedule

either of these appointments.

¶6 Father’s contact with DCFS was limited throughout the 

reunification period. Father was homeless but was often at or 

near a certain park. When Father had not contacted the 

caseworker for a while, she would go to the park and look for 

him to discuss his case. On four or five occasions, the caseworker 

was able to find Father there and meet with him. But when she 

tried to speak with him about treatment services, he would 

become emotional, angry, or paranoid.

¶7 In Father’s view, he had not done anything wrong and 

there was therefore no reason for him to use the services; 

accordingly, Father refused to participate in them. As a result, 

Father did not receive the mental health or drug and alcohol 
In re K.W.

20170229-CA 4 2018 UT App 44

treatment from DCFS required by the service plan. And despite 

the caseworker’s urging, Father refused to visit his previous 

treatment provider. Father also refused to submit to random 

drug testing. Eventually, Father stopped cooperating with DCFS 

at all.

¶8 At first, the caseworker arranged for Father to meet with

the children at DCFS’s office on a weekly basis. Father would get 

rides to the office from friends or a relative. According to the 

caseworker, Father would get angry at those visits, claiming that 

the children had been kidnapped, and he would attempt to find 

out from the children where they were living. Father was not 

consistent in attending these scheduled visits.

¶9 The caseworker then sought to accommodate Father’s 

needs by organizing visits with the children at the park where 

Father was living. At first, the visits were consistent. But later, 

Father would often become angry and suggested that he would 

go to the children’s school to take them away. After one visit at 

the park during which Father was “unhappy and yelling,” the 

caseworker determined that it was no longer safe to have visits 

there and decided that future visits would be at the DCFS office. 

However, Father did not attend any more visits or contact DCFS 

thereafter.

¶10 Transportation was a recurring problem for Father

throughout the reunification period. Although the caseworker 

had initially driven him to appointments, Father’s repeated use 

of “aggressive and angry tones” caused the caseworker’s 

supervisor to advise her not to transport Father for safety 

reasons. The caseworker then got bus passes for Father, but he 

refused to use them, claiming that he was unable to bring his 

bicycle and cart on the bus.2

 

2. In its final order, the court noted that Father “is homeless and 

all of his possessions are contained in a cart that he pulls with his 

(continued...)
In re K.W.

20170229-CA 5 2018 UT App 44

¶11 Housing was also an issue for Father. Father refused to go 

to a homeless shelter despite his caseworker’s encouragement.

According to the caseworker, Father did not want to go to a 

shelter due to his anxiety about large groups of people. Father 

knew that suitable housing was necessary for him to regain 

custody of his children but did not take any action toward that 

end.

¶12 There were also significant communication barriers

between DCFS and Father. For example, Father had no 

consistent phone number that DCFS could use to contact him. 

Between January 2017 and the beginning of March 2017, Father 

used five different phone numbers. And when Father would call 

DCFS, he would usually refuse to answer questions about his 

progress in obtaining housing and employment. Instead, he 

would fixate on what he perceived as DCFS kidnapping his

children.

¶13 The juvenile court eventually changed the goal for the 

children from reunification to adoption. At the termination-ofparental-rights trial, Father appeared and testified. His 

testimony is discussed below, to the extent that it is relevant to 

his claims on appeal. After trial, the court ruled that the services 

had been unsuccessful at addressing the reasons the children 

had been placed in an out-of-home placement. The court found 

that several grounds for termination of Father’s parental rights 

had been proven by clear and convincing evidence and

consequently terminated Father’s parental rights. Father appeals.

 

(...continued)

bicycle.” It is unclear what Father had previously done with the 

bicycle and cart on those occasions that the caseworker drove 

him to his appointments.
In re K.W.

20170229-CA 6 2018 UT App 44

STANDARD OF REVIEW

¶14 “Whether a parent’s rights should be terminated presents 

a mixed question of law and fact.” In re B.R., 2007 UT 82, ¶ 12, 

171 P.3d 435. “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 B.A., 2017 UT App 202, 

¶ 2, 407 P.3d 1053.

ANALYSIS

I. Americans with Disabilities Act

¶15 Utah law requires DCFS to make reasonable efforts to 

provide court-ordered reunification services to a parent before 

the court may terminate that parent’s rights to his or her child.

Utah Code Ann. § 78A-6-507(3) (LexisNexis 2012). The ADA 

applies to the provision of such services and requires that 

“reasonable modifications” be made to a reunification-services

plan to accommodate a parent who has a qualifying disability.

See In re K.C., 2015 UT 92, ¶¶ 1, 23, 362 P.3d 1248. “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.” In re K.F., 2009 UT 4, ¶ 52, 

201 P.3d 985 (quotation simplified).3

 

3. The court’s internal style guide has adopted the parenthetical 

“quotation simplified” in the spirit of the nascent “cleaned up” 

parenthetical. See, e.g., State v. Cady, 2018 UT App 8, ¶ 9 n.2.
In re K.W.

20170229-CA 7 2018 UT App 44

¶16 Here, the ADA was not explicitly mentioned until 

Father’s closing argument at the termination trial. However, it 

appears that Father’s disabilities were known to the parties and 

the juvenile court—in promulgating the service plan, the 

juvenile court ordered that certain “modifications to the Service 

Plan” be made “to accommodate [Father],” including that DCFS 

offer transportation to any assessments and that all requirements 

be reflected in writing.

¶17 On appeal, Father contends that DCFS “failed to make 

reasonable modifications to services as mandated under [the 

ADA].” In its order terminating Father’s parental rights, the 

juvenile court determined that DCFS had “made reasonable 

efforts to provide services to [Father].” Therefore, Father now 

bears the burden of proving that this determination was clearly 

erroneous. See In re K.F., 2009 UT 4, ¶¶ 44, 52. He identifies 

several areas in which he believes DCFS failed to make 

reasonable modifications or efforts, including transportation and 

communication.

¶18 Father concedes that DCFS made some efforts to provide 

reunification services to him. On appeal, he identifies additional 

things that DCFS could have done to help better support his 

efforts to comply with the court-ordered service plan. But Father 

does not provide any authority regarding the line between 

reasonable and unreasonable efforts; i.e., what level of support 

and services DCFS is required to extend to a disabled parent 

pursuant to the ADA to aid the parent–child reunification 

efforts. Cf. In re P.H., 783 P.2d 565, 572 (Utah Ct. App. 1989)

(“[R]ehabilitation is a two-way street which requires 

commitment on the part of the parents, as well as the availability 

of services from the State.” (citation and internal quotation 

marks omitted)). The fact that DCFS could have made further 

efforts to help Father resolve the issues that required removal of 

his children does not necessarily mean that the efforts that were

made were unreasonable. Moreover, Father’s contention is 

undermined by his lack of cooperation with DCFS and his 
In re K.W.

20170229-CA 8 2018 UT App 44

failure to notify the court or DCFS that he intended to access the 

services but needed additional modifications to do so.

¶19 At the disposition hearing held on May 10, 2016, Father’s 

counsel agreed to a service plan that had several modifications 

to accommodate Father’s needs. But Father failed to take 

advantage of those services and now claims that these

modifications, made to assist him in light of his disabilities, were 

insufficient. During the time that the service plan was in effect, 

Father never informed the court that he was unable to access the 

provided services and never asked the court to make additional 

modifications to enable him to do so. Instead, DCFS and the 

court were left to guess whether Father’s failure to participate in 

the services was due to an inability to do so or an unwillingness 

to do so.

¶20 There was certainly good reason for DCFS to believe the 

latter. The juvenile court noted that, throughout the case, Father 

did not believe he had done anything wrong and had therefore 

refused to discuss or participate in the mental-health and 

substance-abuse treatment programs that were required by the 

service plan. The court also noted that Father’s contact with 

DCFS was limited. And when DCFS was able to communicate 

with Father, he would become aggressive, emotional, angry, 

and/or paranoid. Father did not want to talk about the services 

he was supposed to engage in; instead, he focused on the 

removal of the children, his kidnapping claims, and his efforts to 

discover where they lived and went to school. It appears that, as 

a result, DCFS was never made aware of Father’s claim that the 

reason for his non-participation in the services was the 

inadequacy of the modifications to accommodate his disabilities.

¶21 For example, with regard to transportation, Father 

complains that “no transportation was offered” for his 

rescheduled mental-health assessment and substance-abuse 

evaluation. But in actuality, transportation was offered; Father 
In re K.W.

20170229-CA 9 2018 UT App 44

was given bus passes for this purpose.4 Father next asserts that 

he was unable to use the bus system due to his confusion and 

because the bus drivers would not allow him to take his 

possessions aboard the buses.5 But Father does not demonstrate 

that he ever informed DCFS of his bus-related struggles or that 

he asked for modifications to the service plan to address those 

struggles.

¶22 Similarly, Father argues that “DCFS never referred Father 

to the relevant agencies to receive help to get a phone,” which 

caused communication obstacles. But Father does not assert that 

 

4. Father claims that it is disputed whether he was given bus 

passes until much later in the case, highlighting his own 

testimony. But the court heard testimony from the caseworker 

and from Father and nevertheless found that he had been given 

bus passes. Father does not explain why that finding was clearly 

erroneous, and we therefore accept it as true.

5. As noted above, Father apparently transported all of his 

possessions using a bicycle and cart. He claims that the bus 

drivers would not allow him to take his bicycle and cart on the 

buses, and therefore that the bus system was not a viable option 

for him. Even assuming that the ADA’s “reasonable

modifications” requirement extends beyond the triggering 

disability to attenuated or unrelated obstacles, such as

homelessness, Father’s argument in this regard is unavailing.

First, Father concedes that he was initially given rides by the 

caseworker and that he rode the bus to attend the termination 

trial. And the court found that Father was occasionally given 

rides by his friends and relatives. There is no record of what 

Father did with his bicycle and cart on those occasions, and 

therefore no indication that the solution, whatever it was, would 

not have worked when Father tried to use the bus system. 

Second, there is no evidence in the record that Father informed 

DCFS or the court of the bicycle-and-cart problem, much less 

that he asked for assistance or an accommodation on that basis.
In re K.W.

20170229-CA 10 2018 UT App 44

he ever asked for such help. And Father concedes that he was 

able to communicate with DCFS on some occasions, using five 

different phone numbers during the time the service plan was in 

effect. While it is true that the caseworker testified that the 

biggest obstacle in the case was that it was “hard to get ahold of 

[Father],” she was also clear that she was able to do so, at least 

sometimes. In her view, much of the obstacle was that it was 

“hard to help him understand anything that was going on with 

the case.” She noted, “Some days, he would just refuse to talk to 

me; some days, he would refuse to do anything because he 

would say he didn’t do anything wrong; [and] [s]ome days, he 

would consider it, but there was no follow-through.” In other 

words, although DCFS did not assist Father in getting a phone, 

Father never asked for such assistance and Father was still able 

to make and receive phone calls.

¶23 The service plan contained several modifications to 

accommodate Father’s disabilities, and DCFS made significant 

efforts to assist Father in completing the requirements of the

plan. Father has not demonstrated clear error in the juvenile 

court’s finding that the efforts made by DCFS were reasonable. 

Father cannot carry his burden of persuasion on appeal by 

simply noting that the efforts made were ultimately unsuccessful 

and identifying additional steps DCFS could have taken, 

especially when the record reflects that Father was generally 

uncooperative and failed to inform DCFS of further 

modifications he needed to successfully complete the service 

plan.

II. Best Interests

¶24 Father also contends that “[t]he evidence was insufficient 

to support the court’s finding that it was in the children’s best 

interest that Father’s parental rights be terminated.” Specifically, 

Father argues that the children should have been placed in a

“family-supported parenting plan” as an “appropriate

accommodation” under the ADA. He notes that his brother and 

his brother’s wife (Uncle and Aunt) had cared for the children 
In re K.W.

20170229-CA 11 2018 UT App 44

and suggests that DCFS should have considered some sort of 

plan that allowed him, with the help of Uncle and Aunt, to retain 

his parental rights.

¶25 Father highlights the successes the children had achieved 

while being cared for by Uncle and Aunt. But he does not outline 

the exact contours of a proposed family-supported parenting 

plan. For example, Father does not explain where the children 

would live, since Uncle and Aunt have now moved to Oregon

while Father remains in Utah. Similarly, while Father 

acknowledges that placement with Uncle and Aunt would 

violate a DCFS policy,6 his response is only to assert—without 

citation to authority—that the ADA requires DCFS to modify its 

policies in this circumstance.

¶26 In any event, Father did not present a proposed 

family-supported parenting plan at any time before the 

termination trial. This failure undermines his position insofar as 

it relies on the ADA. See In re K.C., 2015 UT 92, ¶¶ 20, 27, 362 

P.3d 1248 (explaining that there is no bright-line bar to raising an 

ADA claim for the first time at a termination trial but noting that 

“[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” 

given that a child’s interest in permanency and stability favors 

“[t]he expeditious resolution of a termination proceeding”). And 

Father did not present such a plan at the termination trial.

¶27 Father also suggests that termination is not in the 

children’s best interests because “[t]erminating Father’s parental 

rights [will] terminate contact between the children and Father, 

severing what has been a very important relationship in the 

 

6. DCFS has a policy preventing placement of a child with 

individuals who have been convicted of manslaughter or certain 

other crimes. Uncle’s criminal record shows a manslaughter 

conviction from approximately thirty years ago.
In re K.W.

20170229-CA 12 2018 UT App 44

children’s lives.” But the foster parents, who wanted to adopt 

the children, testified that they would facilitate visits between 

Father and the children: “We’re not trying to exclude 

anybody . . . . [W]e understand they have family, even besides 

their dad [and] we’re not ever going to try to take that away 

from them . . . [a]s long as it’s good for them and it’s what they 

want.”

¶28 Given the grounds for termination presented to the court 

and the evidence presented that Father was unable to rectify the 

circumstances that led to his children originally being removed 

from his custody, Father has not demonstrated that the juvenile 

court’s finding that termination of his parental rights was in the 

children’s best interests was clearly erroneous.

III. “Strictly Necessary”

¶29 Father’s final contention, limited to four sentences, is that 

terminating his parental rights was not “strictly necessary.” See 

Utah Code Ann. § 78A-6-507(1) (LexisNexis 2012). He asserts 

that the juvenile court’s finding that terminating his parental 

rights was strictly necessary was erroneous because Uncle and 

Aunt could have been granted permanent custody and 

guardianship of the children.

¶30 This argument is inadequately briefed and therefore fails 

to carry Father’s burden of persuasion. As noted above, DCFS’s 

policy precluded placement with Uncle, and Father has not 

established that the ADA required modification of that policy. 

Moreover, the juvenile court expressed concern that Uncle and 

Aunt, if granted guardianship, would not allow the children to 

continue living with the foster parents.7 Father’s brief contention 

in this regard does not address either of these concerns.

 

7. We note the children’s expressed desires to continue living 

with the foster parents and be adopted by them, but we ascribe 

no legal significance to those desires on appeal.
In re K.W.

20170229-CA 13 2018 UT App 44

Consequently, Father has not carried his burden of persuasion to 

show error in the court’s conclusion that termination was strictly 

necessary.

¶31 While we are sympathetic to Father’s plight, we are 

unable to see any abuse of discretion in the juvenile’s court’s 

decision to terminate Father’s parental rights. Because Father 

was not able to remedy the problems that led to K.W.’s and 

A.W.’s removal from his custody and did not demonstrate that 

the services offered to him were insufficient, the juvenile court 

appropriately focused on finding permanency and stability for 

these two young children.

¶32 Affirmed.