Can a parent overcome prima facie evidence of unfitness in termination proceedings? In re A.W. Explained

In In re A.W., the Utah Court of Appeals addressed whether a father could overcome prima facie evidence of unfitness in parental termination proceedings after sexually abusing his child. The case provides important guidance on the requirements for demonstrating parental fitness following serious abuse allegations.

Background and Facts

The Division of Child and Family Services (DCFS) removed two children from their parents’ care after the eight-year-old daughter reported that her father had sexually abused her. Despite a statutory presumption against reunification in sexual abuse cases, the juvenile court ordered reunification services following DCFS’s recommendation. Over nearly two years, DCFS provided extensive services including substance abuse treatment, psycho-sexual evaluations, and domestic violence counseling. However, Father completed only one or two therapy sessions specifically addressing sexual appropriateness, despite court orders requiring such treatment. He also failed to comply with drug testing requirements and delayed participating in other services until shortly before his termination trial.

Key Legal Issues

The primary issues were whether Father’s sexual abuse constituted prima facie evidence of unfitness under Utah Code section 78A-6-508, whether DCFS made reasonable efforts to provide reunification services, and whether Father could demonstrate parental fitness despite his admitted abuse. Father also raised unpreserved constitutional due process arguments regarding the coordination between juvenile and criminal proceedings.

Court’s Analysis and Holding

The Court of Appeals affirmed the termination. The court declined to address Father’s constitutional arguments because they were not preserved at the trial court level. Regarding the substantive grounds, the court found that Father’s sexual abuse constituted prima facie evidence of unfitness under the statute, and that Father failed to overcome this presumption. The court rejected Father’s argument that his substance abuse treatment adequately addressed the sexual abuse, emphasizing that he was specifically ordered to complete therapy for “sexual appropriateness.” The court also affirmed the juvenile court’s finding that DCFS made reasonable efforts at reunification.

Practice Implications

This decision reinforces that preservation requirements apply strictly to constitutional arguments in termination proceedings. Practitioners must raise due process challenges at the trial court level or risk waiver on appeal. The case also demonstrates that courts will scrutinize compliance with specific treatment orders—general counseling cannot substitute for targeted therapy addressing the underlying abuse. For DCFS cases involving sexual abuse, the decision clarifies that reasonable efforts can be satisfied even when there is a statutory presumption against reunification, provided the agency makes a fair and serious attempt at reunification services.