In re A.J.

2017 UT App 235
THE UTAH COURT OF APPEALS
S TATE OF U TAH , IN THE INTEREST OF A.J. AND A.J.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
B.J.,
Appellant,
v.
S TATE OF U TAH ,
Appellee.
Opinion
No. 20160134-CA
Filed December 29, 2017
Fourth District Juvenile Court, American Fork Department
The Honorable Suchada P. Bazzelle
No. 1101463
Janell R. Bryan, Attorney for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
JUDGE M ICHELE M. C HRISTIANSEN authored this Opinion, in
which JUDGES GREGORY K. O RME and DAVID N. M ORTENSEN
concurred.
CHRISTIANSEN, Judge:
¶1 	B.J. (Father) appeals the juvenile court’s order terminating
his parental rights to A.J. (Older Child) and A.J. (Younger Child).
We affirm.

In re A.J.
20160134-CA 	2 	2017 UT App 235
BACKGROUND
¶2 	Father and J.E. (Mother) are the natural parents of Older
Child and Younger Child. In June 2014, the Division of Child
and Family Services (DCFS) filed a petition for custody after
Older Child told a teacher at her school that during a May 2014
argument, Father and Mother had physically pulled her arms
and legs in different directions, causing Older Child to “slam[]”
her face on the ground. After a shelter hearing, the children were
removed from the parents’ custody and placed into DCFS’s
custody.
¶3 	In July 2014, the juvenile court ordered DCFS to conduct a
risk assessment on Father. The risk assessment revealed “serious
concerns” that Father had a substance abuse problem. Based on
the risk assessment, DCFS recommended that Father submit to
random drug tests, reduce his medication dosages, participate in
substance abuse treatment, participate in psychological testing
and follow any recommendations therefrom, attend a parenting
program, 	and 	undergo 	a 	domestic 	violence 	assessment.
Although the juvenile court did not order services for Father at
that 	time, 	DCFS 	arranged 	for 	random 	drug 	testing 	and
assessments so that Father could start addressing the identified
concerns before adjudication. Father did not participate in any
services until they were later ordered.
¶4 	In 	February 	2015, 	the 	juvenile 	court 	held 	a 	pretrial
hearing on the State’s amended verified petition to adjudicate
the children as neglected. Father entered a plea under rule 34(e)
of the Utah Rules of Juvenile Procedure, by which he stipulated
to several allegations in the State’s amended verified petition
and 	“neither 	admitted 	nor 	denied” 	other 	allegations. 	The
juvenile court therefore deemed the allegations in the petition to
be true.1 Among other things, the court found the following
1. 	Pursuant 	to 	rule 	34(e), 	“[a] 	respondent 	may 	answer 	by
admitting or denying the specific allegations of the petition, or
(continued…)

In re A.J.
20160134-CA 	3 	2017 UT App 235
allegations to be true: (1) Older Child had been injured as a
result of the May 2014 incident between Father and Mother;
(2) Father “[has] a substance abuse problem and such problem
interfere[s] with [his] ability to parent [the] children”; (3) Father
and Mother “have a history of domestic violence”; and (4) “the
children have been present during fights between the parents
and are impacted by the exposure to domestic violence.” The
juvenile court adjudicated the children as neglected by Father.
¶5 	The juvenile court also approved a service plan, which
required Father to (1) participate in a mental health evaluation,
“specifically 	[a] 	psychological 	evaluation”; 	(2) 	submit 	to 	a
substance abuse assessment; (3) participate in random urinalysis
tests; (4) “[s]ign any required releases of information for all
medical, 	psychological, 	domestic 	violence, 	and/or 	substance
abuse 	treatment 	providers 	[and] 	provide 	copies 	to 	DCFS”;
(5) participate in a domestic violence assessment; (6) visit with
the 	children 	on 	a 	regular 	basis; 	(7) 	“[m]aintain 	stable 	and
appropriate 	housing”; 	(8) 	maintain 	employment; 	and
(9) participate in a parenting program. The court also directed
DCFS to conduct pill counts of Father’s medications, and Father
acknowledges this included the requirement to take his pills as
prescribed.
¶6 	In March 2015, the juvenile court found that Father had
made “[l]ittle progress” with his service plan and scheduled a
permanency hearing for June 15. At the permanency hearing, the
juvenile 	court 	determined 	that 	both 	parents 	had 	“failed 	to
participate in, comply with, in whole or part, or to meet the goals
of 	[the] 	court 	approved 	treatment 	plan” 	and 	changed 	the
permanency plan for the children to adoption. Regarding Father
(…continued)
by declining to admit or deny the allegations. Allegations not
specifically denied by a respondent shall be deemed true.” Utah
R. Juv. P. 34(e).

In re A.J.
20160134-CA 	4 	2017 UT App 235
specifically, 	the 	court 	observed 	that 	Father 	had 	attended 	a
substance 	abuse 	assessment 	and 	was 	attending 	the
recommended therapy. Father had attended thirty drug tests,
but he had also missed forty drug tests. In addition, “DCFS had
been conducting pill counts and many of [Father’s] prescriptions
were off count, indicating he was not using his medications as
prescribed.” The court observed that Father had completed a
psychological 	evaluation 	but 	had 	not 	followed 	the
recommendations from that evaluation. Father also had not
completed 	a 	domestic 	violence 	assessment 	or 	parenting
program. Father’s attendance at visits with the children had
improved, but he had still missed three out of twelve scheduled
visits.
¶7 	The 	State 	filed 	a 	petition 	to 	terminate 	the 	parents’
parental rights on July 1, 2015. In the petition, the State asserted
that it had been provided with a copy of an independent medical
evaluation (the Medical Evaluation) conducted on Father in
November 2013. The Medical Evaluation was prepared by Dr.
Mattingly in response to Father’s complaints of ongoing injuries
from a September 2011 work accident. Although Father’s doctor
had cleared him to go back to work later that year, Father did
not return to work, asserting that he had migraines from the
work 	accident. 	According 	to 	the 	State, 	Dr. 	Mattingly 	had
concluded in her evaluation that Father’s work injuries had been
minor and had stabilized, that Father’s complaints of headaches
had not been substantiated by any objective findings, and that
Father had “opioid dependence and abuse/opioid dependence.”
The Medical Evaluation also included Father’s medical records
from September 2011, the time of Father’s work accident, to
November 2013.
¶8 	Father filed a motion in limine seeking to suppress both
Dr. Mattingly’s testimony and the Medical Evaluation. Father
observed that the Medical Evaluation included “many pages of
[his] Medical Records” and asserted that the Medical Evaluation
was 	“protected 	by 	the 	confidentiality 	owed 	him 	by 	his

In re A.J.
20160134-CA 	5 	2017 UT App 235
physicians and treatment providers.” In its response, the State
argued that Father’s physical and emotional health were at issue
and that there was “no violation of confidentiality rules.” The
State 	further 	asserted 	that 	Mother 	had 	given 	the 	Medical
Evaluation to DCFS.2 According to the State, Father “had left
[the Medical Evaluation] in the couples’ home and allowed
[Mother] to have the document”; therefore, Father had waived
any privilege to the information in the Medical Evaluation.
¶9 	The juvenile court did not rule on the admissibility of the
Medical Evaluation until the first day of the termination trial in
November 	2015.3 The 	court 	initially 	declined 	to 	admit 	the
Medical Evaluation but allowed Dr. Mattingly to testify. The
court noted that it would strike Dr. Mattingly’s testimony if
Father did not assert a medical defense justifying “his substance
use.” Father later presented testimony from one of his doctors,
Dr. Dana, that he had prescribed buprenorphine, commonly
known as Suboxone or Subutex, based on Father’s frequent
headaches 	and 	migraines.4 	Accordingly, 	the 	juvenile 	court
observed that “a medical defense [was] being launched.” The
court 	then 	determined 	that 	Dr. 	Mattingly’s 	testimony 	had
2. Mother testified that she found the Medical Evaluation in a
storage unit she shared with Father and gave the Medical
Evaluation to DCFS.
3. Mother voluntarily relinquished her parental rights on the last
day of the termination trial. She is not a party to this appeal.
4. Buprenorphine is a schedule III controlled substance intended
for 	the 	treatment 	of 	pain 	(Buprenex) 	and 	opioid 	addiction
(Suboxone and Subutex). Drug & Chemical Evaluation Section,
Office of Diversion Control, Drug Enforcement Administration,
Buprenorphine (July 2013), https://www.deadiversion.usdoj.gov/
drug_chem_info/buprenorphine.pdf 	[https://perma.cc/K3XS-
NQ8R].

In re A.J.
20160134-CA 	6 	2017 UT App 235
authenticated the Medical Evaluation, and the court admitted
the Medical Evaluation in its entirety into evidence.
¶10 	In its written order terminating Father’s parental rights,
the juvenile court acknowledged that the Medical Evaluation
“was 	performed 	at 	the 	request 	of 	an 	insurance 	company
opposing [Father’s] worker’s compensation benefits.” Thus, the
court determined, “the analysis and conclusions of [the Medical
Evaluation] were likely to be biased,” and the court “gave them
no weight in reaching its decision.” However, the court observed
that the Medical Evaluation also contained “a compilation of
[Father’s] medical history that was a recitation of treatment notes
from other treatment providers.” The court found that “this
section of the evaluation was sufficiently objective to be reliable
and useful in understanding the context and history of the
medical treatment [Father] received for his work injury.” The
court stated that it “did rely on Dr. Mattingly’s compilation of
[Father’s] medical records” to assess Father’s medical defense
“that 	he 	was 	using 	prescription 	medications 	for 	medical
reasons.” In its written findings, the juvenile court referred to the
medical history from the Medical Evaluation numerous times
and concluded that Father “is a drug addict.”
¶11 	The juvenile court terminated Father’s parental rights
based on five different grounds. The court found that (1) Father
had neglected the children “by exposing them to incidents of
domestic violence, by not attending to the children’s needs, by
not providing them a safe and stable home environment, and by
exposing 	them 	to 	drug 	use”; 	(2) 	Father 	was 	an 	unfit 	or
incompetent 	parent 	based 	on 	his 	“serious 	substance 	abuse
problem”; 	(3) 	the 	children 	had 	been 	in 	an 	out-of-home
placement, and Father “has substantially neglected, or has been
unable or unwilling to remedy the circumstances that cause[d]
the children to be in an out-of-home placement, and there is a
substantial 	likelihood 	that 	[Father] 	will 	not 	be 	capable 	of
exercising proper and effective parental care in the near future”;
(4) Father had failed to make a parental adjustment “in that [he]

In re A.J.
20160134-CA 	7 	2017 UT App 235
was not able to achieve the goals of the DCFS service plan and
demonstrate he could be a responsible parent”; and (5) Father
had made “insufficient efforts . . . to support the children, to
prevent further neglect of them, to eliminate the risk of serious
harm to the children, and to avoid being an unfit parent.” The
juvenile court also found that it was “strictly necessary” and in
the best interests of the children to terminate Father’s parental
rights.
¶12 	Father now appeals the juvenile court’s order terminating
his parental rights.
ISSUES AND STANDARDS OF REVIEW
¶13 	Father raises four issues on appeal. First, he contends that
“[t]he Medical Evaluation was unfairly prejudicial and required
complete 	exclusion.” 	Second, 	in 	a 	related 	argument, 	Father
contends that “[t]he Medical Evaluation was a private document
and reliance on any portion thereof cannot justify termination of
parental rights.” “A trial court has broad discretion to admit or
exclude evidence and its determination typically will only be
disturbed if it constitutes an abuse of discretion.” In re L.N., 2004
UT App 120, ¶ 9, 91 P.3d 836 (citation and internal quotation
marks omitted). “The existence of a privilege [or an exception
thereto] is a question of law, which we review for correctness.”
State v. Worthen, 2008 UT App 23, ¶ 9, 177 P.3d 664 (alteration in
original) (citation and internal quotation marks omitted), aff’d,
2009 UT 79, 222 P.3d 1144.
¶14 	Third, 	Father 	contends 	that 	without 	the 	Medical
Evaluation, 	“[t]he 	remaining 	evidence 	was 	insufficient 	to
support termination” of his parental rights. 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

In re A.J.
20160134-CA 	8 	2017 UT App 235
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. “When a foundation for the
court’s decision exists in the evidence, an appellate court may
not engage in a reweighing of the evidence.” In re B.R., 2007 UT
82, ¶ 12, 171 P.3d 435.
¶15 	Fourth, 	Father 	contends 	that 	DCFS 	failed 	to 	make
reasonable 	efforts 	to 	provide 	reunification 	services.
“[D]etermining whether or not DCFS has provided reasonable
services to parents requires trial judges to observe facts[] . . .
relevant to the application of the law that cannot be adequately
reflected in the record available to appellate courts.” In re A.C.,
2004 UT App 255, ¶ 12, 97 P.3d 706 (second alteration and
omission in original) (citation and internal quotation marks
omitted). Accordingly, the juvenile court has broad discretion in
determining 	whether 	DCFS 	made 	reasonable 	efforts 	at
reunification. Id.
ANALYSIS
I. Any Error in Admitting the Medical Evaluation Was Harmless.
¶16 	Father’s 	first 	two 	contentions 	involve 	the 	Medical
Evaluation. First, he contends that “[t]he Medical Evaluation was
unfairly prejudicial and required complete exclusion” under
Utah Rule of Evidence 403. Second, he contends that “[t]he
Medical Evaluation was a private document and reliance on any
portion thereof cannot justify termination of parental rights.”
More specifically, he asserts that the Medical Evaluation was
privileged under Utah Rule of Evidence 506.
¶17 	Rule 403 provides:
The court may exclude relevant evidence if its
probative value is substantially outweighed by a

In re A.J.
20160134-CA 	9 	2017 UT App 235
danger of one or more of the following: unfair
prejudice, 	confusing 	the 	issues, 	misleading 	the
jury, 	undue 	delay, 	wasting 	time, 	or 	needlessly
presenting cumulative evidence.
Utah R. Evid. 403. Rule 506 provides that “[a] patient has a
privilege, during the patient’s life, to refuse to disclose and to
prevent any other person from disclosing information that is
communicated in confidence to a physician or mental health
therapist for the purpose of diagnosing or treating the patient.”
Id. R. 506(b). But the privilege is not absolute. State v. Worthen,
2008 UT App 23, ¶ 10, 177 P.3d 664, aff’d, 2009 UT 79, 222 P.3d
1144. 	Rule 	506 	contains 	certain 	exceptions 	to 	the 	patient
privilege, 	including 	the 	directive 	that 	“[n]o 	privilege
exists . . . [f]or 	communications 	relevant 	to 	an 	issue 	of 	the
physical, mental, or emotional condition of the patient . . . in any
proceeding in which that condition is an element of any claim or
defense.” Utah R. Evid. 506(d)(1)(A).
¶18 	We need not address Father’s evidentiary arguments at
great 	length 	because, 	even 	if 	the 	juvenile 	court 	erred 	by
admitting the Medical Evaluation, any error in admitting such
evidence was harmless. See State v. Hamilton, 827 P.2d 232, 240
(Utah 1992) (“We do not determine whether the evidence was
admitted improperly, because we conclude that any error in its
admission was harmless.”). “Harmless error ‘is an error that is
sufficiently inconsequential that there is no reasonable likelihood
that it affected the outcome of the proceedings.’” In re A.R., 2017
UT App 153, ¶ 12, 402 P.3d 206 (quoting H.U.F. v. W.P.W., 2009
UT 10, ¶ 44, 203 P.3d 943).
¶19 	Here, the juvenile court initially declined to admit the
Medical Evaluation, but the court allowed Dr. Mattingly to
testify on the condition that “at the conclusion of the trial[,] if
any kind of medical defense has not been launched by [Father],
it’s possible that this testimony is not relevant and I could then
strike that testimony.” Later in the trial, Dr. Dana testified that
when Father came into his clinic, he was having frequent, severe

In re A.J.
20160134-CA 	10 	2017 UT App 235
headaches that “seemed to have characteristics of migraine.” Dr.
Dana testified that based on Father’s frequent headaches and
migraines, 	he 	prescribed 	buprenorphine. 	Observing 	that 	“a
medical 	defense 	is 	being 	launched,” 	the 	juvenile 	court
determined that Dr. Mattingly’s testimony had authenticated the
Medical 	Evaluation, 	and 	the 	court 	admitted 	the 	Medical
Evaluation into evidence.
¶20 	In its written order terminating Father’s parental rights,
the juvenile court determined that “the analysis and conclusions
of [the Medical Evaluation] were likely to be biased,” and the
court “gave them no weight in reaching its decision.” However,
the court observed that the Medical Evaluation also contained “a
compilation of [Father’s] medical history that was a recitation of
treatment notes from other treatment providers.” The court
“found 	that 	this 	section 	of 	the 	evaluation 	was 	sufficiently
objective to be reliable and useful in understanding the context
and history of the medical treatment [Father] received for his
work 	injury.” 	The 	court 	stated 	that 	it 	“did 	rely 	on 	Dr.
Mattingly’s compilation of [Father’s] medical records” to assess
Father’s 	medical 	defense 	“that 	he 	was 	using 	prescription
medications for medical reasons.”
¶21 	On appeal, Father does not dispute that he launched a
medical defense at trial. See Utah R. Evid. 506(d)(1)(A). Indeed,
he acknowledges that his “defense at trial was that he suffered
from migraines, which justified his prescription medication.”
Father asserts that “the Medical Evaluation had the undue
tendency to improperly suggest [he] was a drug addict, which
was unfairly prejudicial,” and that his use of a medical defense
“did not entitle the State to access all of [his] past medical
records 	to 	rebut 	such 	defense 	in 	favor 	of 	termination.”
According to Father, the juvenile court erred when it “found his
entire medical history as discoverable and admissible based on
his defense of one medical complaint for headaches.”
¶22 	Our supreme court has acknowledged that “[r]ule 506 is
only 	broad 	enough 	to 	allow 	the 	disclosure 	of 	information

In re A.J.
20160134-CA 	11 	2017 UT App 235
relevant to an element of any claim or defense.” Sorensen v.
Barbuto, 2008 UT 8, ¶ 10, 177 P.3d 614. “Therefore, rule 506(d)(1)
is a limited waiver of privilege, confined to court proceedings,
and restricted to the treatment related to the condition at issue.”
Id. “[A] waiver under rule 506(d)(1) does not mean that the
patient has consented to the disclosure of his entire medical
history.” Id.
¶23 	Assuming, for the sake of argument, that the Medical
Evaluation 	contained 	privileged 	information,5 	the 	fact 	that
Father asserted a medical defense did not automatically entitle
the juvenile court to rely on Father’s comprehensive medical
history in terminating his parental rights. Cf. id. After reviewing
the record, it does appear that the juvenile court failed to
properly assess the admissibility of the Medical Evaluation and
to limit its consideration of the evaluation “to the treatment
related 	to 	the 	condition 	at 	issue.” 	See 	id. 	Nevertheless, 	we
conclude that any error in the juvenile court’s admission of, and
reliance on, the Medical Evaluation was harmless. See In re A.R.,
2017 UT App 153, ¶ 12. As explained in Part II of this opinion,
there was sufficient independent evidence demonstrating that
Father had a substance abuse issue and sufficient evidence to
5. Father asserts, without citation to the record, that “[t]he
parties agree the Medical Evaluation is privileged and meets the
definitions of [Utah Rule of Evidence] 506(b).” This assertion
appears to be incorrect, as the State asserts that “[n]either Dr.
Mattingly’s 	testimony 	nor 	the 	[Medical 	Evaluation] 	were
privileged because of the nature of Father’s encounter with Dr.
Mattingly,” i.e., Father had no physician-patient relationship
with Dr. Mattingly, because Dr. Mattingly “did not examine
Father or prepare [the Medical Evaluation] for treatment; it was
conducted for the sole purpose of determining his fitness to
return to work.” The State further asserts that “even if privilege
exists,” Father waived the privilege when he launched a medical
defense at trial.

In re A.J.
20160134-CA 	12 	2017 UT App 235
support 	the 	juvenile 	court’s 	ultimate 	decision 	to 	terminate
Father’s parental rights.6
II. Sufficient Evidence Supports the Juvenile Court’s Termination
of Father’s Parental Rights.
¶24 	Father contends that “if the Medical Evaluation and Dr.
Mattingly’s 	testimony 	[had] 	been 	properly 	excluded,” 	the
remaining evidence was insufficient “to support the juvenile
court’s findings and conclusion that the children are neglected as
to Father.” The State, on the other hand, contends that “[e]ven
assuming admitting Dr. Mattingly’s testimony and the [Medical
Evaluation] was error, it was necessarily harmless because other
sufficient evidence existed to terminate Father’s parental rights.”
We agree with the State.
¶25 	“Utah law requires a court to make two distinct findings
before terminating a parent-child relationship.” In re R.A.J., 1999
UT App 329, ¶ 7, 991 P.2d 1118. “First, the court must find that
the parent is below some minimum threshold of fitness, such as
finding that a parent is unfit or incompetent based on any of the
grounds for termination under section [78A-6-507] of the Utah
Code.” Id. (citation and internal quotation marks omitted); see
also Utah Code Ann. § 78A-6-507(1) (LexisNexis 2012) (listing the
grounds for termination of parental rights). Pursuant to section
78A-6-507(1), the finding of a single enumerated ground is
sufficient to warrant the termination of parental rights. See Utah
6. Father also asserts that the State “had no right to the Medical
Evaluation provided . . . by Mother” because it is a private
medical 	record 	under 	the 	Government 	Records 	Access 	and
Management 	Act 	and 	that 	the 	State 	violated 	the 	Health
Insurance Portability and Accountability Act “by disclosing the
Medical 	Evaluation 	without 	Father’s 	consent.” 	Given 	our
determination that there was sufficient evidence to terminate
Father’s parental rights without the Medical Evaluation, we need
not address these issues.

In re A.J.
20160134-CA 	13 	2017 UT App 235
Code Ann. § 78A-6-507(1). “Second, the court must find that the
best interests and welfare of the child are served by terminating
the parents’ parental rights.” In re R.A.J., 1999 UT App 329, ¶ 7;
see also Utah Code Ann. § 78A-6-506(3) (LexisNexis 2012). “A
petitioner has the burden of establishing both of these elements
by clear and convincing evidence.” In re R.A.J., 1999 UT App 329,
¶ 7; see also Utah Code Ann. § 78A-6-506(3). Father does not
challenge the juvenile court’s determination that termination of
his parental rights was in the children’s best interests, and we
therefore 	address 	only 	the 	parental 	fitness 	element 	of 	the
statutory test.7
¶26 	The juvenile court terminated Father’s parental rights on
five different grounds: (1) Father had neglected the children “by
exposing 	them 	to 	incidents 	of 	domestic 	violence, 	by 	not
attending to the children’s needs, by not providing them a safe
and stable home environment, and by exposing them to drug
use”; (2) Father was an unfit or incompetent parent based on his
“serious substance abuse problem”; (3) the children had been in
an 	out-of-home 	placement, 	and 	Father 	“has 	substantially
neglected, 	or 	has 	been 	unable 	or 	unwilling 	to 	remedy 	the
circumstances that cause[d] the children to be in an out-of-home
placement, and there is a substantial likelihood that [Father] will
not be capable of exercising proper and effective parental care in
the near future”; (4) Father had failed to make a parental
adjustment “in that [he] was not able to achieve the goals of the
DCFS service plan and demonstrate he could be a responsible
parent”; and (5) Father had made “insufficient efforts . . . to
support the children, to prevent further neglect of them, to
eliminate the risk of serious harm to the children, and to avoid
being an unfit parent.” See Utah Code Ann. § 78A-6-507(1)(b)–(f).
7. In his reply brief, Father generally asserts that if grounds for
termination are present, “best interests can then be considered.”
But Father provides no analysis regarding the children’s best
interests in this case.

In re A.J.
20160134-CA 	14 	2017 UT App 235
So long as sufficient evidence existed to support at least one of
the grounds found by the court, the termination of Father’s
parental rights was appropriate.
¶27 	On appeal, Father focuses his arguments on the juvenile
court’s determination that he had neglected the children “by
exposing them to drug use” and was an unfit parent based on
his “serious substance abuse problem.” See Utah Code Ann.
§ 78A-6-507(1)(b), (1)(c). As previously discussed, Father asserts
that if the Medical 	Evaluation had not been admitted into
evidence, “the remaining evidence would have been insufficient
to terminate [his parental] rights.”
¶28 	Utah 	Code 	section 	78A-6-507 	provides, 	among 	other
things, that a court may terminate a parent’s parental rights if
the court finds that “the parent has neglected or abused the
child” or that “the parent is unfit or incompetent.” Id. Section
78A-6-508 provides, in relevant part, that “[i]n determining
whether a parent or parents are unfit or have neglected a child
the court shall consider, but is not limited to, the following
circumstances, 	conduct, 	or 	conditions: 	. 	. 	. 	(c) 	habitual 	or
excessive use of intoxicating liquors, controlled substances, or
dangerous drugs that render the parent unable to care for the
child.” Id. § 78A-6-508(2)(c) (LexisNexis 2012). We conclude that,
even 	after 	setting 	aside 	the 	Medical 	Evaluation, 	sufficient
independent 	evidence 	exists to 	support 	the 	juvenile 	court’s
conclusion that Father had a substance abuse problem and had
exposed the children to drug use.
¶29 	To begin with, in his rule 34(e) plea, Father admitted that
he had a “substance abuse problem” and that it interfered with
his ability to parent the children. Nevertheless, when confronted
by this admission at trial, Father denied having a substance
abuse problem.
¶30 	Mother’s trial testimony also indicated that Father had a
substance abuse problem. Mother testified that after his work
accident, Father “pretended to have headaches and different

In re A.J.
20160134-CA 	15 	2017 UT App 235
things to get pain medication.” Mother stated, “[W]e’d go to the
doctors and on the way there [Father would] be rubbing his
eyes, . . . or doing certain things to get prepared to go to the
doctor before we got there.” Mother explained, “[W]e were
going for the pain pills, that’s what we were doing it for.”
Mother stated that when Father got pain medication, they would
“split 	the 	bottle.” She 	stated 	they 	“smoked 	[instant 	release
oxycodone] and we would sniff them, we’d swallow them.”
Mother explained:
[I]t took about a year and a half to actually get that
high dosage of the medication. But before then we
were just . . . sniffing the [L]ortab or the low dose
of the [Percocet] that [Father] got at first. [H]e did a
whole bunch of different treatments to get what we
wanted. 	Once 	we 	got 	what 	we 	wanted, 	that’s
where we stayed with it every time we went to the
doctor.
According to Mother, Older Child sometimes went to the doctor
with them, and Father “would just start acting . . . sad . . . so
[Older Child] would be like putting her arms around him like,
it’s okay[,] but it’s just putting on a show for the doctor to be
looking at him like, he’s really hurt.”
¶31 	Mother further testified that when the family lived in a
different house, she and Father used drugs in their bedroom or
in a shed behind the house. The parents would leave Older
Child to watch Younger Child when they did this. Older Child
told DCFS that Mother and Father would “do nothing but sit in
the shed” and that when Mother and Father were in the shed,
she and Younger Child “couldn’t spend . . . time with them.”
According to a DCFS caseworker, in her first visits with the
children, Older Child understood that the children had been
removed from their parents’ custody, in part, because their
parents had been doing drugs in the shed.

In re A.J.
20160134-CA 	16 	2017 UT App 235
¶32 	As part of his service plan, Father was required to submit
to random urinalysis tests. The DCFS caseworker testified that
Father “did fairly well in the beginning” and only “missed a few
here 	and 	there.” 	However, 	between 	August 	27, 	2015, 	and
October 6, 2015, Father missed six urinalysis tests. He also tested
positive for Xanax in October 2015. Father did not have a
prescription 	for 	Xanax. 	Rather, 	at 	that 	time, 	Father 	had
prescriptions only for Ambien and Suboxone, so the DCFS
caseworker presumed he had gotten the Xanax illegally. This
occurred approximately one month before the beginning of the
termination 	trial. 	Father 	acknowledged 	at trial 	that 	he 	had
missed some tests, but he claimed it was due to his work.
¶33 	The juvenile court had also ordered DCFS to conduct pill
counts of Father’s prescription medications. The court noted that
“[a]t times the counts were off and at other times [Father] forgot
to bring the pill[s]. The counts were not reliable because of the
inconsistencies 	and 	[Father’s] 	non-compliance.” 	The 	DCFS
caseworker 	testified 	that 	Father’s 	pill 	counts 	were 	often
unsuccessful 	because 	Father 	would 	forget 	to 	bring 	his
medications, 	and 	he 	once 	brought 	three pills 	in 	his wallet
without the prescription bottle, “so [she] couldn’t double check
when the prescription was filled.” At the very first pill count,
Father did not bring his Ambien with him, claiming that “he was
told by the pharmacist that the Ambien would interact with the
Suboxone 	and 	would 	kill 	him.” 	Ultimately, 	Father 	“never
brought his Ambien” to the pill counts, but when the DCFS
caseworker 	called 	Father’s 	doctor, 	“Ambien 	was 	still 	being
prescribed to [Father].” The DCFS caseworker also testified that
Father 	had 	told 	her 	that 	he 	was 	trying 	to 	get 	off 	of 	his
prescription medications. The caseworker had requested several
times that Father sit down with his current doctor and “come up
with an actual written plan to [wean him] off of the Suboxone if
that’s 	what 	he 	was 	planning 	on 	doing,” 	but 	Father 	never
submitted a plan.

In re A.J.
20160134-CA 	17 	2017 UT App 235
¶34 	Based on the foregoing, we conclude that there was
sufficient evidence apart from the Medical Evaluation from
which the juvenile court could conclude that Father was unfit
due to his failure to address his substance abuse problem.8 Thus,
8. We note that Father does not directly address the juvenile
court’s grounds for termination under Utah Code section 78A-6-
507(1)(d) 	and 	(1)(f). 	See 	Utah 	Code 	Ann. 	§ 	78A-6-507(1)(d)
(LexisNexis 2012) (failure to “remedy the circumstances that
cause the child to be in an out-of-home placement” and “there is
a substantial likelihood that the parent will not be capable of
exercising proper and effective parental care in the near future”);
id. § 78A-6-507(1)(f) (failure of parental adjustment). We could
affirm on this failure alone. See, e.g., In re B.C., 2016 UT App 208,
¶ 6, 385 P.3d 705 (per curiam) (“Because Mother does not
challenge the grounds of neglect, unfitness, or token efforts, this
court 	need 	not 	review 	her 	claim 	that 	the 	evidence 	was
insufficient to support the grounds of abandonment.”); In re
N.M., 2007 UT App 16U, para. 2 (per curiam) (observing, where
the juvenile court terminated the mother’s parental rights on
multiple grounds and the mother challenged only one ground
on appeal, that the mother had implicitly conceded that there
was adequate evidentiary support for the juvenile court’s other
grounds for termination).
Further, Father does not address the issue of domestic
violence. Instead, he cursorily asserts that domestic violence was
“not the focus at trial.” Where a party fails to marshal the
evidence in support of a challenged finding, the party “will
almost certainly fail to carry its burden of persuasion on appeal.”
State v. Nielsen, 2014 UT 10, ¶ 42, 326 P.3d 645. Father has not
marshaled the evidence supporting the juvenile court’s finding
of domestic violence, nor has he demonstrated that the evidence
clearly 	preponderates 	against 	the 	findings 	made 	regarding
domestic violence or that the juvenile court otherwise abused its
discretion. 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.

In re A.J.
20160134-CA 	18 	2017 UT App 235
the evidence supports the juvenile court’s decision to terminate
Father’s parental rights on the basis of unfitness.
III. DCFS Made Reasonable Efforts to Reunite Father with
the Children.
¶35 	Lastly, 	Father 	contends 	that 	DCFS 	failed 	to 	make
reasonable efforts to provide reunification services.
¶36 	Pursuant to Utah Code section 78A-6-507, “in any case in
which 	the 	court 	has 	directed 	the 	division 	to 	provide
reunification services to a parent, the court must find that the
division made reasonable efforts to provide those services before
the court may terminate the parent’s rights under Subsection
(1)(b), (c), (d), (e), (f), or (h).” Utah Code Ann. § 78A-6-507(3)(a)
(LexisNexis 2012). “DCFS [complies] with its statutory obligation
to make reasonable efforts toward reunification if it makes a fair
and serious attempt to reunify a parent with a child prior to
seeking to terminate parental rights.” In re A.C., 2004 UT App
255, ¶ 14, 97 P.3d 706.
¶37 	The juvenile court determined that “[r]easonable efforts
were made by DCFS to facilitate treatment for [Father].” The
court observed:
Although the Petition was not adjudicated as to
[Father] until February 2015, DCFS immediately set
him up with services in July 2014, so as not to
delay [Father] receiving necessary treatment. He
was set up with random drug testing, he was
provided 	referrals 	for 	assessments 	and 	given
information for parenting programs. If there was
delay 	in 	treatment, 	the 	delay 	was 	caused 	by
[Father]. DCFS could not have done anything more
to assist [Father] in addressing identified concerns
in being a parent.

In re A.J.
20160134-CA 	19 	2017 UT App 235
The court also noted that Father did not participate in any
services until they were ordered by the court.
¶38 	Although Father’s argument is framed as such, Father
does not truly argue that DCFS failed to provide him with the
proper level of assistance in obtaining the required services.
Instead, the thrust of Father’s argument is that, despite his
alleged substantial compliance with the service plan, DCFS still
sought termination of his parental rights. However, Father’s
argument mischaracterizes the factual record, because Father did
not substantially comply with the terms of his service plan.
¶39 	Father’s service plan required him to (1) participate in a
mental 	health 	evaluation, 	“specifically 	[a] 	psychological
evaluation”; 	(2) 	submit 	to 	a 	substance 	abuse 	assessment;
(3) participate in random urinalysis tests; (4) “[s]ign any required
releases of information for all medical, psychological, domestic
violence, 	and/or 	substance 	abuse 	treatment 	providers 	[and]
provide copies to DCFS”; (5) participate in a domestic violence
assessment; 	(6) 	visit 	with 	the 	children 	on 	a 	regular 	basis;
(7) “[m]aintain stable and appropriate housing”; (8) maintain
employment; and (9) participate in a parenting program. The
juvenile court also directed DCFS to conduct pill counts of
Father’s medications. Father acknowledges this included the
requirement to take his pills as prescribed.
¶40 	The juvenile court found that Father “did work on some
objectives 	in 	the 	service 	plan” 	but 	that 	he 	“only 	partially
complied with the plan by working on a few of the objectives.”
For example, Father failed to complete or make substantial
progress on the domestic violence objective in his service plan.
Indeed, before the start of the termination trial, Father had
completed only two of the recommended twenty weeks of
domestic violence treatment. Consequently, the juvenile court
observed that “[t]he domestic violence objective contained in the
service plan has not been addressed by [Father]” and that Father
was still in need of domestic violence treatment.

In re A.J.
20160134-CA 	20 	2017 UT App 235
¶41 	Regarding 	the 	urinalysis 	testing 	requirement, 	Father
missed six tests between August 27, 2015, and October 6, 2015.
He also tested positive for Xanax in October 2015, a controlled
substance for which he did not have a prescription. Father also
made it difficult for DCFS to conduct pill counts by failing to
bring his medications with him and by bringing three pills in his
wallet 	without 	the 	prescription 	bottle, 	“so 	[the 	DCFS
caseworker] couldn’t double check when the prescription was
filled.” The juvenile court determined that “[t]he counts were not
reliable 	because 	of 	the 	inconsistencies 	and 	[Father’s] 	non-
compliance.”
¶42 	Additionally, Father’s compliance with the service plan’s
requirement 	that 	he 	“maintain 	safe, 	stable 	and 	appropriate
housing” 	was 	questionable 	at 	best. 	Although 	Father 	had
housing, he was sharing an apartment with another man who
was receiving housing assistance for the unit. Father’s name was
not on the lease. Instead, Father was “allowed to live at the
apartment at the will of the roommate.” The juvenile court noted
that 	“[t]here 	could 	be 	a 	possible 	violation 	of 	the 	housing
assistance agreement because the housing authority was not
informed [that Father] was living in the unit and there was no
check of eligibility with [Father’s] income.” Thus, the juvenile
court 	determined, 	“[t]here 	is 	concern 	about 	the 	stability 	of
[Father’s] housing.”
¶43 	Based 	on 	the 	foregoing, 	Father’s 	assertion 	that 	he
substantially complied with the service plan lacks merit.9 As
9. Although Father does not specifically address the juvenile
court’s determination regarding failure of parental adjustment,
supra ¶ 34 note 8, we note that Father’s failure to substantially
comply with his service plan is evidence of his failure of parental
adjustment. See In re J.T., 2012 UT App 253, ¶ 3, 286 P.3d 960 (per
curiam); see also Utah Code Ann. §§ 78A-6-507(1)(e), -508(5)
(LexisNexis 2012).

In re A.J.
20160134-CA 	21 	2017 UT App 235
such, Father cannot demonstrate that DCFS’s decision to seek
termination is evidence of its failure to offer reasonable services
when he failed to fully avail himself of the services DCFS did
offer.
¶44 	Father also briefly asserts that “DCFS had given up by the
time 	of 	adjudication.” 	However, 	the 	record 	speaks 	to 	the
contrary. 	At 	trial, 	Father 	acknowledged 	that 	the 	DCFS
caseworker encouraged him to begin services before they were
ordered by the juvenile court, but he chose not to begin services
because he was “upset.” Father testified, “I didn’t know how any
of this was happening or how it was right because . . . I’m a great
father.”
¶45 	The 	DCFS 	caseworker 	testified 	that 	after 	the 	State’s
petition was adjudicated in February 2015, she gave Father the
information he needed to obtain his substance abuse assessment;
Father did not complete the assessment until the end of March.
She also stated that Father did not complete his psychological
evaluation until the end of May and that he had canceled several
appointments. The DCFS caseworker testified that she reminded
Father that those assessments needed to be done, “especially
since it wasn’t just the assessment, he would have to follow
whatever recommendations were [made] in that assessment.”
She testified that Father often acted like “he was hearing [what
she told him] for the first time” and that she “wasn’t sure if he
was being manipulative necessarily or if he really truly didn’t
understand.” The DCFS caseworker sent Father reminders via
text message and in person; she tried “to use all different kinds
of communication to make sure he understood everything.” She
also testified that she had ordered cognitive evaluations to
determine if Father was capable of understanding what was
required of him and that the test results indicated that Father
“should be able to do these things.”
¶46 	In sum, we conclude that Father did not substantially
comply with the service plan and that the juvenile court acted
within 	its 	discretion 	when 	it 	found 	that 	DCFS 	had 	made

In re A.J.
20160134-CA 	22 	2017 UT App 235
reasonable efforts to reunify Father with the children prior to
terminating his parental rights. The record demonstrates that
DCFS made reasonable efforts both before and after the State’s
petition was adjudicated to facilitate treatment for Father.
CONCLUSION
¶47 	We affirm the juvenile court’s order terminating Father’s
parental rights.