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“Proffer” means an offering of proof. So in a proffer hearing, an attorney will merely tell the court what the evidence would show, instead of actually presenting the evidence to the court.

The purpose of a proffer hearing is to give the court an idea of what the evidence would be, had witnesses actually testified and the court actually seen the “hard evidence”. Proffer hearings often take place when time is short or when the issues are not terribly complex or would result in a final order of the court.

In contrast, an evidentiary hearing is one in which the litigants actually present evidence in court: in the form of witness testimony, video, audio, financial documents, etc. During an evidentiary hearing, the witnesses–including you, if you testify–will be subject to direct and cross-examination by the attorneys.

Thus, it should come as no surprise that it takes much less time and effort to prepare for a proffer hearing than preparing for a full evidentiary hearing. In a proffer hearing you won’t do much, if anything, during the actual hearing, with the exception of perhaps providing the occasional clarifying answer if the court asks you a clarifying question or two. No witnesses are called to testify in hearing conducted by proffer.

If you are unsure if your upcoming hearing will be a proffer or evidentiary hearing, ask your attorney. It could be catastrophic for your case if you show up at court believing the hearing is a proffer hearing when it’s a full-blown evidentiary hearing.

Utah Family Law, LC | divorceutah.com | 801-466-9277

The post What does it mean when a hearing is conducted “by proffer”? appeared first on Divorce Utah.

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First, you should know that while a Utah divorce court can order child support even after a child attains the age of 18 years, courts rarely do so; however, § 15-2-1 of the Utah Code does provide: “It is further provided that courts in divorce actions may order support to age 21.”

So while a Utah court cannot order that a parent pay for all of a child’s college education, it could order that a parent pay child support for three years after the child turns 18 (i.e., to age 21), which might help that child afford college.

Do Utah courts order that a parent be responsible for paying child support after his/her child attains adulthood? Yes, but not very often, and not without there being some special circumstance to justify continuing child support beyond age 18.

Here are a few Utah cases that explain when child support for adult children is appropriate:

Harris v. Harris, 585 P.2d 435, 436 (Supreme Court of Utah 1978)

In a divorce action, the courts are already injected into the affairs of the family in determining the needs of the children and parents, and the parents’ ability to provide between themselves for the needs of all. The courts need flexibility in re-arranging the obligations as new needs arise; and the purpose of Utah Code Annotated, 1953, Sec. 15-2-1 is to give the courts latitude in determining whether exigent circumstances exist which necessitate further support of dependent children rather than allowing them to become dependent on the State.


It is immaterial what the judge thought about the age of majority of children. The statute clearly states that it is 18 years. What is important is that the court has power to order continued support until age 21 when it appears to be necessary and when the court makes findings of any special or unusual circumstances to justify the order.

Carlson v. Carlson, 584 P.2d 864, 865 (Supreme Court of Utah 1978)

From the wording of that statute it could hardly be made plainer that the authority to extend the obligation of a parent to support his child beyond the age of 18 is discretionary. We see this as a wise and proper legislative recognition of the fact that, though children attain their majority and thus become emancipated at 18, there may nevertheless be unusual circumstances where the court would be justified in placing that additional burden on the parents. However, it is to be kept in mind that any discretionary power is not absolute, but must be exercised with reason and good conscience upon a foundation of facts so justifying.

On the basis of the above-quoted statute [§ 15-2-1] and of well-established decisional law, it is obvious that there must be some difference between the obligation of parents to their children before they reach their majority and after that event. The facts are commonly known that a large percentage of our people do not regard a college education as any absolute essential to living and do not attend college; and that even less ever graduate therefrom.  Further harmonizing with the views expressed herein is the fact that the public policy of our state relating to the requirement that children attend school until the age of 18 correlates with the age at which children are emancipated and attain their majority as provided in Section 15-2-1 above referred to.

In the case of Ferguson v. Ferguson this court has but recently had occasion to declare that a parent’s obligation to support his child normally terminates when the child attains his or her majority. We here reiterate the thought there expressed: that a parent will normally be quite willing to assist an adult child in furthering his education, but should not be compelled to do so except in unusual circumstances.

Ferguson v. Ferguson, 578 P.2d 1274, 1275 (1978 Supreme Court of Utah)

It is to be noted that the statute says the court “may” order support to age 21, meaning it is enabled to exercise its discretion.

The trial court in the instant matter did not order support beyond the age of eighteen, and the evidence supports his refusal to order continued support. At the time of the hearing, the girl was a senior in high school. She was working five hours per day, four days a week and seven hours on weekends, depending on her schedule. She testified that she earned $2.50 per hour and worked twenty hours per week or more. She paid nothing to her mother, the appellant herein, for board or room. She indicated a desire to attend the university here for four to six years.

Ordinarily a parent will be more than willing to aid and assist an adult child in securing a college education; however, one should not be compelled to do so by court order, except perhaps in some unusual circumstance, not present here. If he does not have the interests of his children at heart, that is and should be a matter of his own conscience and not of the court’s.

Jackman v. Jackman, 696 P.2d 1191 (Supreme Court of Utah 1985)

Section 15–2–1 of the Code states that the period of minority extends to age 18 and that “courts in divorce actions may order support to age 21.” U.C.A., 1953, § 15–2–1 (1983 Supp.) Thus, any child over 18 but not yet 21 may be the subject of a support order; there is nothing in the law limiting such support to cases where a child suffers from a mental incapacity.

Utah Family Law, LC | divorceutah.com | 801-466-9277

The post How do I get the court to order my ex to help pay for our kids’ college educations? appeared first on Divorce Utah.

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11 Questions to Ask Before Getting a Divorce
By Eric V Copage
May 18, 2017, New York Times

Common sense suggests that asking the right questions before getting married can make for a better union, but rarely is the other side of the coin examined.

That could be because, by the time the prospect of divorce surfaces, spouses may already be in a stressful frame of mind, and in no mood for a game of 20 — or even 11 — questions.

That is a mistake, said Nancy Colier, a psychotherapist in Manhattan. Even if the ultimate decision is to dissolve the marriage, asking the right questions before contacting a lawyer or mediator, and perhaps with the assistance of a marriage counselor, may prove worthwhile.

The New York Times asked some people well versed in the challenges and difficulties of marriage and divorce to suggest questions that may make a split more amicable, or even save the union. Here are 11 of their ideas:

1. Have you made clear your concerns about the relationship?

“You may think that you have communicated, but your partner may not have really heard,” said Sherry Amatenstein, a marriage therapist in Manhattan and Queens and the author of books on relationships.

“Research shows that people hear only between 30 to 35 percent of what is said to them,” she said, “because we’re so full of ‘I’m going to say this to them.’”

If, for example, you believe your spouse is not making you a priority and, say, fails to spend time with you, this behavior can’t be changed unless he or she is aware of your concerns.

“You want to be really clear that you’ve given it everything in terms of speaking truth to your partner,” Ms. Colier said. That could help in healing if the marriage dissolves, she said, because you’ll know that you have done everything possible to make the relationship work.

2. Do you and your spouse have shared expectations about the roles you play in the relationship?

“Sometimes the problem may be as simple as not understanding how your partner expects you to behave,” said Hope Adair, who, along with her ex-husband, was featured in a 2014 Times column that explored marriages that have failed. “It’s like, ‘This is what husbands or wives do and you’re not doing that.’”

If, for instance, one person expects the other to take the lead in managing finances, and he or she would prefer not to, problems can result.

3. If there is a way to save the marriage, what would it be?

The Rev. Kevin Wright, the minister of education at the Riverside Church in Manhattan, suggests this exercise: On one side of a sheet of paper or computer screen, make a list of what you think you need to do to save the marriage, and on the other side, what your spouse needs to do. And make sure your spouse does the same. It’s important that both of you perform this exercise. Otherwise, he said, “this question can very easily become a question all about what the other person needs to do.”

4. Would you really be happier without your partner?

“You have to look fiercely and realistically at whether what you’re getting in the relationship is worth what you’re giving up,” Ms. Colier said. “Perhaps your spouse doesn’t interest you as a sexual partner as much as you would want, but maybe your spouse’s co-parenting skills, willingness to help with everyday chores or companionship can offset the negative and make the trade-off worth it.” Getting a clear idea of what is most important in your life can make the decision of whether to stay in the marriage less overwhelming.

5. Do you still love him or her?

Even if the answer is yes, divorce may still be the right path. “There are a lot of reasons that people decide they can’t stay married, but our emotions aren’t wired on an on/off switch,” said Wendy Paris, a writer specializing in relationships. “Some of the anger we see in divorce comes from the fact that we do still feel love for this person, and can feel hurt, unloved in return, or unvalued.”

6. What is your biggest fear in ending the relationship?

“For some people, it might be the fear of being single again — the fear of being alone for the rest of their life,” Ms. Colier said. “For others, it is the fear of losing a sense of physical intimacy.” An understanding of what those fears are may help in deciding whether divorce is the best way forward, she said.

7. Are you letting the prospect of divorce ruin your self-image?

The realization that divorce may be near often makes people feel like failures, Ms. Paris said. Instead of dwelling on how you may have stumbled, look at the relationship’s end in “a more empowering way,” she suggested, concentrating on what you did right. For example, “I have given intimacy a real try,” or “I am trying different options to figure out what is the best for everybody.”

8. How can a divorce be handled to minimize the harm on the children?

“If you’re really miserable together, getting divorced is the best thing to do,” Ms. Amatenstein said. “But you will always be parents together. You are still going to be in each other’s lives. You need to think about how you’re going to do this and refrain from using the kids as cannon fodder.”

9. Are you prepared for the financial stresses divorce may bring?

“What I recommend to people is that they start thinking about the financial as early in the process as possible,” Ms. Colier said. “That means meeting, if you can, with a financial adviser, talking to lawyers and writing down what this is going to cost. There is so much that is going to change — and so much fear. It’s important to feel grounded with as many financial facts as possible. You’ll feel safer that way.”

10. Am I ready to handle the day-to-day details of living that my spouse took care of?

“We prepare for most other major transitions, but divorce can seem to erupt like a volcano,” Ms. Paris said, “and our lack of preparation adds to the chaos.”

Understand that you may find yourself paying bills or figuring out taxes for the first time in years. If there are children, who will take the lead in keeping track of their activities calendar?

11. How do I keep from making the same mistake the next time around?

Understand that the problem may be you, not the particular marriage. If you are bored in a relationship, you may find yourself bored in another one, too, said Erika Doukas, a clinical psychologist in private practice in Manhattan and Larchmont, N.Y. If you quarrel with your spouse over whose relatives to visit during the holidays, the same conflict may reappear in a subsequent marriage. Dr. Doukas said spouses who were able to realize that they contribute to marital problems could sometimes change course and possibly save a relationship or, failing that, make a future one more long lasting.

The post 11 Questions to Ask Before Getting a Divorce (from the New York Times) appeared first on Divorce Utah.

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This blog post answers the following questions:
  • Do I qualify to get a protective order?
  • How do I obtain a protective order:
    • against an abusive partner, spouse or ex-spouse?
    • for a child?
    • against someone I’m dating or dated in the past?
  • How do I defend myself against a protective order?
Are protective orders criminal proceedings?

No. A victim of domestic violence petitions a court civilly for a protective order. Filing for a protective order does not create a criminal action.

A criminal charge does not need to be brought in order to seek a civil protective order, although often a victim of domestic violence may find that the police charged the alleged violent partner with a crime.

What do protective orders do?

A protective order is a court order that prohibits the perpetrator from committing violence against the victim, attempting violence against the victim, or threatening the victim with violence.

The protective order can also include protective provisions for the victim’s children, if there are children and the victim requests protection for them.

A protective order can also include, and usually includes, additional provisions that the perpetrator must not contact the other person at their home or place of business and must not harass them in any way.

In addition, a protective order can also:

  • direct that there be no further violent actions by the perpetrator;
  • no contact between the parties;
  • award temporary possession of the parties’ residence, vehicles, and other personal property to the protective order applicant;
  • award temporary custody of children to the applicant and parent-time (visitation) to the respondent; and
  • order the respondent to pay child support, if the parties’ have children and the court deems it appropriate to order that child support be paid,

if the court deems such additional orders appropriate.

Who Can Get a Protective Order? How an adult can obtain a protective order.

Adults can obtain protective orders under the provisions of the Utah Cohabitant Abuse Act. Under the Cohabitant Abuse Act you may seek a protective order if you have been a victim of domestic violence at the hands of a “cohabitant”. Oddly enough, you don’t have to be living currently with someone to be considered a cohabitant for the purpose of obtaining a protective order. In some cases, you don’t have to have ever lived with someone to be considered a cohabitant for the purpose of obtaining a protective order. “Cohabitant” means a person who is 18 years of age or older who:

  • is or was a spouse of the other party;
  • is or was living as if a spouse of the other party;
  • is related by blood or marriage to the other party as the person’s parent, grandparent, sibling, or a mother- or father-in-law or daughter- or son-in-law
    • Note: whether step relationships (step-brother, step-father, etc.) are considered to be the same as blood relationships is not a question the Utah courts appear to have addressed or answered yet;
  • has or had one or more children in common with the other party;
  • is the biological parent of the other party’s unborn child;
  • resides or has resided in the same residence as the other party; or
  • is or was in a consensual sexual relationship with the other party.

“Cohabitant” does not include the relationship of natural parent, adoptive parent, or step-parent to a minor; or the relationship between natural, adoptive, step, or foster siblings who are under 18 years of age.

How a protective order can be obtained if you are seeking protection only for a child.

While an adult cohabitant can ask that his/her minor child(ren) be included when seeking a protective order against an adult cohabitant, if the only victim is a child or children, then then the protective order for the child has to be sought under the Title 78B, Chapter 7, Part 2 of the Utah Code, but not under the Cohabitant Abuse Act.

How to obtain a protective order against someone you’re dating or dated in the past.

If you are a victim of violence at the hands of someone you are dating, but are not living with, married to, or have children with, you can seek a “dating violence protective order” under Title 78B, Chapter 7, Part 4 of the Utah Code, the “Dating Violence Protection Act”.

The Process: Seeking or Defending Against a Protective Order

To obtain a protective order, you must first file a Request for a Protective Order with the court., and you must use the request forms the court provides.

If the Request for a Protective Order convinces the judge that immediate protection is needed, the judge will immediately issue a Temporary Protective Order.

The Temporary Protective Order takes effect as soon as a copy is served on the other party (the party against whom the protective order is sought is known as the Respondent) and will remain in place until there is a court hearing to determine whether the protective order should remain in place as a Final Protective Order.

A protective order hearing is intended to be held within 20 days of filing the request for protective order with the court.

The Hearing

At the protective order hearing, both parties will have an opportunity to present their respective sides of the story.

The Petitioner (the person seeking the protective order) has the opportunity to present evidence that domestic violence was committed, or that the Petitioner is in reasonable fear of domestic violence at the hands of the other party, the Respondent (the person defending against the request for a protective order).

The Respondent will have the opportunity to present evidence in his/her defense to show that domestic violence did not occur and that there is no reason for the Petitioner to fear for his/her safety.

The Effects of a Protective Order Benefits to the Petitioner

If you are the victim of domestic violence, a protective order can be a major help in your efforts to free yourself from abuse. A protective order can help ensure your abuser stays away from you, your family, your home, workplace, church, and school. After the petitioner obtains a protective order, if the Respondent violates the order in any way, the respondent can be charged criminally.

Remember, however, that a piece of paper can’t stop bullets, knives, or fists. If the person against whom you have requested a protective order has no respect for the law, then a protective order may not be enough protection and you may need to get out of town and hide.

Detriments to the Respondent

The stakes are high for the Respondent in protective order proceedings for two main reasons.

First, if a protective order is entered, it can have lasting effects one one’s reputation and standing in the community. If protective order is issued against you, it can lead to you losing your employment and/or to having difficulty finding employment (nobody wants a violent person on the payroll). A protective order can cause your family members, friends, neighbors, and fellow church members to shun you. It can lead to you being barred from your child’s school, church, athletic events, and even from the doctor’s office or hospital where your child is being treated.

A protective order can have lasting adverse effects on the Respondent including, but not limited to:

  • forcing you to move out of your home (if you previously shared a home with the Petitioner);
  • separating from your children and being relegated to seeing your children just a few times a month, perhaps even under third-party supervision that you are ordered to pay for;
  • putting you at a disadvantage in any ongoing or future divorce or child custody proceeding with the Petitioner by being branded as the abusive “bad guy”;
  • losing your job or having a harder time getting a job—having a protective order entered against you is information that can be accessed by current and future landlords and employers;
  • risk for deportation, if you are an immigrant in this country;
  • depriving you of the right to own, possess, purchase, or even use a firearm; and
  • appearing in the State’s domestic violence database.

Second, a protective order cannot be changed or dismissed without the court’s approval. Even if the Petitioner is willing to have the protective order dismissed, the protective order cannot be dismissed unless the court feels it safely can be dismissed. And final protective orders last forever, unless and until dismissed by the court.

How Do I Defend Myself Against a Wrongfully Sought Protective Order?

The first step in defending against a protective order that is wrongly sought against you is to ensure that you know the date, time, and place of the hearing on the application for protective order. This hearing is your opportunity to explain your side of the story, present your defenses, and make the case as to why a protective order should not be entered against you. If you fail to attend the hearing, it is all but certain that the protective order will be granted.

In preparing for the protective order hearing, you won’t be given much notice or time to prepare.

Gather any evidence you can that might aid in your defense.  This might include pictures, emails, text and phone records, letters, recordings or GPS records.  Anything that will help prove your defense can be valuable in this hearing.

Finally, the protective order hearing is incredibly important, and may be your only opportunity to defend against a protective order before it is entered, it is a good idea to consider hiring a good attorney to present your best case at this hearing.

How Do I Get a Protective Order Dismissed, or Modified?

Once the court enters a protective order, your options are to (1) request that a protective order be changed, or (2) request that a protective order be dismissed.

To modify the protective order, you must submit a Request to Modify Protective Order.  You may want to change a protective order to adjust parent-time (which is sometimes included in the order), or adjust some of the terms of the order for good cause.

If you would like to have a protective order dismissed, you must submit a Request to Dismiss Protective Order.  This request will be followed by another hearing, in which the parties and the Commissioner will meet again to determine whether the order is still necessary. If the Petitioner no longer indicates that he/she fears for his/her safety, the order may be dismissed.

If you have questions about seeking or defending against a protective order, contact a skilled and experienced attorney; it’s worth the effort and worth the money.

Utah Family Law, LC | divorceutah.com | 801-466-9277

The post Domestic Violence and Protective Orders: What do I Need to Know? appeared first on Divorce Utah.

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No matter what you’re told, marijuana use is STILL ILLEGAL in this state. Illegal use of street drugs, including but not limited to marijuana, can and surely will be used against you in a child custody dispute.

And you can’t magically make current (i.e., illegal) use of marijuana legal once medical marijuana use becomes legal in July of 2019. If you use of marijuana now, IT’S ILLEGAL NOW.

If you are a parent and you’re going through a child custody battle, DON’T SMOKE OR OTHERWISE CONSUME WEED!

It does not matter if you ate a marijuana cookie in Colorado or sucked on a marijuana lollipop in Las Vegas. If you have marijuana in your system in Utah, you’re breaking the law.

It does not matter:

  • if you claim that you need weed to ease the pain of cancer or any other physical affliction;
  • if you claim that you need weed to manage your mental illness; or
  • if you claim you that can’t afford prescription medication.
It does not matter what excuses you try to get the court to swallow; illegal use of street drugs, including but not limited to marijuana, can and surely will be used against you in a child custody dispute.

Don’t believe me? Disagree with me? IT DOESN’T MATTER!


Recreational use of marijuana will still be illegal even after the medical marijuana use exceptions become law.

The solution?

DON’T USE WEED ILLEGALLY! Duh! Don’t let weed come between you and your children. I can’t believe how much I have to fight over this with parents who use weed. It’s not, not nuanced, not up for debate. Use weed and you will be hurt in child custody matters, period.

(And to those naive souls among you who believe that once you have that medical marijuana card you’ll be in the clear, remember you heard it here first (you have been warned): it’s going to take a while before most judges and commissioners in this state will believe that smoking dope, legally or not, doesn’t make you a lousy parent. If you think that having that medical marijuana card means marijuana can’t become an issue in your child custody battle, THINK AGAIN. Be careful with marijuana and child custody).

Utah Family Law, LC | divorceutah.com | 801-466-9277

The post Marijuana and Child Custody Still Don’t Mix in Utah, You Fools! Ignore This at Your Peril! appeared first on Divorce Utah.

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2018 UT App 217
The Utah Court of Appeals


A.W., Appellant,
STATE OF UTAH, appellee.

No. 20180150-CA
Filed November 23, 2018

Fourth District Juvenile Court, American Fork Department
The Honorable Suchada P. Bazzelle
No. 1127762

Scott N. Weight, Attorney for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem

JUDGE DIANA HAGEN authored this Opinion, in which JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.

HAGEN, Judge:

¶1        The Utah Division of Child and Family Services (DCFS) removed Child and her younger sister from their parent’s home following a domestic violence incident and reports of sexual abuse perpetrated by the appellant, their father (Father). After an investigation, DCFS filed criminal charges against Father and filed a child welfare petition in juvenile court. The juvenile court found that Father had sexually abused Child but nonetheless ordered reunification services on the recommendation of DCFS. Two years later, the court terminated Father’s parental rights to Child and her younger sister, basing its decision on Father’s unfitness and failure of parental adjustment. It also concluded that termination was in the children’s best interests.[1]

¶2        Father argues that the juvenile court erred in terminating his parental rights for various reasons. First, Father contends that the court violated his due process rights by delaying reunification services while his criminal charges were still pending and by considering facts not in evidence when deciding to terminate his parental rights. Because Father failed to preserve these arguments below, we decline to consider their merits.

¶3        Next, Father argues that the court erred in determining that DCFS made reasonable efforts to provide him with reunification services and in finding that he was an unfit or incompetent parent. Father has failed to demonstrate that either of these determinations was against the clear weight of the evidence. Accordingly, we affirm.


¶4        In March 2016, Child reported to an extended family member that Father had performed oral sex on her when she was eight years old. Child also disclosed that her mother (Mother) told her to keep it a secret. After Child’s statement was reported to the police, DCFS immediately removed Child and her younger sister from Mother and Father’s care. The State also filed criminal charges against Father based on Child’s report.

¶5        Following the children’s removal from Mother and Father’s care, child welfare proceedings were commenced in juvenile court. The juvenile court found an immediate risk of harm to Child and her younger sister and concluded that “removal was appropriate and necessary and continuing removal from [Mother and Father was] appropriate.” The court ordered temporary custody of Child and her younger sister to DCFS. Due to the sexual abuse allegation, Father was prohibited from visitation with his children outside of therapy sessions.

¶6        Father admitted that  he  remembered  touching  his  daughter sexually after taking two sleeping pills, but he maintained that he did not recall performing oral sex on her. Based on Child’s report and Father’s admission, the court found that Child was abused and that there was a presumption against reunification. Despite the presumption against reunification, the court followed DCFS’s recommendation and ordered that Father participate in reunification services and undergo testing to determine his treatment needs. The court also set the primary goal for Child and her younger sister as returning to their parents’ care. To accomplish this goal, the court ordered that DCFS develop a child and family plan that stated the duties of the parties in working toward reunification and permanency. At a hearing in May 2016, at which Father was present with counsel, the juvenile court received a completed plan from DCFS, reviewed the plan with the parties, and ordered Father and Mother to comply with it.

¶7        At the same hearing, the court found that DCFS “had made reasonable efforts to finalize the child and family plan and move the children toward permanency, and services offered by the Division have been reasonable.” Father did not object to the court’s findings. The order also adopted the child and family plan, ordered compliance with it, and directed Father to complete a parental fitness and psycho-sexual evaluation and comply with any evaluation recommendations. In addition, the court entered an order stating that, should it determine in the future that reunification was against the best interests of the children or that the parents had failed to meet the objectives of the child and family plan, adoption would become the children’s new permanency goal.

¶8        In June 2016, DCFS successfully moved for a court order granting temporary guardianship of Child and her younger sister to their maternal grandparents. In August 2016, DCFS submitted a progress report to the juvenile court acknowledging that Father had completed substance abuse and psycho-sexual evaluations and requesting that the child and family plan adopt the recommendations from both treatment evaluations. During a hearing at which both Mother and Father were present, the court ordered that the child and family plan be amended in accordance with DCFS’s request and made a finding that DCFS had made reasonable efforts to “finalize the child[ren’s] service plan and its permanency goal.” Father did not object. The updated child and family plan ordered Father to complete a domestic violence assessment, update DCFS about his substance abuse treatment and testing, provide updates to DCFS and the juvenile court about his ongoing criminal case regarding Child’s sexual abuse, and complete services recommended in his psycho-sexual and substance abuse evaluations.

¶9        Father’s substance abuse evaluation recommended that he participate in outpatient treatment, abstain from the use of alcohol and drugs, and attend a recovery skills group. Father’s psycho-sexual evaluation recommended further treatment to address Father’s sexual abuse of Child. The evaluator specifically recommended that Father complete his outpatient substance abuse treatment program, “begin addressing the actual incident of sexually inappropriate behavior,” and submit to random drug testing. The evaluation also stated that the evaluator should be informed if Father was eventually convicted of a sex crime so that he could update his recommendations.

¶10      At a hearing in November 2016, the juvenile court reviewed Father’s evaluation with Father and his counsel and ordered that Father “complete therapy for sexual appropriateness.” Father’s attorney requested that the court enter the order for Father to complete the therapy “so that [Father could] get started on [it] right away.”

¶11      Additionally, the juvenile court ordered that Father submit to random drug testing at least eight times per month. In March 2017, DCFS requested and the court ordered that Father’s testing be increased to two or three times per week. Following a hearing held the same month, the court expressed concern in a written order about “[F]ather’s [urine analysis] compliance issues.” Thereafter, the juvenile court terminated all other reunification services but ordered Father to continue drug and alcohol testing.

¶12      In April 2017, DCFS petitioned for termination of Father’s parental rights, alleging that he had “failed to remedy the circumstances that caused the [c]hildren to be removed from his care.” Specifically, DCFS alleged that Father’s criminal charges had not been resolved, leaving his ability to provide care and stability for his children in question; his compliance with drug testing was “inconsistent”; he had failed to release information about his progress in therapy and domestic violence treatment to DCFS; and he had not obtained independent housing. The petition also stated that Child and her younger sister had “thrived in the care of their grandparents.” As a result, DCFS contended that it was “strictly necessary and in the best interests of the children” to terminate Father’s parental rights.

¶13      Before the trial on termination of Father’s parental rights, Father pled guilty to child abuse recklessly causing serious physical injury, a third degree felony. The district court placed Father on probation, the terms of which included Group A sex offender conditions.[2] As a result, his psycho-sexual evaluator provided an addendum to his original evaluation, modifying Father’s treatment recommendations. In the addendum, the evaluator recommended that Father participate in individual therapy, group therapy with other sexual offenders, and a psycho-sexual skills course. The stated goal of these treatment recommendations was to help Father “establish[] more functional interpersonal relationships, acknowledg[e] . . . his responsibility regarding his sexual acting out, and control[] his sexual impulses.” Father filed a motion in limine to exclude evidence of the evaluator’s modified recommendations from the termination trial as irrelevant and unduly prejudicial. The court granted Father’s motion in part, but ruled that it would consider the modifications to the extent they affected its determination of the children’s best interests.

¶14      At Father’s termination trial in September and  October 2017, the State presented testimony from Child’s therapist, Father’s psycho-sexual evaluator, Child’s maternal grandmother, and the DCFS permanency worker assigned to Father’s case. Child’s therapist testified that he had witnessed “nothing but positive interactions” between Child and her maternal grandparents and that he never recommended that Child and Father’s interactions be expanded beyond supervised therapy-based visitation.

¶15      Father’s psycho-sexual evaluator testified that he had reinterpreted the results of Father’s initial tests after he was notified that Father pled guilty to the criminal charges that arose out of Father’s sexual abuse of Child. The evaluator explained that, because some of his results “came up defensive,” which may have indicated that Father had been dishonest, Father’s admission that he had sexually abused Child gave additional meaning to Father’s test results.

¶16      The DCFS permanency worker testified that since March 2016 Father had participated in only two individual counseling sessions to address his sexual abuse of Child. The permanency worker further testified that Father had not provided any proof that he engaged in individual therapy sessions to address “sexual appropriateness” as ordered by the court in the November 2016 hearing. When she called the counseling service to obtain the records for DCFS, it confirmed that Father had attended only two individual sessions. In addition, she explained that DCFS was notified the day before trial that Father had only completed his domestic violence training a few weeks before the termination trial.

¶17      Father testified on his own behalf and presented the testimony of his mother, sister, and substance abuse counselor. Father testified that he completed substance abuse counseling and domestic violence treatment, but he admitted that he did not complete therapy sessions to specifically address his sexual abuse of Child. Father also recalled attending four domestic violence counseling sessions between April and August 2016 and attending only one additional individual treatment session, despite recommendations that he attend more. Father once again admitted to sexually abusing Child. Nevertheless, he maintained that it “wasn’t an intentional” act of abuse, because he had been under the influence of alcohol and prescription drugs at the time. Father testified that he addressed his sexual abuse of Child in his four sessions with a domestic violence counselor and that he felt he had taken accountability for the abuse. He further admitted at trial that he had missed drug tests on multiple occasions because he had remembered to call the testing center too late in the day and that he had simply stopped calling in September 2017, despite a court order to continue testing. In addition, Father admitted that he had consumed alcohol “a couple of times” since his juvenile court case was opened.

¶18      At the conclusion of the termination trial, the juvenile court determined that Father was “an unfit or incompetent parent.” In support of this determination, the court found that Father’s delay in participating in domestic violence treatment “left insufficient time for him to demonstrate that he ha[d] internalized and implemented the treatment and met the objective of the Child and Family Plan,” that Father’s “compliance with court-ordered [drug and alcohol] testing was inconsistent,” that Father “willfully decided not to comply” with his testing obligations, and that Father participated “in one individual counseling session to address his sexual abuse of [Child].”

¶19      In addition, the court found that Father’s extensive defense at trial of “his lack of progress in treating the sexual abuse issue” was “without merit.” Specifically, the court rejected Father’s assertions that he had complied with each of the court’s treatment orders and that his substance abuse and domestic violence treatment adequately addressed his sexual abuse of Child. The court remained unconvinced, in the absence of expert testimony, that Father’s consumption of drugs and alcohol was the sole cause of Child’s sexual abuse. But assuming it was, the court reasoned that Father was “solely responsible for having ingested the substances and cannot be excused from his misconduct.” The juvenile court also explained that while it would not consider the psycho-sexual evaluator’s modified recommendations in determining whether Father had complied with treatment recommendations,[3] it would consider them to the extent that they showed “what treatment [was] needed to fully rehabilitate [Father].”

¶20      Finally, after concluding that “DCFS made reasonable efforts toward [Father] to pursue a goal of reunification” and that Father “was given ample information, support[,] and communication from DCFS to achieve the objectives of the Child and Family Plan,” the court terminated Father’s parental rights and awarded temporary guardianship and custody to the children’s maternal grandparents, pending adoption.[4]

¶21      Father appeals.


¶22      Father argues that the juvenile court committed four errors in terminating his parental rights. First, Father contends that the juvenile court erred by failing to maintain the independence of the juvenile court proceedings from the concurrent criminal court proceedings and by making reunification contingent on resolution of the criminal charges. Next, Father contends that the juvenile court erred when it independently investigated the facts and relied on that evidence in its order terminating parental rights. With both contentions, Father essentially argues that the juvenile court violated his due process rights. See In re J.B., 2002 UT App 268, ¶ 8, 53 P.3d 968 (holding that a juvenile court’s reliance on facts that the father never had an opportunity to challenge violated due process); In re S.A., 2001 UT App 308, ¶ 21, 37 P.3d 1172 (holding that “due process rights are not violated by multiple or simultaneous proceedings” but “a criminal prosecution is a completely independent proceeding” from a child welfare case (quotation simplified)). “Constitutional issues, including due process, are questions of law which we review for correctness.” In re adoption of S.L.F., 2001 UT App 183, ¶ 9, 27 P.3d 583 (quotation simplified).

¶23      Father’s third contention is that the evidence did not support the juvenile court’s finding that DCFS had made reasonable efforts to provide him with reunification services. Juvenile courts are afforded “wide latitude of discretion as to the judgments [they] arrive[] at.” In re K.F., 2009 UT 4, ¶ 18, 201 P.3d 985 (quotation simplified). As such, “[w]e apply a clearly erroneous standard in determining whether the juvenile court’s findings are based upon sufficient evidence.” Id. “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 K.K., 2017 UT App 58, ¶ 2, 397 P.3d 745 (per curiam).

¶24      Finally, Father contends that the juvenile court’s grounds for terminating his parental rights were against the clear weight of the evidence. When considering whether to overturn a juvenile court’s decision to terminate parental rights, “we review the juvenile court’s factual findings based upon the clearly erroneous standard.” In re B.C., 2018 UT App 125, ¶ 2, 428 P.3d 18 (per curiam) (quotation simplified).


I. Father’s Due Process Claims

¶25      Father’s first two claims of error—that the juvenile court improperly delayed his case pending the resolution of the criminal charges against him and that it improperly considered evidence outside of the record—fail for lack of preservation. “Under our adversarial system, the parties have the duty to identify legal issues and bring arguments before an impartial tribunal[.]” State v. Johnson, 2017 UT 76, ¶ 14, 416 P.3d 443. “When a party fails to raise and argue an issue in the [court below], it has failed to preserve the issue, and an appellate court will not typically reach that issue absent a valid exception to preservation.” Id. ¶ 15. Furthermore, even if a legal argument was adequately preserved in the court below or an exception to preservation applies, a party must provide a “citation to the record showing that the issue was preserved for review[] or a statement of grounds for seeking review of an issue not preserved.” Utah R. App. P. 24(a)(5)(B).

¶26      Here, Father raises his constitutional claims for the first time on appeal and makes no argument that an exception to preservation applies. In fact, Father argued in his opening brief that his constitutional claims “were not required to be preserved.”[5] To the contrary, it is well established that Utah appellate courts will not review unpreserved constitutional claims unless an exception to the preservation rule applies. See, e.g., Kell v. State, 2012 UT 25, ¶ 36, 285 P.3d 1133 (declining to consider constitutional arguments on appeal where they had not been preserved and the defendant had not demonstrated that an exception to the preservation rule applied); Donjuan v. McDermott, 2011 UT 72, ¶ 4, 266 P.3d 839 (declining to consider a father’s constitutional claims in a child custody dispute because “he failed to preserve them in the district court”).

¶27      Accordingly, we decline to address Father’s due process claims.

II. “Reasonable Efforts” Finding

¶28      Father next claims that the juvenile court’s finding that DCFS made reasonable efforts to provide him with reunification services “is against the clear weight of the evidence.” Specifically, Father argues that DCFS failed to provide his psycho-sexual evaluator with information that would have impacted the evaluator’s recommendations. As a result, he contends that he was afforded an inadequate opportunity to comply with the recommendations in the addendum to his psycho-sexual evaluation and that DCFS deprived him of “reasonable visitation” with his daughters. We reject these arguments and affirm the juvenile court’s finding that DCFS made reasonable efforts to provide Father with reunification services.

¶29      When reunification services  are  ordered,  the  juvenile  court must find that DCFS made “reasonable efforts” to provide such services before terminating parental rights. Utah Code Ann. § 78A-6-507(3)(a) (LexisNexis Supp. 2018). “Reasonableness is an objective standard that depends upon a careful consideration of the facts of each individual case.” In re K.K., 2017 UT App 58, ¶ 5, 397 P.3d 745 (per curiam) (quotation simplified). In determining whether DCFS has made reasonable efforts at reunification, we afford the juvenile court “broad discretion,” In re A.R., 2017 UT App 153, ¶ 47, 402 P.3d 206 (quotation simplified), because of “the court’s opportunity to judge credibility firsthand . . . [and] the juvenile court judges’ special training, experience and interest in this field.” In re K.K., 2017 UT App 58, ¶ 2 (quotation simplified). Generally, as long as DCFS has made “a fair and serious attempt to reunify a parent with a child prior to seeking to terminate parental rights,” the division has complied with its statutory obligation. Id. ¶ 5 (quotation simplified).

¶30      Here, without acknowledging that the juvenile court ordered reunification services in a case in which there was a statutory presumption against doing so, see Utah Code Ann. § 78A-6-312(4)(LexisNexis 2012), Father fails to identify any facts in the record that suggest DCFS did not make reasonable efforts to provide him with reunification services.[6] The record shows that DCFS timely facilitated counseling for Father and Child, developed a child and family plan that the court adopted in an order, and referred Father to substance abuse and psycho-sexual evaluators. DCFS also supervised Father’s progress throughout the proceedings and monitored the children’s welfare.

¶31      Father also ignores the several times in the record in which the juvenile court made an unchallenged periodic finding—before its termination order—that DCFS had made reasonable efforts to provide him with reunification services. Rather, to support his argument, Father makes unsupported assertions that DCFS deprived him of an opportunity to comply with the recommendations in the psycho-sexual evaluation addendum and that, as a result, he could not visit with Child outside of therapy. As to the psycho-sexual evaluation addendum, Father has pointed to no evidence in the record that suggests the addendum was not made available to Father as soon as possible. The evaluator testified that he made changes to his recommendations immediately after DCFS notified him of Father’s criminal conviction, which prompted the modifications.

¶32      Furthermore, although Father accurately asserts that the addendum was not provided to him until after reunification services were terminated, he fails to show how he was prejudiced by this timing. The juvenile court did not consider the addendum to the evaluation in determining that Father had failed to participate in reunification services and comply with previous treatment recommendations. As Father acknowledges, the court considered the addendum only to determine “what [was] needed to fully rehabilitate [Father] in light of his criminal conviction” for the purpose of deciding what was in the children’s best interests going forward.

¶33      As to Father’s argument that DCFS failed to provide him with reasonable visitation, both Child’s therapist and the DCFS permanency worker testified at trial that visitation was dependent on what Child and her treatment providers decided was in her best interest. From the outset of his juvenile court case, Father’s visitation with Child was limited due to his admitted sexual abuse of Child.[7] And although the..

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Child Support Can Be Modified, If Circumstances Warrant

As financial situations change, the amount of child support ordered may no longer be reasonable or even feasible.

Your income may have decreased due to no fault of your own. The child support payor’s income may have substantially increased. A child’s needs may have significantly changed.

You cannot modify your child support obligation simply because you want to; however, if there material and substantial changes in the financial circumstances of a parent and/or child(ren) between the time the original child support order was issued and now, it is possible for the child support obligation to be modified to reflect this change in circumstances.

Changes in circumstances that might warrant a change in the child support order could include your children attaining the age of adulthood, one parent spending more time with the children, or a change in income for you and/or your ex-spouse.

If you lose your job or suddenly or have other reasons why your child support amount is too high, your monthly child support obligation does not change automatically. Indeed, each month’s obligation becomes a judgment against you for the full amount ordered. Failure to pay child support in full can subject to you sanctions by the court, even criminal prosecution.

So if you cannot pay the amount of child support ordered, you need to take action to seek a modification of your child support obligation as soon as possible. If you do not petition or move to modify support, you will be deemed “arrears” in the payment of support.

Under Utah Code Section 78B-12-210(8), child support order can be modified by motion if three or more years have passed since the order was entered and:

  • there is a difference of 10% or more between the support amount as ordered and the new support amount under the child support guidelines;
  • the difference is not temporary; and
  • the proposed child support amount is consistent with the amount set by the child support guidelines.

If any of these factors is missing, you can still seek a modification of child support, but not by motion. Instead, you must file a petition to modify child support under Utah Code Section 78B-12-210(9). Under this section, there must have been a material change:

  • in custody;
  • in the relative wealth or assets of the parties;
  • of 30% or more in the income of a parent;
  • in the employment potential and ability of a parent to earn;
  • in the medical needs of the child;
  • in the legal responsibilities of a parent for the support of others;
  • in the availability or cost of health care coverage;
  • in work-related or education-related child care expenses of the payor or the payee of child support; or
  • due to the emancipation of a child.

The material change must result in a difference, which is not temporary, of 15% or more between the support amount as ordered and the support amount as required under the child support guidelines.

As soon as your financial circumstances change, you should consult with a family law attorney to determine if a support modification is warranted. They can help you seek this modification, changing the amount you are required to pay (or the amount you are to receive) as soon as possible.

Utah Family Law, LC | divorceutah.com | 801-466-9277

The post My child support is too high/too low. What can I do about it? appeared first on Divorce Utah.

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