2022 UT App 98
THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF G.B. AND A.C.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
T.R.B.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20210396-CA
Filed August 4, 2022
Fifth District Juvenile Court, Cedar City Department
The Honorable Troy A. Little
No. 1195807
Colleen K. Coebergh, Attorney for Appellant
Sean D. Reyes, Carol L. C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGE MICHELE M. CHRISTIANSEN FORSTER and JUSTICE DIANA
HAGEN concurred. 1
1. Justice Diana Hagen began her work on this case as a member
of the Utah Court of Appeals. She became a member of the Utah
Supreme Court thereafter and completed her work on the case
sitting by special assignment as authorized by law. See generally
Utah R. Jud. Admin. 3-108(4).
In re G.B.
TENNEY, Judge:
¶1 The Division of Child and Family Services (DCFS)
removed G.B. and his maternal half-brother, A.C., from their
home in connection with their mother’s arrest on drug-related
charges and reports of domestic violence at the home. The
juvenile court later adjudicated the two children as “abused and
neglected,” and as part of this determination, it made a subsidiary
finding that G.B.’s father, T.R.B. (Father), “has issues related to the
use of illegal substances.” Based on this finding, the court ordered
Father to complete a substance abuse evaluation and submit to
random drug testing.
¶2 Father now challenges the juvenile court’s abuse
determination as well as its disposition order. For the reasons set
forth below, we affirm.
BACKGROUND
Petition for Protective Custody
¶3 In February 2021, two-year-old G.B. and six-year-old A.C.
were living with Father and their biological mother (Mother).
Father is G.B.’s biological father, but he’s not A.C.’s. That month,
DCFS filed a verified petition seeking protective custody of the
children on the basis that they were “abused, neglected, or
dependent.” The petition set forth several sets of facts in support
of the “abuse, neglect, or dependency” allegations.
¶4 First, the petition alleged that Mother and Father “had
recently engaged in Domestic Violence” and that the children had
been “exposed” to that domestic violence. It alleged that when
police responded to a recent domestic disturbance at the home,
Mother told officers that Father had “pushed [her] into the tub
[and] rammed her head into the wall, before throwing her into the
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wall.” It also noted that A.C. reported that Mother and Father “say
mean words to each other,” that A.C. “has had to go upstairs so
that he would not have to hear the fighting,” and that Father
“broke his door when upset on one occasion.”
¶5 Second, the petition alleged that DCFS had recently
received “information” indicating that Father “had hit a child on
the back hard enough to leave bruising.”
¶6 Third, the petition made a number of allegations about the
living conditions at the family home. Of note, it alleged that the
home was “observed to have broken pieces of glass outside” and
“a nail . . . in close proximity to the children’s toys.” It also alleged
that the “children were observed between February 8, 2021 and
February 12, 2021 to be dirty, [with] hair so messy that knots had
to be cut out” and “feet which were black.”
¶7 Finally (and most significantly for purposes of this appeal),
the petition included several allegations about illegal drug use by
both Mother and Father.
¶8 With respect to Mother, the petition asserted that she had
recently been arrested for driving while intoxicated and that the
arresting officer had discovered illegal drugs and drug
paraphernalia in her backpack. The petition also detailed other
instances in which illegal drugs or drug paraphernalia had been
found near Mother, including an instance in which drugs and
paraphernalia were found in a place that “would have been
accessible by the children.”
¶9 The petition further alleged that Father “has issues related
to the use of illegal substances.” According to the petition,
“Mother has stated that she uses heroin with [Father] daily and
that he uses approximately a gram a day.” The petition also
alleged that when police responded to the domestic disturbance
described above, Mother told them “that she and [Father] got into
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an argument after she discovered [Father] and another individual
getting ready to use substances.” According to the petition,
responding officers had searched a “camp trailer” on the property
and found “several pipes, tinfoil with heroin residue, a burned
spoon, and syringes.” 2
¶10 The petition did note, however, that Father “denied any
use of illegal substances or that he was aware the Mother used
illegal substances.” And it further noted that Father had “claimed
[that] any paraphernalia” found in the trailer “belonged [to his
friend].” But the petition also alleged that about two months after
the paraphernalia was found in the trailer, Father refused to let a
DCFS caseworker inside that trailer and declined to take a drug
test. And it alleged that Father then “admitted” to the caseworker
that he and Mother smoked cigarettes in the trailer where the
drug paraphernalia was found.
Pretrial Proceedings and Adjudication Hearing
¶11 The juvenile court held a shelter hearing after the petition
was filed. At the close of the hearing, the court approved the
removal of the children and placed them in DCFS’s temporary
custody.
¶12 On March 23, 2021, the court held a pretrial hearing. At that
hearing, Mother responded to the allegations in the petition
pursuant to rule 34(e) of the Utah Rules of Juvenile Procedure,
meaning that while she neither admitted nor denied the
2. There is some disagreement in the record about who owned the
property on which the camp trailer was located. At the
adjudication hearing, a police officer suggested that the property
belonged to Father’s mother. But Father testified that the property
belonged to him. Regardless, it is undisputed that when the police
discovered the drug paraphernalia, Father, Mother, and the
children were living on the property.
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allegations, she agreed that the court would treat the allegations
as true. See Utah R. Juv. P. 34(e) (“A respondent may answer by
admitting or denying the specific allegations of the petition, or by
declining to admit or deny the allegations. Allegations not
specifically denied by a respondent shall be deemed true.”).
Father continued to deny the allegations pertaining to his
substance abuse, however, so the court scheduled an adjudication
hearing to address the allegations against him. The court also
found the children to be neglected and abused by Mother and
ordered DCFS to develop a child and family service plan for the
family and each child, to set a primary permanency goal of
reunification, and to provide reunification services to Mother.
That plan required Mother to, among other things, “participate
and engage in a parenting program to increase parenting
knowledge and behavior.” See Utah Code Ann. § 62A-4a-205(8)(d)
(LexisNexis Supp. 2021) (“[C]hild and family plans shall address
problems that . . . keep a child in placement . . . .”).
¶13 At his adjudication hearing, Father entered a rule 34(e) plea
of his own regarding most of the allegations in the petition, but he
still denied the allegation that he “has issues related to the use of
illegal substances.” The hearing was accordingly limited to
determining whether Father had “issues related to the use of
illegal substances.” As a further point of specificity, Father did not
dispute that drug paraphernalia was “found on the property”;
instead, Father only disputed that the paraphernalia “pertain[ed]
to him.”
¶14 The State presented three witnesses: an officer (Officer)
who was present when police found the drug paraphernalia in the
camp trailer, Mother, and the DCFS investigator (Investigator)
assigned to the case.
¶15 Officer testified that when he responded to the domestic
disturbance, Mother told him that she and Father started fighting
because Father “was out with his girlfriend in the camp trailer
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using drugs.” According to Officer, Mother told him she “had
seen [Father] using out [in the trailer] many times.” Officer also
testified that another officer found drug paraphernalia in the
trailer that day, including “several used syringes,” “used tinfoil
with burn marks on it consistent with smoking illegal
substances,” “a pipe or two,” and “a spoon with burnt residue in
it.” Officer further testified that he spoke with Father on the phone
a week later and that Father admitted during that conversation
that his friend “used drugs . . . out in the trailer.” Finally, Officer
testified that Father offered to “submit to a drug test” but that
Officer never actually had him complete one.
¶16 In her testimony, Mother confirmed that she had told
police that Father “had been using illegal substances in the trailer
on the property.” She also confirmed that she had reported that
Father “was using one gram of heroin daily.” But Mother also
claimed that she had only “made an assumption that he was using
heroin” because she “had picked it up for him” and that she “had
never actually seen him doing it.” Mother also testified that she
and Father “smoke[d] cigarettes” in the trailer. On cross-examination, Mother stated that she was “satisfied that [Father]
was not using drugs” after seeing the results of a drug test that he
had taken for work in March 2021.
¶17 Finally, Investigator testified that he spoke with Father in
February 2021 and that Father’s “pupils were very pinpoint” at
that time. Investigator said that when he asked Father about
Mother’s drug use, Father “claimed that he didn’t know anything
that was going on with her.” Investigator further testified that
when he asked to see the trailer where police had found drug
paraphernalia, Father “den[ied him] access.” Investigator said
that Father also initially “claimed it wasn’t his trailer . . . and that
just no one goes in it.” But when Investigator pressed, Father
“admitted that he goes inside to smoke cigarettes.” Investigator
said that he asked Father to take a drug test but that Father
“declined.” Finally, Investigator testified that he spoke with
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Mother in February 2021 and that Mother told him that she and
Father “had used together, that she was using more than him,
specifically heroin, but that they were using together daily.”
¶18 After the State rested, Father testified. He claimed that he
had not “used any illegal substances” “in the last five years” and
that he takes “random drug tests and at least one drug test a year”
for his work as a truck driver. Father also claimed that he had
passed drug tests administered by DCFS somewhere between 18
and 24 months earlier.
¶19 When asked about the trailer, Father said that it belonged
to his friend and that he was “just allowing her to put her trailer
on [his] property.” Father testified that he was “aware [his friend]
ha[d] used illegal substances in the past,” but he denied that the
drug paraphernalia was his. On cross-examination, Father
admitted that he sometimes used the trailer “as a storage unit.”
He also admitted that during the winter of 2020, he went into it to
smoke cigarettes.
Adjudication Ruling
¶20 After closing arguments, the court found “by clear and
convincing evidence” that:
• “On or about December 28, 2020, Law Enforcement
discovered drug paraphernalia including several pipes,
tinfoil with heroin residue, a burned spoon, and syringes
in a camper on the property where the family lived.”
• “On or about February 5, 2021, [DCFS] contacted [Father].
[Father] refused to allow the caseworker to see inside the
trailer but admitted that they (the Mother and [Father]) do
smoke (cigarettes) inside of it. [Father] was asked to drug
test for [DCFS], and he has declined to do so.”
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• “Mother has stated that she uses heroin with [Father] daily
and that he uses approximately a gram a day.”
• Mother testified “that she gets heroin for [Father], and she
gives it to him.”
• “Father has denied any drug use or any knowledge of drug
use by the Mother.”
¶21 Drawing on these findings, the court found by “clear and
convincing evidence” that Father “has issues related to the use of
illegal substances.” Elaborating on this, the court referenced the
fact that there was “paraphernalia and some residue found in a
location where both [Mother] and [Father] say they’ve been and
they frequent often,” meaning the trailer. And referring again to
Father’s admitted habit of smoking cigarettes in that trailer, the
court opined that Father was just “way too close” to illegal drugs
and that this was “concerning to the Court.”
¶22 The court accordingly adjudicated the children as “abused
and neglected” as to Father. The court determined that this was
“true by clear and convincing evidence,” and it based this
determination on both Father’s partial rule 34(e) response and its
finding that Father “has issues related to the use of illegal
substances.”
Disposition Hearing
¶23 The court later held a disposition hearing. There, the State
directed the court’s attention to the child and family plan that
DCFS had submitted. That plan listed several proposed
responsibilities for Father, including the requirement that he
complete a substance abuse evaluation and submit to random
drug testing. The State asked the court to impose those
requirements on Father.
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¶24 After hearing from Father’s counsel, the court entered its
disposition order. In that ruling, the court determined that “all”
the parental responsibilities proposed in the child and family plan
were warranted, including the requirement that Father complete
a substance abuse evaluation and submit to random drug testing.
The court also ordered Father to “remain drug and alcohol free”
until the court “hear[d] otherwise from [Father’s] substance abuse
evaluation.”
¶25 Father timely appealed.
ISSUES AND STANDARDS OF REVIEW
¶26 Father first challenges the juvenile court’s determination
that the children were abused. It’s somewhat unclear from his
brief whether Father’s challenge rests on factual or legal grounds.
As explained below, however, we need not decide which
challenge Father is making (or, by extension, which standard of
review would apply) because, even without the abuse
determination, the juvenile court still had jurisdiction to enter
disposition orders based on its unchallenged neglect
determination.
¶27 Father also challenges the juvenile court’s disposition
order, and he does so on two fronts. First, he argues that the
disposition order was improper because it was based on an
unsupported finding that he “has issues related to the use of
illegal substances.” This court “review[s] the juvenile court’s
findings of fact for clear error.” In re G.D., 2021 UT 19, ¶ 37,
491
P.3d 867 (quotation simplified). And a “finding of fact is clearly
erroneous only when, in light of the evidence supporting the
finding, it is against the clear weight of the evidence.” In re B.C.,
2018 UT App 125, ¶ 2,
428 P.3d 18 (per curiam). Second, Father
argues that the court “erred in making a disposition order [that]
includ[ed] drug testing, evaluation, and treatment.” “The juvenile
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court’s decision can be overturned only if it either failed 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 E.R., 2021 UT 36, ¶ 31,
496 P.3d 58 (quotation
simplified).
ANALYSIS
I. Abuse Determination
¶28 Father first challenges the juvenile court’s determination
that the children were abused.
¶29 As an initial matter we note that although DCFS’s petition
alleged that the children were abused—including an allegation
that Father “had hit a child on the back hard enough to leave
bruising”—Father’s partial rule 34(e) response only denied the
allegation that he “has issues related to the use of illegal
substances.” From this alone, we could conclude that Father’s
challenge is meritless. But in any event, we need not decide this
challenge on its merits because Father has not challenged the
court’s separate and independent determination that the children
were neglected.
¶30 “Utah’s juvenile courts are creatures of statute, and thus
are courts of limited jurisdiction.” In re B.B., 2002 UT App 82, ¶ 12,
45 P.3d 527. “Because they are courts of limited jurisdiction,
juvenile courts are allowed to do only what the legislature has
expressly authorized.” Id.
¶31 Utah Code section 78A-6-103 defines the juvenile court’s
jurisdiction. Relevant to this appeal, that section states that a
juvenile court “has original jurisdiction over any proceeding
concerning . . . a child who is an abused child, neglected child, or
dependent child.” Utah Code Ann. § 78A-6-103(2)(a) (LexisNexis
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Supp. 2021). Once jurisdiction is established under that section,
“the court may order reasonable conditions to be complied with
by a minor’s parents or guardian, a minor’s custodian, or any
other person who has been made a party to the proceedings.” Id.
§ 78A-6-117(2)(q)(i). 3
¶32 As noted, the juvenile court adjudicated the children as
“abused and neglected,” thereby conferring jurisdiction under
section 78A-6-103(2)(a). Importantly, jurisdiction could properly
be based on either the abuse determination or the neglect
determination. See id. § 78A-6-103(2); see also In re S.F.,
2012 UT
App 10, ¶ 33,
268 P.3d 831 (“Importantly, once a child has been
adjudicated as neglected, the juvenile court has continuing
jurisdiction over the child . . . .”); cf. In re B.T.,
2009 UT App 182,
¶ 10,
214 P.3d 881 (holding that the facts were inadequate “to
support a determination of neglect” but remanding “for a finding
of dependency”).
¶33 While Father has challenged the abuse determination on
appeal, he has not challenged the separate determination that the
children were neglected. Because of this, we have no need to
decide his challenge to the abuse determination. After all, even if
we accepted Father’s arguments about the abuse determination,
the unchallenged neglect determination would still provide the
juvenile court with jurisdiction, thereby giving the juvenile court
authority to “order” Father to comply with “reasonable
conditions” following a disposition hearing. Utah Code Ann.
§ 78A-6-117(2)(q)(i). Indeed, Father appears to agree. In his brief,
3. Utah Code section 78A-6-117 was repealed in September 2021.
We cite the provision in effect at the relevant time, which was
section 78A-6-117(2)(q)(i). For reference, the current provision
now similarly states that “[u]pon adjudication,” a “juvenile court
may make the dispositions described in Subsection (2),” which
include “reasonable orders for the best interest of the minor.”
Utah Code Ann. § 80-3-405(1)(a), (2)(h) (LexisNexis Supp. 2021).
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he specifically “clarifie[d] that he is not arguing that he should not
be adjudicated and found to be within the jurisdiction of the
Court.”
¶34 In light of this concession, it is not clear what Father hopes
to gain by challenging the abuse determination. There are perhaps
some collateral consequences associated with an abuse
determination that do not follow from a neglect determination.
But other than a vague (and unsupported) reference to
“presumptions that reunification services should not be offered”
in cases of abuse, Father has not briefed any such difference.
Moreover, Father is not challenging the imposition of any such
collateral consequences in this case. Instead, the only relief that
Father seeks in this appeal is a reversal of the conditions that were
imposed on him in the disposition hearing. Because the
unchallenged neglect determination provided the court with
jurisdiction to order those conditions, we decline to address
Father’s challenge to the court’s abuse determination. See M.F. v.
J.F., 2013 UT App 247, ¶ 11,
312 P.3d 946 (recognizing that “[o]nce
the juvenile court has adjudicated the child as falling under its
jurisdiction, it has ongoing jurisdiction over that child and may
make dispositions by court order” (quotation simplified)).
II. Disposition Order
¶35 As noted, the juvenile court’s neglect determination
provided it with jurisdiction to “order reasonable conditions to be
complied with by [the children’s] parents or guardian, [the
children’s] custodian, or any other person who has been made a
party to the proceedings.” Utah Code Ann. § 78A-6-117(2)(q)(i).
Here, after a disposition hearing, the juvenile court ordered
Father to complete a substance abuse evaluation and submit to
random drug testing.
¶36 Father now challenges that order on two fronts. First, he
notes that these requirements were predicated on the court’s
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finding that he “has issues related to the use of illegal substances.”
According to Father, that finding was an “abuse of discretion.”
And second, Father argues that the order itself was unwarranted
because it was not supported by the court’s findings.
A. Finding Related to Illegal Substances
¶37 Father first challenges the court’s finding “related to
drugs and paraphernalia.” Though Father’s brief is somewhat
unclear on this point, we understand him to be challenging the
court’s finding that he “has issues related to the use of illegal
substances.”
¶38 As an initial matter, Father suggests that we should review
this for an abuse of discretion. This suggestion is misplaced,
however, because the ruling in question was a factual
determination. See generally In re K.D.N., 2013 UT App 298, ¶ 8,
318 P.3d 768 (“Juvenile courts are required to make
comprehensive and detailed factual findings in support of their
ultimate conclusions.”). Because it was a factual determination,
Father must show that the finding was clearly erroneous. See In re
G.D.,
2021 UT 19, ¶ 37,
491 P.3d 867. And under our accepted
standards, a “finding of fact is clearly erroneous only when, in
light of the evidence supporting the finding, it is against the clear
weight of the evidence.” In re B.C.,
2018 UT App 125, ¶ 2,
428 P.3d
18 (per curiam).
¶39 Properly framed, Father’s argument is that this finding was
clearly erroneous because there were “no indications or medical
assessments of drug ingestion” by Father. But as noted, the
juvenile court didn’t directly find that Father used drugs. Rather,
it found that Father “has issues related to the use of illegal
substances.” And in support of that finding, the court entered a
series of subsidiary findings, all of which Father has either
conceded or at least failed to successfully challenge on appeal. For
example:
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• The court found that police “discovered drug
paraphernalia including several pipes, tinfoil with heroin
residue, a burned spoon, and syringes in a camper on the
property where the family lived.” And relatedly, the court
also found that Father frequented that trailer to smoke
cigarettes. In his brief, Father admits that drug
“[p]araphernalia was found in a trailer he had been in and
used for smoking.”
• The court found that in February 2021, Father “refused to
allow [a DCFS] caseworker to see inside the trailer.” Father
does not challenge this finding on appeal.
• The court found that in February 2021, a DCFS investigator
asked Father to take a drug test, but that Father declined to
take the test. Father has not challenged this finding on
appeal, instead simply arguing that this refusal shouldn’t
matter because he had previously offered to take a drug
test and had allegedly “tested clean” when he took a “test
for his employer” on a different occasion.
• The court found that “Mother has stated that she uses
heroin with [Father] daily and that he uses approximately
a gram a day.” Father does not challenge the court’s
finding that Mother said this. Instead, he simply notes that
Mother later retracted this claim. But the court
acknowledged that Mother had retracted the claim. And
even so, the court still found (and thought it significant)
that Mother had said that Father used drugs.
• Relatedly, the court found it “concerning” and
“disturbing” that Mother had testified “that she gets heroin
for [Father], and she gives it to him.” While Father
emphasizes Mother’s “lack of credibility,” “we do not
disturb [the juvenile court’s] determinations of the
witnesses’ credibility because it “is in an advantaged
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position with respect to the parties and the witnesses.” 4 In
re G.D.B., 2019 UT App 29, ¶ 20,
440 P.3d 706 (quotation
simplified).
• Finally, the court found that Mother had drug problems of
her own. In his brief, Father admits that “there is
overwhelming evidence of the mother’s drug use,”
including admissions by Mother “that she has a significant
drug problem.”
¶40 Again, the finding at issue was that Father “has issues
related to the use of illegal substances.” And as the court later
explained, this finding was essentially that Father was “way too
close” to illegal drugs. The subsidiary findings described above
both individually and collectively support this because they show
that Father voluntarily placed himself in close proximity to both
people who used drugs and to illegal drugs themselves. Father
4. The juvenile court didn’t enter an explicit finding that Mother
was credible on this point. However, within the same sentence in
which the court acknowledged that Mother had at one point
“recanted” this claim, the court also stated that it still found it
“disturbing” that Mother had originally stated that “she picks up
heroin for [Father].” So whatever its concerns about Mother, the
court still found this statement to be credible enough to be relied
on as part of its decision-making calculus. In other such
circumstances, we have deferred to credibility findings that courts
“implicitly” made. See, e.g., Koehler v. Allen, 2020 UT App 73, ¶ 17,
466 P.3d 738; Gerwe v. Gerwe,
2018 UT App 75, ¶ 31,
424 P.3d 1113.
And such deference is warranted in situations like this one where
a court has expressly chosen to rely on a particular statement as
support for its ruling. See In re A.R.,
2017 UT App 153, ¶ 26,
402
P.3d 206 (recognizing that “courts are not required to make a
credibility finding for each witness” and that a court’s “findings
of ultimate facts implicitly reflect consideration of the
believability of the witnesses’ testimony” (quotation simplified)).
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therefore has not shown that this finding was “against the clear
weight of the evidence.” In re B.C., 2018 UT App 125, ¶ 2.
B. Drug Testing Requirement
¶41 At the disposition hearing, the court ordered Father to
submit to “drug testing, evaluation, and treatment.” Father
argues that this order was unwarranted.
¶42 As explained, when a juvenile court has adjudicated a
minor child as abused, neglected, or dependent, “the court may
order reasonable conditions to be complied with by a minor’s
parents or guardian, a minor’s custodian, or any other person who
has been made a party to the proceedings.” Utah Code Ann.
§ 78A-6-117(2)(q)(i). Whether a condition is “reasonable” depends
on the circumstances of each case. See In re S.A.,
2016 UT App 191,
¶ 7,
382 P.3d 642 (per curiam). Helpful considerations include
whether the condition is “reasonably related to the juvenile
court’s factual finding[s],” “proportionate to the concern raised
by” those findings, and “reasonably calculated to serve the best
interest of the child.” Id. ¶ 7. Furthermore, we can overturn the
juvenile court’s decision only “if it either failed 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 E.R.,
2021 UT 36, ¶ 31,
496 P.3d 58 (quotation simplified).
¶43 Our decision in In re S.A. is illustrative. There, the “juvenile
court found that the facts did not establish abuse or neglect but
entered an adjudication order stating that the child was
dependent as to [the father].” In re S.A.,
2016 UT App 191, ¶ 2. In
a subsequent disposition order, the court then ordered that the
father “complete a domestic violence assessment.” Id. ¶ 5. The
father challenged that order on appeal, claiming that he could not
be required to complete the assessment “because there was no
neglect adjudication” and because “the juvenile court found no
fault by” him. Id. We upheld the order on appeal, however,
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concluding that it was “reasonably related to the juvenile court’s
factual finding that the parents have hit each other on occasion in
the presence of the child.” Id. ¶ 7 (quotation simplified). We also
concluded that the condition was “proportionate to the concern
raised by that finding” and was “reasonably calculated to serve
the best interest of the child.” Id.
¶44 Here, Father claims that the court could not require him to
submit to drug testing and treatment without first finding that he
actually “used drugs” himself. Father argues that such a finding
was required by Utah Code section 62A-4a-205, under which “a
child and family plan may only include requirements that . . .
address findings made by the court.” Utah Code Ann. § 62A-4a-
205(8)(h).
¶45 But while the court didn’t find that there was clear and
convincing evidence that Father uses drugs, it did find that
“Father is connected to too many people and locations which
raises concerns for the Court that he may be abusing substances.”
(Emphases added.) And there was ample support for this concern.
In addition to its proximity-based findings, the court found that
Mother had told both Officer and Investigator that Father used
drugs, and it further found that Father had been resistant on at
least one occasion to DCFS’s request that he take a drug test.
¶46 As also discussed, the court’s findings showed that Father
frequently chose to be around illegal drugs and people who use
them. Again, Father commonly associated with both Mother and
his friend, both of whom had drug problems; he frequented a
trailer on his property in which drug paraphernalia was found;
and he was resistant to DCFS’s efforts to look inside that trailer.
As noted, this trailer was located on the property where Father
lived with the children. And finally, the children’s other caretaker
(Mother) has admitted that she has drug problems of her own,
and all of this arises against the backdrop of the court’s
unchallenged determination that the children were neglected.
20210396-CA 17 2022 UT App 98
In re G.B.
¶47 There are obvious dangers associated with advertently or
even inadvertently exposing children to illegal drugs. There are
also obvious dangers associated with leaving children in the care
of a parent or custodian who is under the influence of illegal
drugs. Here, given the reports of Father’s illegal drug use, his
ongoing proximity to people who use illegal drugs, his habit of
frequenting a place in which drug paraphernalia was later found,
and the fact that the children’s other parent had an ongoing drug
problem, we have no trouble concluding that the court’s decision
to require Father to submit to drug evaluation and testing was
“proportionate to the concern raised by” the findings and was
“reasonably calculated to serve the best interest” of the neglected
and thus vulnerable minor children who were sometimes in
Father’s care. In re S.A., 2016 UT App 191, ¶ 7.
¶48 Again, we cannot overturn the juvenile court’s decision
unless “it either failed 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 E.R.,
2021 UT 36, ¶ 31 (quotation
simplified). Because the juvenile court considered all the facts and
its decision was not “against the clear weight of the evidence,”
id.
(quotation simplified), we affirm the court’s disposition order. 5
5. Father also argues that the court violated his due process rights
by “impermissibly shifting the burden” to him “to prove he was
not using illicit drugs.” But with few exceptions, we consider only
issues that were “raised and argued” below. True v. Utah Dep’t of
Transp.,
2018 UT App 86, ¶¶ 23, 28–30,
427 P.3d 338. And to
properly preserve an issue, “a party must raise it before the
[juvenile] court specifically, in a timely manner, and with support
by evidence and relevant legal authority, such that the issue has
been presented to the [juvenile] court in such a way that the
[juvenile] court has an opportunity to rule on it.” Id. ¶ 24
(quotation simplified).
(continued…)
20210396-CA 18 2022 UT App 98
In re G.B.
CONCLUSION
¶49 We have no need to address Father’s challenge to the
juvenile court’s abuse determination because, even if Father is
correct, the neglect determination independently provided the
juvenile court with jurisdiction and the ability to enter disposition
orders in the best interest of the children. Moreover, we conclude
that the juvenile court’s finding that Father “has issues related to
the use of illegal substances” was not clearly erroneous. We
further conclude that the juvenile court’s requirement that Father
submit to “drug testing, evaluation, and treatment” was
reasonable.
¶50 Affirmed.
In support of his burden-shifting argument, Father points
to a passage from his counsel’s closing argument in which counsel
asserted that “[t]he burden is not [Father’s] to prove anything.”
But read in context, this appears to have been a response to the
State’s assertions about how the court should view Father’s
refusal to take the DCFS-requested drug test. It’s unclear whether
counsel meant this as a constitutional challenge of the sort Father
now makes on appeal, or whether counsel was instead simply
asking the court to give his refusal little evidentiary weight. In any
event, even if this passing statement could be read as a
constitutional challenge, Father did not provide the juvenile court
with any “evidence and relevant legal authority” to support such
a challenge. Id. As a result, the burden-shifting argument that
Father makes on appeal was not “presented to the [juvenile] court
in such a way that the [juvenile] court [had] an opportunity to rule
on it,”
id. (quotation simplified), so it is therefore unpreserved.
And because Father has not argued that any exception to the
preservation rule applies, we decline to address it. See id. ¶ 30.
20210396-CA 19
2022 UT App 98