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2024 UT App 91 – In re R.D. – Juvenile Court Jurisdiction – Parental Presumption

2024 UT App 91 – In re R.D.

THE UTAH COURT OF APPEALS

IN THE INTEREST OF R.D. AND Z.J., PERSONS UNDER EIGHTEEN YEARS OF AGE.

K.J., Appellant, v. N.J. AND A.J., Appellees.

Opinion No. 20220798-CA Filed June 27, 2024, Second District Juvenile Court, Ogden Department

The Honorable Debra J. Jensen No. 1174368

K. Andrew Fitzgerald, Attorney for Appellant, Jason B. Richards, Attorney for Appellees Martha Pierce, Guardian ad Litem

JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGES GREGORY K. ORME and AMY J. OLIVER concurred.

MORTENSEN, Judge:

¶1 A mother and her children were in the company of the mother’s boyfriend as he allegedly robbed a business. The children had recently been adjudicated as abused by their father, who was living with the mother at the time of the abusive events, and were thus under the jurisdiction of the juvenile court. Fearing that this latest incident might result in the children being placed in foster care, the mother sent the children to her parents in Texas. The children have been in Texas ever since. After the children moved in with them, the grandparents intervened in the juvenile court case and petitioned the court for guardianship and custody, which the court granted. The mother now appeals, asserting, in addition to other claims of error and ineffective assistance of counsel, that the juvenile court lacked jurisdiction to grant the guardianship and custody. We affirm on all grounds.

BACKGROUND[1]

¶2 K.J. (Mother) has two children (the Children) by the same man (Father)—a girl born in December 2015 and a boy born in January 2018.

¶3 In October 2018, law enforcement was dispatched to a disturbance at the family home. Father was intoxicated, had become “destructive,” and was “not making much sense.” Father transported to the hospital. Within a few days of this incident, Mother sent the Children to live with her parents, N.J. and A.J. (Grandparents), in Texas, where they stayed about three months.

¶4 In February 2019, law enforcement was again dispatched to the family home. Father was again found intoxicated, and he had locked Mother out of the residence. It was reported that Father would “jump on” Mother and “shake her.”

¶5 In April 2019, law enforcement responded to a call involving aggravated assault at the family home. Father was yet again intoxicated, and he had pushed Mother into a wall of their apartment, an action that knocked her to the ground. Father had then grasped Mother from behind and had begun hitting her, giving her a bloody nose. Father had also choked Mother, causing her to nearly lose consciousness. The Children were present during this assault.

¶6 A few days after this incident, having received a referral regarding the Children, the Utah Division of Child and Family Services (DCFS) initiated a home visit. Mother admitted that law enforcement had been called to the home due to Father’s “drinking and getting out of control.” But she “minimized the domestic violence incidents,” noting that that she could usually get the Children to bed and sleeping so they would not hear any of the parents’ arguments. Mother asked the DCFS caseworker to tell Father that she still wanted “to be with him,” but the caseworker advised Mother that doing so would be a violation of a no contact order that was in place. And as the caseworker was leaving the home, Mother said, “So what [you are] saying is the best thing I can do is go to court next week and ask for the no contact order to be dropped?” The caseworker responded that was not what was being communicated, and she discussed with Mother “the concerns of her failure to protect the [C]hildren from the ongoing domestic violence.” Mother responded that she just wanted to speak with Father.

¶7 About a week later, DCFS spoke with Father, who was at this point incarcerated. He admitted that there had been a “scuffle” in which he had “knocked” Mother in the nose but claimed there had only been one physical altercation between the two of them.

¶8        In May 2019, DCFS initiated proceedings, pursuant to Utah Code section 80-3-201(1), by filing a petition for protective supervision services (PSS petition) that alleged the Children were abused, neglected, or dependent.[2] Mother and Father both entered rule 34(e) pleas in response to the allegations contained in the PSS petition. 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.”).

¶9 In July 2019, the juvenile court determined that the Children were subject to the jurisdiction of the juvenile court and adjudicated them “abused children” by Father in that they “suffered non-accidental harm or threatened harm” when Father “committed domestic violence” in their presence by assaulting Mother. Accordingly, the court appointed a guardian ad litem (GAL) to represent the best interests of the Children; ordered DCFS to provide protective supervision services; ordered Mother and Father to comply with a family plan that included mental health assessments, a domestic violence assessment, completion of a parenting course, and maintenance of stable housing and income; and ordered Father to complete drug and alcohol assessment and treatment. The juvenile court further ordered Mother and Father to “have no contact with each other in the presence” of the Children.

¶10 Notably, the court made a custody determination at this juncture in two respects. First, at least impliedly, it determined that the Children would remain in the custody of Mother, albeit subject to the jurisdiction of the court pursuant to the provisions of the family plan. Second, it placed severe restrictions on Father’s parent-time with the Children. Specifically, the court ordered that Father “shall not return to the family home until further order” of the court. And the court specified that “[v]isitation between [Father] and the [C]hildren shall be reasonable and supervised as approved by the [GAL], until further order of the [c]ourt.”

¶11 Not long after the adjudication, Mother began a relationship with another man (Boyfriend). This relationship too was marked by incidents of domestic violence. In one instance, Boyfriend called police claiming that Mother tried to hit him with her car, while a witness said it was Boyfriend who jumped on the hood of Mother’s car. But a more serious incident—at least insofar as it concerned the safety of the Children—happened when Boyfriend allegedly robbed an oil-change shop while Mother and the Children were with him in Mother’s car. This prompted Mother, in October 2019, to arrange for the Children to go to Texas to live with Grandparents again. Mother was apparently “afraid that the [Children] would go to foster care if [authorities] thought [she] was involved in the robbery.” The Children have been in Texas ever since.

¶12 In June 2020, Grandparents moved to intervene in the Children’s welfare action and petitioned the juvenile court for temporary child custody. The court granted the motion and awarded them temporary custody. In an October 2020 hearing, the court changed the Children’s permanency goal to permanent custody with a relative and terminated reunification services with Mother and Father. Also in October 2020, Grandparents petitioned for permanent custody and guardianship, which was supported by the GAL. Mother and Father opposed

Grandparents’ petition. As relevant here, Mother argued that there had been a substantial and material change in her circumstances and requested the Children be returned to her custody. In December 2020, the court released DCFS from the case.

¶13 In August 2022, the juvenile court entered detailed findings, concluding that Mother had not changed her circumstances and that it was necessary for the welfare of the Children that Grandparents be awarded permanent custody and guardianship.[3]

¶14      Mother appeals.

ISSUES AND STANDARDS OF REVIEW

¶15 Mother first contends that the juvenile court lacked jurisdiction under the Utah Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), see generally Utah Code §§ 78B13-101 to -318, to enter custody orders in favor of Grandparents. Whether a court has jurisdiction is a matter of law reviewed for correctness. In re adoption of B.B., 2017 UT 59, ¶ 16, 417 P.3d 1.

¶16 Next, Mother argues that the juvenile court violated the Interstate Compact on the Placement of Children (ICPC), see generally Utah Code §§ 80-2-901 to -910, by failing to ensure that Grandparents were fit for custody of the Children prior to placement. “The proper interpretation and application of a statute is a question of law which we review for correctness.” In re adoption of B.H., 2019 UT App 103, ¶ 9, 447 P.3d 110 (cleaned up), aff’d, 2020 UT 64, 474 P.3d 981.

¶17 Mother next asserts that her trial counsel (Counsel) was ineffective for failing to call her therapist to testify on her behalf regarding her current mental health status. “An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law.” In re C.M.R., 2020 UT App 114, ¶ 11, 473 P.3d 184 (cleaned up).

¶18 Mother lastly maintains that the juvenile court erred in applying an incorrect standard of proof, arguing that the custody dispute should have been governed by the parental presumption. The application of the correct standard of proof, including the juvenile court’s “interpretation of the parental presumption, presents a legal issue, which we review for correctness.” In re A.T., 2020 UT App 50, ¶ 11, 464 P.3d 173.

ANALYSIS

I. Jurisdiction

¶19 Mother argues that the juvenile court lacked jurisdiction to consider Grandparents’ custody petition because the Children had been residing in Texas for more than six months prior to the petition. Mother’s argument is grounded in the UCCJEA, which states, in pertinent part, that

a court of this state has jurisdiction to make an initial child custody determination only if . . . this state is the home state of the child on the date of the commencement of the proceeding[] or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.

Utah Code § 78B-13-201(1)(a). In developing this argument, Mother points to the definition of a child custody proceeding found in the Utah Code:

“Child custody proceeding” means a proceeding in which legal custody, physical custody, or parenttime with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear.

Id. § 78B-13-102(4).

¶20 From these statutory provisions, Mother argues that the PSS petition filed by DCFS did not indicate that “legal custody” or “physical custody” of the Children was at issue, asserting “the PSS petition was arguably not a ‘child custody proceeding’ for purposes” of the UCCJEA. Mother further argues that because the Children had been in Texas for more than six months by the time Grandparents petitioned for custody in June and August 2020, “Texas was the ‘home state’ of the Children under” the UCCJEA and Utah did not have jurisdiction to consider Grandparents’ custody petition.

¶21 Mother is mistaken. The statutory language makes it clear that the Utah juvenile court had jurisdiction over the custody petition. Under the plain language of the UCCJEA, Utah was the “home state” of the Children “on the date of the commencement of the proceeding” that determined child custody. See id. § 78B-13201(1)(a) (“[A] court of this state has jurisdiction to make an initial child custody determination only if . . . this state is the home state of the child on the date of the commencement of the proceeding . . . .”). And a “child custody proceeding” includes “a proceeding in which . . . parent-time with respect to a child is an issue.” See id. § 78B-13-102(4) (emphasis added).

¶22 Here, the “child custody proceeding” commenced when the juvenile court adjudicated the PSS petition. While it is true that the PSS petition—filed in May 2019 when the Children were living in Utah—did not mention legal custody, physical custody, or parent-time, it did recount three incidents of domestic violence, one of which was committed in the presence of the Children, perpetrated by Father. Based on these allegations, DCFS asked the juvenile court to adjudicate the Children “abused, neglected and/or dependent” because they had “suffered non-accidental harm or threatened harm . . . [w]hen [Father] committed domestic violence in the presence of the [C]hildren by hitting [Mother,] causing her a bloody nose, choking her, and knocking her to the ground.”

¶23 In adjudicating the PSS petition, the court specifically found that the Children were “abused” by Father in that the Children had “suffered non-accidental harm or threatened harm” when Father “committed domestic violence” in their presence.

And, as it was allowed to do given the finding of abuse,[4] the juvenile court also made a “custody” determination—at least according to the terms of the UCCJEA—when it limited Father’s parent-time. Specifically, the juvenile court ordered that Father “shall not return to the family home until further order” of the court. And it further specified that “[v]isitation between [Father] and the [C]hildren shall be reasonable and supervised as approved by [DCFS] and the [GAL], until further order of the [c]ourt.”

¶24 The Utah juvenile court obtained jurisdiction as soon as it entertained the PSS petition because two conditions were met. First, the PSS petition resulted in a “proceeding for . . . abuse . . . and protection from domestic violence.” Id. § 78B-13-102(4). Second, in that proceeding, “parent-time with respect to [the Children was] an issue.” Id. Accordingly, under the terms of the UCCJEA, the PSS petition gave rise to a child custody determination because parent-time—specifically with respect to Father—was “an issue.” Id. And the juvenile court had jurisdiction from that time on because Utah was the “home state of the [Children] on the date of the commencement” of the PSS petition and resulting proceeding. See id. § 78B-13-201(1)(a).

¶25 Once jurisdiction attached at the commencement of proceedings by the filing of the PSS petition, it remained intact. Mother argues the opposite—that while Utah may have had jurisdiction of the initial matters in the PSS petition, jurisdiction switched to Texas for the custody matters related to

Grandparents. We rejected a similar argument in In re A.J.B., 2017 UT App 237, 414 P.3d 552, where we stated that “once a state makes an initial child custody determination, that state obtains exclusive, continuing jurisdiction, which exists until that state relinquishes or is divested of its exclusive jurisdiction in accordance with the UCCJEA or a similar act.” Id. ¶ 16 (cleaned up). Because the juvenile court never relinquished its jurisdiction over the case here, “whether pursuant to section 207 of the UCCJEA or any other statute,” it retained jurisdiction over the Children. See id.see also Utah Code § 78B-13-207(1) (“A court of this state that has jurisdiction under this chapter to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum.”).

¶26 In sum, the Utah juvenile court’s jurisdiction commenced on the filing of the PSS petition—which alleged abuse, neglect, and dependency due to domestic violence—and resulted in limitations on Father’s parent-time. Accordingly, Mother’s first claim of error fails.

II. ICPC Violation

¶27 Mother next contends that the juvenile court also violated the ICPC by failing to ensure that Grandparents were fit for custody before placing the Children with them.[5]

¶28 The purpose of the ICPC is to ensure that “[e]ach child requiring placement” receives “the maximum opportunity to be placed in a suitable environment and with persons or institutions having appropriate qualifications and facilities to provide necessary and desirable care.” Utah Code § 80-2-905 art. I(1). The ICPC also allows the “appropriate authorities in a state where a child is to be placed [to] have full opportunity to ascertain the circumstances of the proposed placement, thereby promoting full compliance with applicable requirements for the protection of the child.” Id. § 80-2-905 art. I(2). Moreover, the ICPC ensures that the “proper authorities of the state from which the placement is made may obtain the most complete information on the basis of which to evaluate a projected placement before it is made.” Id. § 80-2-905 art. I(3).

¶29 By its own terms, the ICPC is oriented toward facilitating interstate placements in the context of anticipated adoptions coordinated by state authorities or private agencies, a point that it makes explicitly clear:

This compact shall not apply to . . . [t]he sending or bringing of a child into a receiving state by [the child’s] parent, step-parent, grandparent, adult brother or sister, adult uncle or aunt, or . . . guardian and leaving the child with any such relative or nonagency guardian in the receiving state.

Id. § 80-2-905 art. VIII(1). Thus, the ICPC exempts parents from the requirement of ascertaining the suitability of the placement if the parent is sending the child to one of the identified relatives or guardians.

¶30 Here, Mother is the one who sent the Children to stay with Grandparents, a point about which there is no disagreement. Mother sent the Children to live with Grandparents after a criminal episode allegedly committed by Boyfriend in the presence of the Children because she was concerned that her alleged involvement in the incident might lead to the placement of the Children in foster care. Thus, the sending of the Children to live with Grandparents was voluntarily and directly done by Mother while the Children were in her custody. It was only later, after Grandparents petitioned for custody due to Mother’s persistent instability and ongoing involvement in relationships plagued by domestic violence, that the juvenile court entered custody orders for Grandparents. And by this time, the Children were physically living in Texas.

¶31 The provisions of the ICPC that work to ensure the suitability of the placement to which a child is sent simply do not apply here because Mother herself sent the Children to live with Grandparents long before they petitioned for custody. Accordingly, Mother’s second claim of error fails.

III. Ineffective Assistance

¶32 Mother’s next claim is that she received ineffective assistance when Counsel failed to call her therapist to testify “as to her current mental health status in terms of her ability to parent the Children effectively.” Mother argues that having her therapist testify would have shown that “she was actively engaged in and had never stopped working on her mental health issues/concerns,” thus allowing the juvenile court “to make better informed decisions” about her parenting abilities.

¶33 Parents are entitled to the effective assistance of counsel in child welfare proceedings. See In re. E.H., 880 P.2d 11, 13 (Utah Ct. App. 1994) (recognizing an implicit guarantee of effective assistance of counsel in a proceeding to terminate the fundamental right of parenting one’s children); see also Utah Code § 78B-22-201(1)(b). “To prevail on an ineffective assistance of counsel claim, Mother must show that (1) Counsel’s performance was deficient and (2) this deficient performance prejudiced the defense. Because failure to establish either prong of the test is fatal to an ineffective assistance of counsel claim, we are free to address Mother’s claims under either prong.” In re C.M.R., 2020 UT App

114, ¶ 19, 473 P.3d 184 (cleaned up). For the deficiency prong, Mother must demonstrate “that, considering the record as a whole, Counsel’s performance was objectively unreasonable.” In re R.G., 2023 UT App 114, ¶ 16, 537 P.3d 627. “In other words, Mother must show that . . . Counsel rendered a deficient performance in some demonstrable manner, and that Counsel’s performance fell below an objective standard of reasonable professional judgment.” In re C.M.R., 2020 UT App 114, ¶ 20 (cleaned up).

¶34 Here, Counsel had an easily discernable strategic reason to refrain from calling Mother’s therapist to report on her current mental health progress. The record indicates that the juvenile court made findings that Mother had been untruthful throughout the proceedings and was not taking her mental health treatment seriously. Specifically, the court found that Mother (1) had not “internalized her treatment”; (2) was not “truthful with [DCFS], her treatment providers, her parents, or the [c]ourt”; (3) did not disclose domestic violence incidents involving Father; (4) claimed that she “was fully engaging in her individual counseling and being honest with her therapist” while also admitting through her testimony that she was “not fully honest [with her therapist] about the extent of her contact” with Boyfriend; and (5) was “vague” in stating that she did not know if she was present when Boyfriend committed the robbery with the Children in the car. The court also stated that “[b]ecause of [Mother’s] dishonesty to the [c]ourt for nearly two years,” it had no way of knowing whether Mother was currently in contact with Boyfriend. And it concluded, “She has continued to violate [c]ourt orders, . . . and she continues to not understand the dangerous situation she puts [the Children] in when bringing people around them with violence and drug use problems.”

¶35 Knowing of Mother’s serious credibility problems— problems obviously well known to the court—Counsel had a sound strategic reason not to call her current therapist as a witness. Mother’s ongoing pattern of lying, not following court orders, and failing to internalize her therapy would have given Counsel little reason to suspect that anything had changed with respect to her behavior. Counsel might well have feared that calling her current therapist would have, at best, done nothing to help Mother’s case or, more likely, compounded the honesty concerns that already plagued her.

¶36 Moreover, Counsel would have legitimate concerns about what might be revealed on cross-examination. While limiting exposure of inconsistencies that would exacerbate Mother’s credibility issues might be possible on direct examination, Counsel would have no such control over the direction of questioning on cross-examination, where opposing counsel would certainly take the opportunity to highlight Mother’s already glaring credibility issues.

¶37 Because Counsel had a strategically reasonable basis for not calling the therapist as a witness, Mother’s ineffective assistance claim necessarily fails.

IV. Burden of Proof

¶38 Mother’s final assertion is that the juvenile court applied the incorrect standard for the post-adjudication hearing. More specifically, Mother argues that the court “applied the wrong standard by requiring proof” from Grandparents of what was necessary for the welfare of the children, see Utah Code § 78A-6357(4)(a), rather than considering the more demanding parentalpresumption standard. The parental presumption means that “where one party to [a custody dispute] is a nonparent, there is a presumption in favor of the natural parent, even if an ordinary best-interest inquiry would come out in favor of the nonparent.” In re A.T., 2020 UT App 50, ¶ 12, 464 P.3d 173 (cleaned up).

Parental Presumption

¶39 Mother was not entitled to the parental presumption. Our supreme court has expressly stated that “the parental presumption does not apply . . . to cases brought before the juvenile court on abuse, neglect, or dependency petitions. In such cases, the petition alone is sufficient to overcome the parental presumption for purposes of adjudicating the allegations in the petition.” In re K.F., 2009 UT 4, ¶ 69, 201 P.3d 985 (cleaned up); accord In re A.S.A., 2012 UT App 151, ¶ 3, 279 P.3d 419. And “in cases in which abuse, neglect, or dependency is established, the usual parental presumption that prevents the State (a nonparent) from intervening in parental decision-making no longer applies, and the State (supervised by the juvenile court) may take custody of children, even over their parents’ objections, and place them appropriately.” In re A.T., 2020 UT App 50, ¶ 14.

¶40 Here, not only had DCFS filed a petition alleging abuse, neglect, or dependency, but the juvenile court had actually adjudicated the Children as abused. This court long ago observed that “the legislature has determined, as evidenced by the statutory scheme, that in cases involving a petition alleging the abuse, neglect, or dependency of a child, the parental presumption does not apply. . . . The legislature has determined that abuse or neglect of a child at the hands of a parent, or dependency of a child, is incompatible with the presumption that the child is best served by being in the parent’s custody.” In re J.M.V., 958 P.2d 943, 948 (Utah Ct. App. 1998). Since the Children had been so “adjudicated and the court had continuing jurisdiction over them, it was also within the court’s dispositional authority to vest legal custody” in DCFS or in another appropriate person. See In re S.F., 2012 UT App 10, ¶ 44, 268 P.3d 831 (cleaned up); see also Utah Code § 80-3-405(1)– (2) (“Upon adjudication . . . , [t]he juvenile court may vest custody of an abused, neglected, or dependent minor in [DCFS] or any other appropriate person . . . .”). Thus, Mother’s parental presumption didn’t apply because the juvenile court exercised continuing jurisdiction over the Children after the adjudication, which allowed the court “to impose any of the dispositional choices available to it.” See In re M.J., 2011 UT App 398, ¶ 56, 266 P.3d 850; see also In re S.A., 2016 UT App 191, ¶ 6, 382 P.3d 642 (“The adjudication of a child as dependent, neglected, or abused forms the basis for juvenile court jurisdiction, thereby making all of the dispositional options . . . available to that court.”).

¶41 In sum, after the juvenile court’s adjudication pursuant to Mother’s entry of a rule 34(e) plea in response to the allegations of abuse, neglect, or dependency contained in the PSS petition, Mother was not entitled to invoke the parental presumption.

Burden of Proof

¶42 Even deprived of the parental presumption, Mother argues that the juvenile court held her “to a higher standard than required under the rules for her to modify a temporary order of custody,” thereby shifting the burden to her rather than keeping it with Grandparents. It appears that Mother is arguing that the juvenile court erred not in applying the wrong burden of proof to Grandparents—namely “by clear and convincing evidence”—but that it applied that same standard to her as well. But because Mother was not entitled to the parental presumption, the question becomes what standard of proof the juvenile court should have applied to Mother’s petition to modify or restore custody.

¶43 Mother’s petition to modify or restore custody was considered along with Grandparents’ petition for custody. The juvenile court recognized that modifications to custodial orders are generally “treated as disposition hearings and subject to the preponderance of the evidence standard.” However, because DCFS was no longer a party to this case at this point, the juvenile court determined that it was “more similar to a custody dispute between a parent and non-parent.” And given this circumstance, the court concluded that the dispute “should proceed at the clear and convincing standard of proof for all parties.”

¶44 It appears that the juvenile court applied the wrong standard of proof to Mother’s petition to modify or restore custody. Modifications of an interim order, which was the procedural situation here, are governed by rule 47 of the Utah Rules of Juvenile Procedure. See Utah R. Juv. P. 47(b)(2)–(3), (c) (providing the process for modification of prior dispositional orders). And the burden of proof employed in imposing “any of the dispositional choices” available to the juvenile court, In re M.J., 2011 UT App 398, ¶ 56, is the preponderance of the evidence standard, cf. Utah R. Juv. P. 41(c) (“[M]atters regarding child custody, support, and visitation certified by the district court to the juvenile court must be proved by a preponderance of the evidence . . . .”).

¶45 While Mother may be right that the clear and convincing standard should not have been applied to her petition to modify, she has made no showing that an application of the correct standard of proof—preponderance of the evidence—would have resulted in a better outcome. Thus, any error of the juvenile court as to the standard of proof has not been shown to have prejudiced Mother. Cf. In re L.B., 2015 UT App 21, ¶ 6, 343 P.3d 332 (per curiam) (“Harmless error is an error that is sufficiently inconsequential that there is no reasonable likelihood that it affected the outcome of the proceedings.” (cleaned up)); accord In re A.M., 2009 UT App 118, ¶ 21, 208 P.3d 1058.

¶46 First, Mother makes no showing that Grandparents failed to demonstrate that it was in the Children’s best interest to award them permanent custody and guardianship. Thus, the application of the wrong standard of proof—which was more rigorous in any case—was largely irrelevant to Grandparents’ ability to prove their case.

¶47 Moreover, the juvenile court entered extensive factual findings. Based on these findings, the court concluded that Mother had “not changed her circumstances,” making it unnecessary to conduct an examination of the Children’s best interests with regard to Mother’s petition to modify custody. Such an examination was unnecessary because a change of circumstance is necessary to restore custody to a parent whose legal custody has been transferred by the juvenile court. See Utah Code § 78A-6-357(3)(b) (“A parent or guardian may only petition the juvenile court [for restoration of custody] on the ground that a change of circumstances has occurred that requires modification or revocation in the best interest of the child or the public.”). Mother has not challenged the court’s finding that she has not changed her circumstances. Nor has she made any attempt to show how the court’s application of a less rigorous burden of proof would have made a difference in its determination that a consideration of the Children’s best interests was unnecessary given the lack of the change in circumstances.

¶48 Because Mother has not demonstrated how this alleged error regarding the increased burden of proof prejudiced her, this claim fails.

CONCLUSION

¶49 Mother’s challenge to the jurisdiction of the Utah juvenile court fails because the court’s jurisdiction commenced with the filing of the PSS petition, which resulted in limitations on Father’s parent-time and the continued jurisdiction of the juvenile court. Mother’s claim that the juvenile court violated the ICPC fails because she voluntarily sent the Children to live with Grandparents. Mother’s ineffective assistance claim falls short for lack of deficient performance. And the parental presumption was unavailable to Mother owing to the juvenile court’s jurisdiction over the Children, so Mother has not demonstrated prejudice on her burden-of-proof claim.

¶50      Affirmed.

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


[1] We limit our discussion to “those background facts necessary to resolve the issues on appeal.” Blosch v. Natixis Real Estate Cap., Inc., 2013 UT App 214, ¶ 2 n.2, 311 P.3d 1042 (cleaned up). And we recite the evidence in a light most favorable to the juvenile court’s findings. See In re adoption of B.H., 2020 UT 64, n.2, 474 P.3d 981.

[2] While courts and practitioners frequently refer to a petition for protective supervision services, see, e.g., In re M.J., 2011 UT App 398, ¶ 2, 266 P.3d 850; In re T.M., 2003 UT App 191, ¶ 2, 73 P.3d 959, the term does not formally exist in the juvenile code. Instead, Utah Code section 80-3-201(1) states that “any interested person may file an abuse, neglect, or dependency petition.” The PSS petition filed by DCFS in this case referenced section 78A-6-304, which has since been renumbered and amended as section 80-3201. See Act of Mar. 3, 2021, ch. 261, § 64, 2021 Utah Laws 1752, 1799–800.

[3] The court found that while Father had met the burden of proof showing a change in circumstances, a change of custody was nevertheless in the best interest of the Children.

[4] A custody determination is implicit in a petition asking a juvenile court for a finding of abuse, which is precisely what DCFS presented here. The statute does not require a talismanic invocation of the words “custody” or “parent-time,” because it is presumed that once a finding of abuse is reached, custody or parent-time will naturally be addressed. Indeed, section 80-3-405 states that the “juvenile court may vest custody of an abused, neglected, or dependent minor in [DCFS] or any other appropriate person.” See Utah Code § 80-3-405(1)–(2).

Moreover, that DCFS did not mention “custody” or “parent-time” in the PSS petition did not deprive the juvenile court of jurisdiction, because the petition is not where the issue (continued…) must arise for a proceeding to become a “[c]hild custody proceeding.” See id. § 78B-13-102(4). The statute merely says that a child custody proceeding “includes a proceeding for,” among other things, “neglect, abuse, dependency,” or “protection from domestic violence, in which the issue” of “legal custody, physical custody, or parent-time with respect to a child . . . . may appear.”

Id.

[5] Grandparents argue that this challenge is unpreserved, an assertion that has some merit. However, “if the merits of a claim can easily be resolved in favor of the party asserting that the claim was not preserved, we readily may opt to do so without addressing preservation.” State v. Kitches, 2021 UT App 24, ¶ 28, 484 P.3d 415 (cleaned up). “[B]ecause we can easily dispose of” Mother’s ICPC claim on its “merits, we choose to exercise our prerogative to simply assume that [it was] preserved and proceed to consideration of the merits.” Id.

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In re R.G. – 2023 UT App 144 THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF R.G., A PERSON UNDER EIGHTEEN YEARS OF AGE.

G.G.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20220635-CA

Filed November 24, 2023

Second District Juvenile Court, Ogden Department

The Honorable Tasha Williams

No. 1183589

Keith Andrew Fitzgerald, Attorney for Appellant

Sean D. Reyes and John M. Peterson,

Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES JOHN D. LUTHY and AMY J. OLIVER concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 G.G. (Father) appeals the juvenile court’s order terminating his parental rights to R.G. (Child). Father argues the juvenile court erred in finding that termination of his parental rights was strictly necessary, because placement of Child with Father’s sister in another state was an option. Because Father has not persuaded us that the court committed reversible error, we affirm its order terminating Father’s parental rights.

BACKGROUND[1]

¶2        Child was born in January 2020. The following day, the Division of Child and Family Services (DCFS) received a referral indicating that Child’s mother (Mother)[2] had tested positive for illegal substances both at the time of Child’s birth and during her pregnancy. Thereafter, a DCFS caseworker put a safety plan in place and Child was allowed to leave the hospital and return home with Father and Mother.

¶3        Almost exactly one month later, the juvenile court held a pretrial shelter hearing, which Father did not attend. Following the hearing, the court entered an order removing Child from Father’s and Mother’s custody and placing Child in the temporary custody of DCFS. That same day, a DCFS caseworker (Caseworker) held a kinship meeting to discuss placement options for Child. Despite being informed of the meeting, neither Father nor Mother chose to attend. Nevertheless, Caseworker identified an in-state kinship placement with a foster family (Foster Family) that had previously adopted two of Child’s biological half-siblings.

¶4        A verified petition for custody and legal guardianship was filed one day after the shelter hearing. A few days later, Mother told Caseworker that she wanted Child to be placed with Father’s sister (Aunt), who lived in Georgia. Father made the same request.

¶5        In March 2020, Father attended a pretrial hearing on the verified petition. Based on Father’s admissions to the allegations in the petition, the juvenile court adjudicated Child neglected as to Father.[3] Child was placed in DCFS’s custody, and the court set Child’s permanency goal as reunification with a concurrent goal of adoption. The court ordered that reunification services be provided to Father and that Father comply with a child and family plan.

¶6        In May 2020, Caseworker contacted Aunt to begin the placement process provided by the Interstate Compact on the Placement of Children (the ICPC).[4] Caseworker explained that the next step was to fill out paperwork to send to the Utah state office. She noted that the time required to complete the paperwork would depend on how soon she could obtain the necessary documents, including Child’s social security card and birth certificate. Because Caseworker did not have those documents for Child on file, she requested them from the parents and from the social security office.

¶7        For the remainder of 2020, the juvenile court held periodic review hearings as required by statute. At the first hearing in June,

the court ordered DCFS “to move forward with the ICPC.” At a hearing in August, the State informed the court that “the ICPC has been put on hold due to [DCFS] not having a social security number, or birth certificate for [Child].”

¶8        After multiple failed attempts to obtain Child’s social security card and birth certificate from the parents, Caseworker was finally able to obtain the documents from the social security office, which had taken several extra months due to closures related to the COVID-19 pandemic. On November 6, 2020, DCFS informed the juvenile court that it had completed its portion of the ICPC paperwork and asked the court to send the paperwork to Georgia so that the Georgia state office could complete its part. The juvenile court signed the order on November 10.

¶9        Reunification services to Father were terminated in February 2021 due to Father’s noncompliance with the child and family plan. In June, the State filed a petition to terminate Father’s parental rights.

¶10 In September 2021, the juvenile court held a pretrial hearing on the termination petition, during which the status of the ICPC was discussed. Father’s counsel indicated that Aunt had “completed and submitted” to Georgia all the required paperwork. However, DCFS reported that Caseworker had contacted the Georgia state office regarding the ICPC but there had been no information provided as to its status. Father then addressed the court. He explained that Aunt notified him that morning that she had completed the ICPC paperwork. Father also informed the court that he was willing to relinquish his rights to Child if Aunt could adopt her, and he reminded the court that his desire “from the get-go” had been to place Child with Aunt. Based in part on the unresolved questions related to the status of the ICPC, the court scheduled a second pretrial hearing to take place in October.

¶11      At the October pretrial hearing, the State reported the status of the ICPC:

[DCFS] was able to get an update from the state of Georgia and that update was filed with the Court. It does show that there were some additional documents that need to be turned in. There was a deadline of July 30th for those to be submitted and as of the date of the report which is dated September 13th, they have not been turned in. I don’t think we have anything more current than that as far as what’s happening with the ICPC but it appears that is stalled until the family turns in the necessary documents.

In response to this update, Aunt told the court that she had submitted the completed ICPC paperwork, completed a required class, and was currently participating in a home study. After discussing the status of the ICPC, the parties discussed its relevance. The guardian ad litem (the GAL) and the State indicated that the ICPC was a “backup plan” because Child was in a kinship placement with Foster Family and had been there for a “long” time. Mother and Father disagreed with this assessment. Counsel for both parents stated that the original reason for requesting the ICPC was to allow Aunt to be the primary placement. Following this discussion, the court concluded that regardless of Child’s placement goal, the parties were in “a holding pattern” and Child could not yet be placed with Aunt because “the home study hasn’t been approved” and the ICPC was therefore not complete.

¶12      Trial on the State’s petition to terminate parental rights began in November 2021. Despite having proper notice, Father failed to appear at the termination trial. Father’s counsel moved to be released due to this failure, and the juvenile court granted counsel’s motion. The trial then proceeded by proffer. At the close

of trial, the court entered an order terminating Father’s parental rights, which Father subsequently appealed. Thereafter, the State, the GAL, Father, and Mother filed a stipulated motion for summary reversal. This court granted the motion and accordingly vacated the termination order and remanded the matter for a new trial.

¶13 The second termination trial occurred over the course of three days in April 2022. The juvenile court heard testimony from Caseworker, Father, and Child’s foster parents (Foster Parents). Caseworker testified that at the beginning of the case, Father expressed interest in having Child placed with Aunt in Georgia. Caseworker explained that because Aunt lives out-of-state, DCFS cannot place Child with Aunt unless Aunt has an approved ICPC. Caseworker testified that she started the ICPC process in April 2020 and that she completed the ICPC paperwork and sent it to Georgia in November 2020. Caseworker stated that she would have been able to submit the paperwork sooner had Father provided Child’s social security card and birth certificate to her directly, but because he did not, Caseworker had to obtain the documents from the social security office, which had been closed due to the COVID-19 pandemic.

¶14 Caseworker testified that since submitting the ICPC paperwork, she had received “minimal updates” from Georgia— despite the fact that she had followed up “[a]bout every month” —and that she did not have any control over the Georgia state office. She explained that she did not contact Aunt directly during the ICPC process because the “proper channel” for all communication related to an ICPC is between the state offices; however, Caseworker testified that had Aunt contacted DCFS and requested visitation, DCFS “would have given it to her.” Caseworker noted that the most recent ICPC update from Georgia was given on February 3, 2022, which stated, “Home study is being written with an expected completion date of 2/14/2022. Will be sent for approval at that time.” At the time of trial, however,

Caseworker had not been informed whether the home study had been approved or not, nor had she received any kind of final report on the ICPC.

¶15      Lastly, Caseworker testified that under DCFS guidelines, Child was considered to be in a kinship placement because she was placed with Foster Family—the family that had adopted two of Child’s biological half-siblings. Caseworker also noted that DCFS has no “level of preference” for different kinship placements. Therefore, even if the approved ICPC had been received, DCFS had already satisfied its “internal standards” by placing Child with kin.

¶16 Regarding placement options, Father testified that although Child “is in good hands” with Foster Family, he wanted her to be placed with Aunt, a desire that he had expressed since the beginning of the case. Father acknowledged that Aunt has never met Child and that removing Child from Foster Family would be a “disruption.” However, Father blamed DCFS for the delay in the ICPC approval, claiming that Aunt had done “everything she possibly could.”

¶17 Foster Parents both testified about Child’s strong relationship with Foster Family. Child’s foster mother (Foster Mother) stated that Child is “almost inseparable” from her foster sibling and that Child and her biological half-siblings “have a great relationship.” Foster Parents expressed their desire to adopt Child, and Foster Mother explained that it would be “devastating” for the entire family, including Child, if Child were to be removed from their home.

¶18      In addition, Foster Mother testified that allowing Child to remain in contact with Father might not be in her best interest because “[t]here’s just a lot of anxiety that happens with [Child] after visits.” Specifically, Child “was having night terrors . . . when we were doing visits. She would wake up crying, but you couldn’t actually wake her up. She was just crying . . . .” Foster

Mother stated that the night terrors stopped when the visits with Father stopped.

¶19      Moreover, Father had a history of engaging in violent and threatening behavior. Specifically, Father threatened Caseworker when she canceled a visit after Father failed to check in, and from then on, DCFS was required to provide extra security during Father’s visits. Father also threatened Foster Parents and had been found looking up Foster Parents’ contact information. And Father admitted to committing violent acts against Mother on several occasions.

¶20 On June 28, 2022, approximately two months after the termination trial, the juvenile court entered a thirty-page order terminating Father’s parental rights to Child. The court found that DCFS made “reasonable efforts” in pursuing the ICPC, including that Caseworker had worked to obtain the necessary documentation and complete the ICPC paperwork as quickly as possible, that Caseworker followed up on the status of the ICPC “about every month,” that Georgia had provided “minimal updates” on the ICPC throughout the case, and that Father’s testimony that Aunt had completed the ICPC and was “cleared” was not credible. Further, the court found that it was in Child’s best interest to remain with Foster Family because Child had become “integrated” into Foster Family, because Child had developed strong bonds with her foster sibling and half-siblings, and because removing Child from her existing placement would be difficult. Moreover, the court found that Aunt “did not request contact with [Child] and has not met her.” Based on these findings, the court concluded that termination was strictly necessary to protect Child’s best interest. It explained:

[T]his Court must consider all the permanency options for [Child] and whether she can be equally protected and benefitted by an option other than termination. One option is for a placement with

[Aunt] in Georgia. However, at the time of trial the ICPC had not been approved, legally barring such placement. Further, at this point, the placement is not in [Child’s] best interest. [Child] has never met [Aunt] and [Aunt] has never requested visits with her. [Child] has no familial relationship with [Aunt]. . . . When viewed from [Child’s] point of view, as required by statute, termination is strictly necessary so that the loving family attachments she has made with [Foster Family] and her biological [half-siblings] can be preserved through adoption.

¶21      Father filed a notice of appeal of the juvenile court’s termination order on July 7, 2022. On July 18, the court held a post-termination review hearing. Because Father’s parental rights had been terminated, he did not attend the hearing; only the State, Caseworker, and the GAL were present. The parties discussed Child’s welfare as well as the status of the ICPC. Following the hearing, the court issued an order indicating that the ICPC had been approved but declining to alter Child’s placement. The court reasoned as follows:

[DCFS’s] court report indicates that [Child] continues to do well in the foster placement with her biological siblings. In June, 2022 [DCFS] received an approved ICPC from Georgia for [Aunt]. [Aunt] has never met [Child] and has no relationship with her. She never requested contact or updates during the case. It would not be appropriate or in [Child’s] best interest to change placements at this point in the case so [DCFS] sent a Case Closure Form to Georgia.

ISSUE AND STANDARDS OF REVIEW

¶22 Father appeals the juvenile court’s order terminating his parental rights to Child, arguing that the court erred in concluding it was strictly necessary to terminate his parental rights. “We review deferentially a lower court’s best-interest determination and will overturn it 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.”[5] In re J.J.W., 2022 UT App 116, ¶ 18, 520 P.3d 38 (quotation simplified)However, Father acknowledges that he did not raise this issue below, and he therefore asks us to review the court’s strictly necessary determination for plain error.[6] To succeed on a claim of plain error, Father must show that “(1) an error exists; (2) the error should have been obvious to the juvenile court; and (3) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome.” In re S.T., 2022 UT App 130, ¶ 14, 521 P.3d 887 (quotation simplified).

ANALYSIS

¶23      Father argues the juvenile court erred in determining that

it was strictly necessary to terminate his parental rights because the court did not adequately consider other feasible placement options for Child. Father’s challenge largely concerns the court’s consideration of the ICPC and whether Aunt was a feasible placement option. Because Father did not raise this issue below, to succeed on appeal he must show that a harmful error exists and that the error should have been obvious to the juvenile court. See In re J.A.L., 2022 UT 12, ¶ 12, 506 P.3d 606.

¶24 “Because the relationship between parent and child is constitutionally protected, a court may only terminate parental rights upon a finding that termination is strictly necessary to the best interest[] of the child.”[7] In re S.T., 2022 UT App 130, ¶ 33, 521 P.3d 887 (quotation simplified). Here, the juvenile court determined it was strictly necessary to terminate Father’s parental rights because there was no option available, short of termination and adoption, that would equally protect and benefit Child. In

 

making this determination, the court considered, among other options, permanent guardianship with Foster Parents and permanent guardianship with Aunt. Ultimately, the court decided against placement with Aunt for two reasons. First, Aunt was in Georgia, and “at the time of trial the ICPC had not been approved, legally barring such placement.” Second, placement with Aunt was not in Child’s best interest because Child “has never met [Aunt] and [Aunt] has never requested visits with her. [Child] has no familial relationship with [Aunt].”

¶25      Father assails the juvenile court’s reasoning on both points. As to the first, Father contends the ICPC was approved before termination was ordered and therefore it should have been adjudicated with the termination petition. And as to the second, Father contends the court’s analysis was inadequate and based on categorical concerns. For the reasons discussed below, his attack is unavailing.

¶26      First, Father mischaracterizes the record regarding the ICPC. Father asserts that the ICPC “was definitively completed before the written order of termination of parental rights [was] entered” but that the results were “concealed by DCFS until post-termination proceedings.”[8] But Father’s position on this point is undermined by his concession that “[n]one of the parties can conclusively state [when the ICPC was approved] because [DCFS] never presented this information.” Indeed, it is unclear from the record whether DCFS received the approved ICPC before or after the court entered its final order terminating Father’s parental rights. The only definitive information available in the record is that the termination trial was held in April 2022; the court entered its termination order on June 28; and on July 18, the court held a post-termination review hearing, during which DCFS reported that in June 2022 it had “received an approved ICPC from Georgia” for Aunt. Therefore, while the approved ICPC may have been received by DCFS while the matter was still under advisement by the court, Father has not demonstrated that this was absolutely the case.

¶27 Furthermore, regardless of whether the approved ICPC was presented to the juvenile court pre- or post-termination, on the facts of this case, Father cannot demonstrate that the court’s strictly necessary determination would have been any different had it received the ICPC earlier.[9] As an initial matter, it is undisputed that DCFS informed the court about the approved ICPC and the court considered the implications of that approval during a post-termination review hearing. Indeed, during the review hearing, the court stated that although the ICPC for Aunt had been approved, “[i]t would not be appropriate or in [Child’s] best interest to change placements at this point in the case.” The court reasoned that Child “continues to do well in the foster placement with her biological [half-]siblings,” whereas Aunt “has never met [Child] and has no relationship with her. [Aunt] never requested contact or updates during the case.” Because the court’s decision to not change Child’s placement post-termination rested at least in part on Aunt’s lack of engagement throughout the duration of the years-long case—including after the ICPC was approved—there is no indication that an earlier receipt of the approved ICPC would have had any bearing on the court’s reasoning. See In re G.D., 2021 UT 19, ¶ 81, 491 P.3d 867 (finding that a juvenile court’s strictly necessary analysis was not deficient where the court declined to “admit and consider the evidence [the appellants] presented after trial” because neither Utah law nor Utah caselaw “requires a juvenile court to consider supplemental evidence that merely elaborates on a factor the court already considered in its ‘strictly necessary’ analysis—especially when that evidence does not address or refute the considerations on which the court relied to reach its conclusion”).

¶28 Relatedly, Father glosses over the import of an approved ICPC. While an approved ICPC is a precursor to any out-of-state placement, an approved ICPC does not guarantee placement. After a child is removed from a parent’s custody, the juvenile court must “determine whether there is a relative . . . who is able and willing to care for the child.” Utah Code § 80-3-302(6)(a). If the court identifies an out-of-state relative as a potential placement, the court must comply with the procedures and requirements outlined in the ICPC before ordering that the child be placed in another state. See id. § 80-2-905. Following the approval of an ICPC, the court “shall give preferential consideration to a relative’s . . . request for placement of the child, if the placement is in the best interest of the child.” Id. § 80-3-302(7)(a)(i) (emphasis added). In other words, the plain language of the statute “does not guarantee that an identified relative . . . will receive custody of the child.” Id. § 80-3-302(18). Accordingly, the court was not required to place Child with Aunt if doing so was not in Child’s best interest. And as discussed below, the court’s best interest analysis was adequate to foreclose placement with Aunt.

¶29      Moreover, contrary to Father’s assertion, the juvenile court properly considered feasible placement options other than termination and adoption. As stated above, the court articulated two reasons in support of its strictly necessary determination. In addition to concluding that Aunt was legally barred as a placement option because the ICPC was still pending, the court found that placement with Aunt was not in Child’s best interest because Child “has never met [Aunt] and [Aunt] has never requested visits with her. [Child] has no familial relationship with [Aunt].” On the facts of this case, this determination was not erroneous.

¶30      Our legislature has expressed a strong preference for maintaining familial bonds. To that end, a court may terminate a parent’s rights only if termination is strictly necessary to promote a child’s best interest. Courts ordering termination “must start the best interest analysis from the legislatively mandated position that ‘[w]herever possible, family life should be strengthened and preserved.’” In re B.T.B., 2020 UT 60, ¶ 66, 472 P.3d 827 (quoting Utah Code § 80-4-104(12)(a)). However, once a parent is found to be unfit, a court may terminate the parent’s rights if doing so “is strictly necessary for the welfare and best interest of the child.” Id. ¶ 62. At this stage, the court must “consider the welfare and best interest of the child of paramount importance in determining whether termination of parental rights shall be ordered.” Utah Code § 80-4-104(12)(a).

¶31      In evaluating whether termination is strictly necessary, a juvenile court must consider, “among other relevant factors,” whether “the efforts to place the child with kin who have, or are willing to come forward to care for the child, were given due weight.” Id. § 80-4-104(12)(b)(ii). This requires the court to “explore whether other feasible options exist that could address

the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights.” In re B.T.B., 2020 UT 60, ¶ 67 (quotation simplified). This inquiry cannot be satisfied merely by relying on the “categorical concern” that adoption offers the highest degree of permanency.” In re J.A.L., 2022 UT 12, ¶ 25. Instead, the court must analyze the “particularized circumstances of the case” and explore whether an alternative arrangement “can equally protect and benefit the children in the case before it.” Id. (quotation simplified). And “when two placement options would equally benefit a child, the strictly necessary requirement operates as a preference for a placement option that does not necessitate termination over an option that does.” In re G.D., 2021 UT 19, ¶ 75.

¶32 Father contends the juvenile court erred in finding that termination was strictly necessary because the court ignored that Aunt “was the preferred placement” and instead relied on “categorial concerns” to support its determination. However, neither point is well taken, and the court’s rationale is sufficient to justify its decision to terminate Father’s parental rights.

¶33 Father asserts that Aunt “was the preferred placement” because “[t]his is a case where both placement options would equally benefit” Child and “placement with [Aunt] did not necessitate termination of parental rights.” This assertion is without merit. Our caselaw is clear that the preferential status afforded to a placement option that does not necessitate termination exists only where the two placement options “equally benefit” the child. See id. But here, there is no evidence to suggest that placement with Aunt would “equally benefit” Child.

¶34 Indeed, the juvenile court’s comprehensive termination order included multiple findings concerning Aunt. Specifically, the court found that Caseworker had contacted Aunt in May 2020 to start the ICPC process. Despite this contact, at the time of trial approximately two years later, Aunt had “not request[ed] contact

with [Child] and [had] not met her.” Although Aunt may have not been available as a placement option prior to approval of the ICPC, nothing was preventing her from contacting Child and forming a relationship with her. And given the duration of the proceedings, Aunt was given ample time to do so.

¶35      Conversely, the juvenile court found that Child was in an appropriate adoptive placement with Foster Family. Among other things, Child had been living with Foster Family since “shortly before she turned one month old,” and Child had developed strong bonds with her foster sibling and two half-siblings. Yet Father does not grapple with the import of these relationships. Notably, Child is in a kinship placement with Foster Family since Child’s biological half-siblings were adopted into Foster Family. Moreover, as this court has recently recognized, “the biological connection between siblings matters.” See In re A.H., 2022 UT App 114, ¶ 42, 518 P.3d 993 (“The importance of sibling relationships is well recognized by courts and social science scholars, because a sibling relationship can be an independent emotionally supporting factor for children in ways quite distinctive from other relationships, and there are benefits and experiences that a child reaps from a relationship with his or her brother(s) or sister(s) which truly cannot be derived from any other. Such bonds are often especially important to children who experience chaotic circumstances like abuse or neglect, because in such circumstances, they learn very early to depend on and cooperate with each other to cope with their common problems.” (quotation simplified)), cert. granted, 525 P.3d 1279 (Utah 2023). Given the court’s competing findings about each potential placement, we cannot say that placing Child with Aunt—an individual she has never met—would equally benefit Child where Child is already in a kinship placement with her half-siblings. As a result, Aunt was not a preferred placement.

¶36 Moreover, the juvenile court did not merely rely on categorical concerns when determining that termination was strictly necessary. On this point, Father contends the court’s decision was based on the categorical concern that removing a child from a foster family with whom the child is bonded will disrupt and negatively impact the child’s life. See id. ¶ 56. To be sure, the court’s determination hinged in large part on Child’s attachments to Foster Family, including to her two biological half-siblings, and the potential detriment to Child that would result from removal from that placement. However, the court’s conclusion was also based on the fact that Aunt’s relationship with Child was nonexistent and that placing Child with Aunt would therefore be particularly destabilizing. Consideration of the effects of a potential disruption, when based on case-specific facts, is entirely proper. Indeed, courts are statutorily required to consider continuity of care when determining whether to terminate parental rights. See Utah Code § 80-4-303(1)(a) (requiring courts to consider “the physical, mental, or emotional condition and needs of the child”); id. § 80-4-304(5) (requiring courts to consider “the length of time the child has lived in a stable, satisfactory foster home and the desirability of the child continuing to live in that environment”). And this court has recently recognized as much, noting that the potential effect of changing a placement is “a legitimate concern, and one that courts should take into account.” In re A.H., 2022 UT App 114, ¶ 56. In sum, the court’s determination here was not based on a categorical concern inasmuch as the court considered case-specific facts such as the impact of the potential disruption in light of Child’s nonexistent relationship with Aunt.

¶37 Finally, and very importantly, even if Father is correct in his assertion that the ICPC was completed before the termination trial, the ICPC approval and resulting potential for placement with Aunt was not the lynchpin of the juvenile court’s strictly necessary determination. As discussed above, placement with Aunt was not in the best interest of Child because of the shortcomings in that option as identified by the court. And a permanent guardianship with Foster Parents put in place to preserve Father’s residual parental rights and ensure Child’s connection to her half-siblings was also not in Child’s best interest as the court identified significant problems with Father’s continued parental connection to Child vis-à-vis Foster Family. Specifically, the court found that Child had “already experienced anxiety and night terrors during visits” with Father and that Father’s “threats toward [Foster Family] and his propensity for violence puts [Child and Foster Family] at risk.”

CONCLUSION

¶38 Father has not shown the juvenile court clearly erred in determining that it was strictly necessary to terminate his parental rights. Regardless of when the court received the approved ICPC, it adequately considered the results. Further, an approved ICPC does not guarantee placement, and Father has not demonstrated that the court plainly erred when considering other feasible placement options. Accordingly, we affirm the court’s order terminating Father’s parental rights.

 

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

 

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John v. John – 2023 UT App 103

John v. John – 2023 UT App 103

THE UTAH COURT OF APPEALS

LUCAS ALLEN JOHN,

Appellee,

v.

CASSANDRA KATHLEEN JOHN,

Appellant.

Opinion

No. 20210506-CA

Filed September 14, 2023

Third District Court, Salt Lake Department

The Honorable Su Chon

Commission Joanna Sagers

No. 164904953

Benjamin K. Lusty, Attorney for Appellant Mary Deiss Brown, Attorney for Appellee

JUDGE JOHN D. LUTHY authored this Opinion, in which

JUDGES GREGORY K. ORME and RYAN D. TENNEY concurred.

LUTHY, Judge:

¶1        In Lucas Allen and Cassandra Kathleen John’s divorce decree, the district court gave Lucas[1] sole legal and physical custody of the parties’ daughter, Child. The decree gave Cassandra once-a-week virtual parent-time and in-person parent-time as often “as the parties agree, or as recommended by the reunification therapist.” The court ordered that Cassandra’s virtual parent-time “not be . . . monitored” but that her in-person parent-time be “subject to line-of-sight supervision.” The court then outlined a “reunification” plan, with the goal of Cassandra’s eventual transition to unsupervised parent-time with Child.

¶2        Cassandra contends that the district court erred by ordering supervised in-person parent-time without making the statutorily required finding of “evidence that [Child] would be subject to physical or emotional harm or child abuse . . . from [Cassandra] if left unsupervised with [her].” Utah Code § 30-3-34.5(1).[2] Cassandra also forwards multiple arguments in support of the assertion that the court erred by failing to provide, as required by statute, “specific goals and expectations” for her to meet “before unsupervised parent-time may be granted.” Id. § 30-3-34.5(5). We conclude that the district court made an adequate finding of evidence that Child would be subject to physical or emotional harm from Cassandra if left unsupervised with her, and we conclude that each of Cassandra’s arguments regarding specific goals and expectations is either mistaken or unpreserved. We therefore affirm.

BACKGROUND

¶3        Lucas and Cassandra married in March 2014. Child was born in September of that year. Cassandra had “engaged in drug use over the years,” and “even though [Cassandra] was a stay-at-home mom,” Lucas “hired a baby-sitter to take care of [Child] . . . because of [Cassandra’s] drug use” and because “he feared for [Child’s] safety.”

¶4        Soon after Child was born, Cassandra became pregnant with the parties’ second child. When the second child was born, the baby “had substances in her system,” “indicat[ing] that [Cassandra had been] engaging in activities that were potentially harmful to the . . . child.” This child died shortly after her birth.[3]

¶5        The parties separated around May 2016, and Cassandra moved in with her boyfriend later that year. In August 2016, Lucas petitioned for divorce. The next month, he moved for temporary orders to grant him sole legal and physical custody of Child. He also requested that Cassandra’s visitation time with Child be supervised and that Cassandra be ordered to submit to drug testing.

¶6        Around this time, Lucas and Cassandra were together “at a local restaurant” when Cassandra “took [Child], put her in the front seat of [a] truck without any car seat or any appropriate child restraints and then drove off,” hitting Lucas with the truck in the process. A temporary protective order was entered against Cassandra because she had attempted to run Lucas over with her truck and abscond with Child. A hearing on the protective order was held in October 2016, at which the commissioner recommended dismissal of the protective order,[4] entry of a mutual restraining order, and the granting to Cassandra of “unsupervised parent time . . . with no overnights.”

¶7        On December 8, 2016, a hearing was held on Lucas’s Motion for Temporary Orders. Following the hearing, the court entered mutual restraining and no-contact orders against the parties, awarded Lucas temporary sole legal and physical custody of Child, and directed Cassandra to “submit to a hair follicle [drug] test before 5:00 p.m.” that day. The court gave Cassandra parent-time “with . . . no overnights” and provisionally ordered that it be “facilitated” by a particular family friend. The court further instructed that if Cassandra’s drug test came back positive, Lucas’s attorney was to “call the court to schedule a telephone conference to determine the status moving forward.”

¶8        Cassandra’s hair follicle drug test came back positive for both cocaine and marijuana, and another hearing was held on December 20, 2016. Following that hearing, the court ordered that Cassandra’s parent-time be subject to line-of-sight supervision and that Cassandra complete another drug test by January 9, 2017.

¶9        On January 9, 2017, Cassandra submitted an “unofficial” drug test showing negative results for a collection taken that day. At a review hearing on January 30, 2017, however, the commissioner was “concern[ed]” because the results of the January 9 unofficial test were “drastically different” than the results of the test on December 8, 2016. The commissioner therefore directed Cassandra to complete another drug test that day. The commissioner also ordered “continue[d] . . . supervised parent time, status quo,” and set a review hearing for February 13, 2017.

¶10 Cassandra’s drug test on January 30, 2017, came back positive for marijuana, and following the February 13 review hearing, the court ordered “expanded supervised parent-time” with “no overnight visits.” It also ordered Cassandra to submit to a urinalysis by March 8, 2017, and it set another review hearing for March 13, 2017.

¶11 Cassandra took the required test before the March 13 review hearing, but she failed to submit the results. Her counsel (Counsel) nevertheless proffered at the hearing that the test had come back “positive for THC.” The court ordered that Cassandra’s parent-time remain subject to “direct line-of-sight” supervision “with no overnight visits.”

¶12 “At some point”—likely during April 2017—Cassandra “moved to Idaho for several months.” After a “stint in Louisiana,” she then moved to Iowa and lived there with a boyfriend. Once she had left Utah, Cassandra did not request any review hearings or make any attempt to exercise in-person parent-time with Child. As a result, she was “around [Child] physically on [only] three occasions” between January 2017 and June 2021.

¶13      Eventually, in March 2021, after compromise negotiations proved only minimally successful, the court held a bench trial on the parties’ outstanding issues. At the time of trial, Child was six years old.

¶14      Following trial, the court held a hearing to orally announce its rulings. To Cassandra’s credit, the court found that she was “trying to make some changes in her life,” including engaging in “therapy to resolve anger, trauma, and substance abuse” issues, and that she “appear[ed] to be improving.” But the court found that Cassandra still “lack[ed] . . . maturity in her decision-making processes,” “consider[ed] her own needs first and primary over [Child]’s,” and might not be “completely emotionally stable.” The court also found that Cassandra had engaged in “instances of violence” in the past (including the one that led to the temporary protective order noted above). And it found that Cassandra’s failures to “give[] first priority to [Child]’s welfare” were due to her “history with drug abuse.” Based on the foregoing findings, the court awarded Lucas sole legal and physical custody of Child.

¶15 The court then granted Cassandra supervised in-person parent-time at a frequency to be determined by a therapist and unsupervised virtual parent-time at least once per week. The court said that it thought there ought to be “some sort of ramping up” of supervised in-person visits and that a therapist should “come up with a schedule” for those visits after talking with Child, Cassandra, and Lucas to “see what’s appropriate.” The court further explained, “I expect that the therapist will come up with so many overnights so that [Cassandra] can practice with all of those things, and then once she’s completed the therapist’s plan, then I would say that the standard relocation statute would then become effective.” Counsel then asked whether “at that point”—i.e., when Cassandra had completed the therapist’s plan—“supervision would no longer be required.” The court responded, “I don’t know, Counsel,” “because there’s . . . some ongoing drug issues . . . and we don’t have any evidence . . . that she would have clean tests.”

¶16      Counsel then asked if the court was going to make findings as to whether Child “would be in danger if she were with [Cassandra unsupervised].” In response, the court said:

[G]iven that [Cassandra]’s not complied with the Court orders, it’s not clear to me whether or not she’s a danger to [Child] still. She hasn’t completed the drug tests, et cetera, so given her noncompliance with the Court’s prior temporary orders, she potentially could still be a danger; but given also that she hasn’t been around [Child] physically except for three times, I just think that’s problematic.[5]

¶17      Counsel then said, “So . . . [a]fter two things occur, if I understand correctly, then [Cassandra]’s parent time will be according to [section] 30-3-37 and unsupervised.” He listed “one, the completion of the ramp up period as recommended by the therapist; and two, . . . submitting to the Court a clean drug test.” He asked, “Is that accurate?” The court responded that it could not “say that [Cassandra]’s going to go immediately to unsupervised [visitation] after the ramp up” because the court might “need some more information at that point.”

¶18 Counsel then informed the court, “My understanding, your Honor, is that the Court needs to provide specific criteria that [Cassandra] needs to meet . . . in order to have supervision dismissed.” The court replied, “I . . . don’t know what the therapist is going to say, Counsel. So I think it’s a little bit speculative. . . . What I’m going to have to see is what the therapist recommends, and then I can give you some further instructions at that point.” It added, “But yes, we do need her to have clean drug tests . . . .” Then the court, Counsel, and Lucas’s attorney discussed what the drug test requirements would be.

¶19      Counsel later asked, “Your Honor, what would be the time line and/or process for setting up what sounds like is a . . . review hearing on how we are going to . . . establish the criteria for having supervision lifted?” The court asked Lucas’s attorney if she “want[ed] to respond,” saying, “[Counsel] wants criteria on how to remove supervision.” Lucas’s attorney explained that she did not think there was “enough information . . . to anticipate . . . the factors that [the court was] going to have to consider” and that it seemed reasonable to “notice up a hearing after [the parties got] a lot of these things going[] and have enough information to go ahead.” But the court indicated that it was “not going to notice up a hearing at [that] point.” It directed the parties to “get the therapist on board first, and . . . to do that within three weeks,” then to get “the drug test filed.” The court said, “[A]fter I’ve reviewed these things[,] . . . I’d like to make sure that Cassandra is complying with everything, and that she’s able to do what she needs to do.” It further stated, “So I would like to do that as quickly as possible, [Counsel], but I don’t know how long of a period it’s going to take because it will also depend on whether or not your client is able to do everything that’s required. I hope that she does.”

¶20      Counsel then, again, stated his interpretation of the process the court was explaining:

[I]t sounds like . . . you’re saying that there’s a two-step process. That we won’t be able to arrive at the criteria for . . . when supervision will be lifted until [Cassandra] has complied with everything the therapist has said and filed clean drug tests. Then we can come back to have a hearing to determine what the criteria are for supervision to be lifted; is that accurate?

¶21 At that point, the court turned to Lucas’s attorney and asked whether she “[had] any objection” to the process Counsel had just summarized or whether she thought that supervision “should be lifted” as soon as Cassandra “completes the criteria” the court had already identified. She said that she thought “there might be concerns” even after Cassandra completes reunification therapy, although she did not “know what they would be.” The court then said, “Let’s just get through the therapy portion, and then I want to see what the reports are. . . . It could be likely that if she’s successful with all of th[e] things [the therapist recommends] that the Court will lift supervision at that time.”

¶22      Counsel once again spoke, seeking “to clarify” certain matters by asking, “[I]f after [Cassandra] has met with the therapist and complied with the therapist, the therapist recommends that supervision be lifted, . . . then would the Court accept that recommendation . . . or do we still need to meet to determine criteria for if and how supervision would be lifted?” The court replied that it “[did not] know the answer to that yet,” saying, “[B]ut let’s go through that, and if the therapist recommends it, if we need to have a discussion with the therapist present, then we might need to do that, okay? Because I might . . . have some questions.”

¶23      Counsel then asked the court to order that the therapist be an Association for Family and Conciliation Courts therapist, and the court agreed. Then the court said, “If there’s no other questions, I do need to get to my next hearing.” Counsel initially replied that he had “[n]o other questions” but then said, “Last question, your Honor. . . . [I]s the review hearing going to be . . . before you or the Commissioner?” The court answered that the review hearing would be before the court.

¶24      The court concluded the hearing and memorialized its oral rulings into written Findings of Fact and Conclusions of Law and a Decree of Divorce. Cassandra appeals.

ISSUES AND STANDARDS OF REVIEW

¶25      On appeal, Cassandra contends that the district court erred in two ways when it ordered supervised parent-time. First, she argues that the order of supervised parent-time was legally inappropriate under Utah Code section 30-3-34.5(1) because the court “did not find that Cassandra poses a present threat of harm” to Child. Second, she argues that the order of supervised parent-time was legally inappropriate under Utah Code section 30-3-34.5(5) because the court did not “provide specific goals and expectations for Cassandra to meet” in order to be granted unsupervised parent-time. “We generally will not disturb the district court’s parent-time determination absent a showing that the court has abused its discretion. However, we review the district court’s interpretation of a statute for correctness. Likewise, we review the legal adequacy of findings of fact for correctness as a question of law.” Lay v. Lay, 2018 UT App 137, ¶ 4, 427 P.3d 1221 (cleaned up).

ANALYSIS

  1. Adequacy of the District Court’s Findings in Support of
    Supervised Parent-Time

¶26      Cassandra argues that the district court erred in ordering supervised parent-time because it did not make the finding that the Utah Code mandates as a prerequisite to supervised parent-time. The pertinent portion of the relevant provision reads as follows:

When necessary to protect a child and no less restrictive means is reasonably available . . . , a court may order supervised parent-time if the court finds evidence that the child would be subject to physical or emotional harm or child abuse, as described in Sections 76-5-109, 76-5-109.2, 76-5-109.3, and 76-5­114, from the noncustodial parent if left unsupervised with the noncustodial parent.

Utah Code § 30-3-34.5(1).

¶27 As an initial matter, we agree with Cassandra’s assertion that this statute means that the court must find a current risk of harm to the child from unsupervised parent-time, “rather than merely [a] past or historic risk of harm.” (Emphasis added.) To require “evidence that the child would be subject to . . . harm or . . . abuse . . . if left unsupervised with the noncustodial parent,” id. (emphasis added), is to require evidence of harm or abuse during a potential situation that would occur, if at all, in the future.[6] Thus, before ordering supervised parent-time, a court must find that there is evidence that harm or abuse could occur in the future, not merely that harm or abuse, or a risk of harm or abuse, occurred or was present in the past.

¶28      That is not to say that the existence of harm, or a risk of harm, from a noncustodial parent in the past has no bearing on whether there is a risk of harm from that parent in the future. Evidence that harmful or potentially harmful circumstances from the past have recurred or have not substantially abated could certainly be probative of whether there is a risk of harm in the future.

¶29      Moreover, a court need not find that the child definitely would be subjected to harm or abuse if left unsupervised with the noncustodial parent. Rather, a court is required to find only “evidence that the child would be subject to . . . harm or . . . abuse” if left alone with the noncustodial parent. Id. (emphasis added). For this reason, we, like Cassandra, conclude that a finding of a presently existing threat or risk of harm or abuse is sufficient to support supervised parent-time under section 30-3-34.5(1).

¶30      However, we disagree with Cassandra that “the district court did not find that [she] presently poses a threat of harm to [Child] if she were [to be left] unsupervised with [Child].”

¶31      Cassandra’s argument here is a challenge to the adequacy of the district court’s findings, not to the sufficiency of the evidence.[7] When we assess the adequacy of findings, “we review the [trial court’s] written and oral findings of fact together to determine if they are [adequate] to support the trial court’s rulings.” Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 17, 176 P.3d 476. See generally Utah R. Civ. P. 52(a)(1) (“The findings . . . may be stated in writing or orally following the close of the evidence.”). This is particularly true when “the written findings are incomplete, inadequate, or ambiguous.” Bill Nay & Sons Excavating v. Neeley Constr. Co., 677 P.2d 1120, 1121 (Utah 1984). In those instances, the written findings “may be elaborated [on] or interpreted (in respects not inconsistent therewith) by reference to the trial court’s . . . oral explanation of the decision.” Id. This is one of those instances.

¶32      Cassandra supports her argument that the court failed to make the requisite finding by pointing to only one statement from the district court’s written findings: “[I]t is not clear whether [Cassandra] is still a danger to [Child].” But the court orally supplied additional findings and reasoning. When asked if it was going to make findings as to whether “[Child] would be in danger if she were with [Cassandra],” the court replied, “[G]iven that [Cassandra has] not complied with the Court orders, it’s not clear to me whether or not she’s a danger to [Child] still. She hasn’t completed the drug tests, et cetera, so given her noncompliance with the Court’s prior temporary orders, she potentially could still be a danger . . . .” (Emphasis added.) The court then added that it also found it “problematic” that Cassandra “[had]n’t been around [Child] physically except for three times” during the preceding four-plus years. Because Counsel, in posing the question, employed the phrase “[Child] would be in danger if she were with [Cassandra]” to summarize the requirement of a current threat of harm or abuse, we take the court’s responsive statement that Cassandra “potentially could still be a danger” to Child to be a finding of a current threat of physical or emotional harm to Child if Child were to be left unsupervised with Cassandra.[8]

¶3        Our reading of the court’s answer to Counsel’s question is bolstered by the fact that it came on the heels of additional findings that Cassandra still “lack[ed] . . . maturity in her decision-making processes,” that Cassandra still “consider[ed] her own needs first and primary over [Child]’s,” that Cassandra still might not be “completely emotionally stable,” and that Cassandra’s failures to “give[] first priority to [Child]’s welfare” were linked to her “history with drug abuse.” When the court’s response to Counsel’s question is viewed in the context of these and other findings, its import is unmistakable: Cassandra has a history of drug abuse, which, without objection, merited supervised parent-time in the past; since supervised parent-time was instituted, Cassandra has failed to provide a negative drug test; six-year-old Child has been in Cassandra’s physical presence only three times over the course of four-plus years; and Cassandra remains immature, potentially emotionally unstable, and self-centered in relation to Child; accordingly, Cassandra “potentially could still be a danger” to Child in the present. This finding is adequate to support the court’s order of supervised parent-time.[9]

  1. The District Court’s Provision of Specific Goals and Expectations to Discontinue Supervised Parent-Time

¶34 When a court orders supervised parent-time, it must “provide specific goals and expectations for the noncustodial parent to accomplish before unsupervised parent-time may be granted.” Utah Code § 30-3-34.5(5). Cassandra’s initial brief on appeal states at least two, and perhaps three, independent arguments to support her assertion that the district court did not comply with section 30-3-34.5(5). We disagree with her first argument, and we conclude that her second possible argument and her third argument are unpreserved.

¶35      Cassandra’s first argument regarding the district court’s compliance with section 30-3-34.5(5) is that the court’s orders “are silent on the question of what conditions Cassandra must meet prior to [the] lifting of supervised parent time” and that, because of this purported silence, “the district court erred.” Cassandra is mistaken, however.

¶36      After Counsel informed the court of his understanding that the court “need[ed] to provide specific criteria that [Cassandra] needs to meet . . . in order to have supervision dismissed,” the court said that it “need[ed] her to have clean drug tests” and also directed the parties to “get [a] therapist on board . . . within three weeks.” Moreover, Cassandra acknowledges that the court ordered her to complete reunification therapy. The court repeated these requirements multiple times. Plainly, the court provided three specific goals or expectations for Cassandra to meet before unsupervised parent-time would be granted: (1) Cassandra needed to provide clean drug tests in connection with her supervised visitation; (2) Cassandra needed to work with Lucas to identify a therapist within three weeks; and (3) Cassandra needed to complete reunification therapy as determined by the therapist. Thus, Cassandra’s first argument fails.

¶37      Next, Cassandra asserts that the district court did not comply with Utah Code section 30-3-34.5(5) because the court did not say that “completion of reunification therapy . . . [was] a condition precedent to lifting supervised parent time.”[10] What Cassandra means by this assertion is not clear. If what she means is that completion of reunification therapy is not a condition the court expected her to meet before supervision would be lifted, this is merely a restatement of Cassandra’s first argument and Cassandra is simply mistaken, as we have explained. On the other hand, if what she means is that to comply with section 30-3-34.5(5), a court must identify at the time it orders supervised parent-time comprehensive list of the things the parent must do to receive a guarantee that supervision will be lifted, she did not preserve this potential issue for our review.

¶38      “In order to preserve an issue for appeal,” the appellant must have “presented [it] to the trial court in such a way that the trial court ha[d] an opportunity to rule on that issue.” 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (cleaned up). “For a trial court to be afforded an opportunity to correct [an asserted] error (1) the issue must be raised in a timely fashion, (2) the issue must be specifically raised, and (3) the challenging party must introduce supporting evidence or relevant legal authority.” Id. (cleaned up). As to the second of these requirements, “an objection must at least be raised to a level of consciousness such that the trial court can consider it.” State v. Cruz, 2005 UT 45, ¶ 33, 122 P.3d 543 (cleaned up).

¶39      Here, Counsel indicated to the district court that his “understanding” was “that the Court needs to provide specific criteria that [Cassandra] needs to meet . . . in order to have supervision dismissed.” The court then identified or reiterated three specific criteria for Cassandra to meet, as we have explained. Counsel then repeated, over the course of a lengthy discussion, essentially the same question three times. First, he asked, “[W]hat would be the time line and/or process for setting up what sounds like is a . . . review hearing on how we are going to . . . establish the criteria for having supervision lifted?” The second time he described “a two-step process” in which the parties “won’t be able to arrive at the criteria for” lifting supervision “until [Cassandra] has complied with everything the therapist has said and filed clean drug tests” and they then “come back to have a hearing to determine what the criteria are for supervision to be lifted.” He asked the court, “[I]s that accurate?” Finally, “to clarify,” he asked a third time whether—“after [Cassandra] has met with the therapist and complied with the therapist”—if “the therapist recommends that supervision be lifted, . . . would the Court accept that recommendation . . . or do we still need to meet to determine criteria for if and how supervision would be lifted?” Each of these questions came after the court had iterated or reiterated specific initial expectations for Cassandra to meet to have supervision lifted. In that context, each of Counsel’s foregoing questions can be fairly understood as an attempt to clarify when or whether additional expectations would be set, not as an objection to the fact that the court had not identified a comprehensive set of expectations at the outset.

¶40      Indeed, after the second of the foregoing questions from Counsel, the court turned to Lucas’s attorney and asked if she objected to the process Counsel had just summarized. This clearly indicates that the court did not understand Counsel’s question to be an objection but rather an attempt at clarification. Thereafter, Counsel emphasized the notion that he was attempting to gain clarity rather than objecting when he explicitly prefaced the third of his questions by stating that he was seeking “to clarify.” Then, after the court reiterated for the third time its initial expectation— for Cassandra to “go through” therapy—it said, “If there’s no other questions, I do need to get to my next hearing.” Cassandra’s counsel responded not by objecting but by saying: “Last question, your Honor. . . . [Ills the review hearing going to be . . . before you or the Commissioner?”

¶41      Given the foregoing, we conclude that even if Counsel was trying to raise an objection to the fact that the district court had not provided a comprehensive set of expectations for Cassandra to meet in order to have supervision of her parent-time lifted, he did not raise that objection to a level of consciousness in the mind of the court such that the court could consider it. Accordingly, this potential issue was not preserved for our review. See Cruz, 2005 UT 45, ¶ 33; State v. Olsen, 860 P.2d 332, 336 (Utah 1993) (“A party who fails to make a clear and timely objection waives the right to raise the issue at the appellate level.” (cleaned up)).

¶42 Finally, Cassandra argues that the expectation that she complete reunification therapy as determined by a therapist before she is allowed unsupervised parent-time violates section 30-3-34.5(5) because that section “does not allow the district court to delegate the [setting of conditions for the lifting of supervision] to a therapist.” Again, she did not raise this issue below. Because it is unpreserved, we do not address it. See True v. Utah Dep’t of Transp., 2018 UT App 86, ¶ 32, 427 P.3d 338 (stating that “an argument based upon an entirely distinct legal theory is a new claim or issue and must be separately preserved” (cleaned up)).

CONCLUSION

¶43 The district court made an adequate finding that Cassandra posed a present risk of harm to Child if Child were to be left unsupervised with her. Additionally, Cassandra’s first argument in support of a conclusion that the district court failed to comply with Utah Code section 30-3-34.5(5) by not providing specific goals and expectations for Cassandra to meet before being granted unsupervised parent-time is mistaken, and her other arguments in support of that conclusion were unpreserved. We therefore affirm.

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

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Last Week, My Ex Came Into Family Court Smelling of Pot but Still the Judge Favors Her Over Me. What Can I Do?

Does your jurisdiction permit people to make use of marijuana recreationally? Or to make use of it with a doctor’s prescription or a “medical marijuana card”? If so, then smelling of marijuana may not be enough to cause a court concern.

Otherwise, did you bring your ex smelling of marijuana to the court’s attention? You certainly could have. If you have another court hearing or other appearance coming up, and if your ex shows up smelling of marijuana again, you can certainly speak up and express your concern that your ex may be making illegal use of marijuana and/or abusing marijuana.

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

https://www.quora.com/The-father-of-my-child-has-visitation-rights-ordered-by-court-yet-he-will-be-in-a-different-state-during-his-visitation-time-but-wants-his-aunt-to-take-over-do-I-have-to-allow-his-aunt-visitation-while-he-s-on

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State In Interest of B.W. – 2022 UT App 131

State In Interest of B.W. – 2022 UT App 131

Court of Appeals of Utah.

STATE of Utah, IN the INTEREST OF B.W., J.W., and N.W., persons under eighteen years of age.

H.W., Appellant,

v.

State of Utah, Appellee.

No. 20210886-CA

Filed November 17, 2022

Eighth District Juvenile Court, Duchesne Department, The Honorable Jeffry Ross, No. 1182864

Attorneys and Law Firms

Emily Adams and Sara Pfrommer, Park City, Attorneys for Appellant

Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Salt Lake City, Attorneys for Appellee

Martha Pierce, Salt Lake City, Guardian ad Litem

Judge Ryan D. Tenney authored this Opinion, in which Judges Gregory K. Orme and Ryan M. Harris concurred.

Opinion

TENNEY, Judge:

¶1 In December 2019, H.W. (Mother) gave birth to twins, J.W. and N.W. (collectively, the Twins). At the hospital, Mother tested positive for methamphetamine, as did the Twins’ umbilical cords. The Division of Child and Family Services (DCFS) soon began providing protective supervision services to Mother, the Twins, and B.W., Mother’s one-year-old son. After Mother repeatedly failed drug tests, the juvenile court placed B.W., J.W., and N.W. (collectively, the Children) in DCFS custody.

¶2 Mother continued to struggle with illegal drug use, and the court terminated reunification services in May 2021. Mother was then treated in an inpatient treatment facility from May through August 2021. After leaving this treatment facility, Mother again relapsed, using methamphetamine several times in the ensuing weeks. At the close of a termination hearing in November 2021, the court terminated Mother’s parental rights in the Children.

¶3 Mother now appeals the termination decision, arguing that there was not clear and convincing evidence (1) that any ground for termination existed or (2) to support the court’s best interest determination. As set forth below, however, there was enough evidence on both fronts. We accordingly affirm the challenged rulings.

BACKGROUND

DCFS Petitions for Protective Supervision

¶4 In December 2019, when B.W. was one year old, Mother gave birth to the Twins. At the time of their birth, Mother tested positive for “methamphetamine and amphetamines.” The Twins’ umbilical cords also tested positive for methamphetamine and amphetamines. Mother claimed that “she didn’t know why or how she could have tested positive unless it was her e-cigarette.”1

¶5 Based on the positive drug tests, DCFS filed a verified petition for protective supervision services a few weeks after the Twins’ births. In that petition, DCFS alleged that the Children were abused and neglected based on the Twins’ fetal exposure to illegal drugs.

¶6 Mother responded pursuant to rule 34(e) of the Utah Rules of Juvenile Procedure, meaning that she neither admitted nor denied the allegations but accepted that the allegations would “be deemed true.” See Utah R. Juv. P. 34(e). Based on Mother’s rule 34(e) response, the juvenile court found that the Twins had been exposed to illegal drugs and that all the Children were abused and neglected by Mother. The juvenile court accordingly ordered DCFS “to provide protective supervision services to the family” and to develop a child and family plan.

 

¶7 With Mother’s input, DCFS then created a child and family plan. The plan listed several responsibilities for Mother, such as maintaining a residence appropriate for the Children, completing a mental health and substance abuse assessment, submitting to random drug testing, and making daily calls to the Treatment Assessment Screening Center (TASC) system.

¶8 The court held a disposition hearing less than one month after it adjudicated the Children as abused and neglected. At that hearing, DCFS reported that Mother had not been calling into the TASC system or completing drug tests. The guardian ad litem moved for the Children to be taken into DCFS custody, but the court declined that request and instead again ordered Mother to comply with the plan. The court also scheduled a thirty-day review hearing.

DCFS Petitions for Custody

¶9 Over the next month, “Mother failed to call into TASC 7 times, missed 3 drug tests, and tested positive for methamphetamines on two occasions.” As a result, on April 16, 2020, DCFS filed an expedited verified petition for custody.

¶10 About a week later, the juvenile court held a pretrial hearing on the custody petition. Mother entered a rule 34(e) response, and the court again determined that Mother had abused and neglected the Children. The court also found that DCFS had made “[r]easonable efforts” to “prevent the removal of” the Children but that those “efforts were unsuccessful.” The court thus ordered the Children to be removed from Mother and placed in the temporary custody of DCFS.

¶11 The court held a disposition hearing the following month. At that hearing, the court ordered Mother to comply with a newly created child and family plan, which contained “essentially the same provisions as the previous one,” including the requirements noted above. The court also ordered DCFS to provide reunification services, acknowledging that reunification was “the primary goal.”

Mother Requests Placement with Grandparents

¶12 At the pretrial and disposition hearings (and, as will be discussed, at subsequent hearings in the case as well), Mother requested that the Children be placed with her mother (Grandmother) and stepfather (Step-Grandfather) (collectively, Grandparents). After Mother made this request, however, the State notified the court that Step-Grandfather was unable to pass a DCFS background check. The record lacks some of the specifics regarding this background check, but it does show that DCFS informed the court that Step-Grandfather was unable to pass it because there were five cases against him in the Licensing Information System (LIS). The LIS is a “sub-part of the Management Information System,” a database that DCFS is statutorily required to maintain.2 Utah Code Ann. § 62A-4a-1006(1) (LexisNexis Supp. 2021). For an individual to be included in the LIS, DCFS must make “a supported finding” that the individual committed “a severe type of child abuse or neglect.” Id. § 62A-4a-1005(1); see also id. § 62A-4a-1006(1)(b).

¶13 DCFS gave information to Step-Grandfather about how to appeal the LIS cases. After he did, three of the cases were administratively overturned.3 But the remaining two were upheld because they “were of such significance that they [could not] be overturned.”

¶14 Even so, Mother still requested that the Children be placed with Grandparents. Over the course of several hearings, Grandmother informed the court that Step-Grandfather was only home one day every week, that the LIS cases in question were from “[a]bout 20 years ago,” and that Step-Grandfather was “never charged with sexual abuse.” Nonetheless, the court repeatedly decided against placing the Children with Grandparents.4

Juvenile Court Terminates Reunification Services

¶15 For the remainder of 2020, Mother struggled to comply with the new child and family plan. For example, although Mother successfully completed a mental health and substance abuse assessment, she “struggled for the first several months to fully engage in the therapy that was recommended for [her], with attendance being very sporadic and inconsistent.” On December 1, 2020, Mother was scheduled to check into an inpatient treatment facility. But when the DCFS caseworker went to pick her up, “Mother did not answer the door and missed her appointment to check in.” Mother belatedly went to the treatment facility the following week, but on arrival, she tested positive for methamphetamine. When the facility offered to accept Mother despite the positive drug test, she “refused to enter.” After learning of these events, the court ordered Mother to be jailed if she was not in an inpatient treatment facility by December 23, 2020. Mother checked into a facility on December 23, but she left two days later.

¶16 In February 2021, Mother gave birth to another child, A.W. Shortly after A.W.’s birth, DCFS removed him from Mother’s care via warrant. He was returned to Mother’s custody once his umbilical cord test came back showing no presence of illegal drugs. But the court ordered Mother to “strictly comply with the court’s drug testing orders going forward, or A.W. would likely be removed from [her] custody again.” In April 2021, the court removed A.W. from Mother’s custody based on Mother’s “ongoing drug testing issues.”5

¶17 The court held a permanency hearing for the Children in May 2021. At that hearing, the court found that DCFS had made “[r]easonable efforts” to provide reunification services and that Mother “partially complied with the requirements of the service plan.” But the court stated that it could not find that Mother had “the strength to stay away from drugs with the [Children] in the home.” In support of this, the court detailed the many times that Mother had tested positive for illegal drugs or had failed to test at all. The court further determined that it could not extend reunification services for the Children, so it changed their final permanency plan to adoption.6

Mother Enters an Inpatient Treatment Facility

¶18 From May 3, 2021, through August 31, 2021, Mother received inpatient drug treatment. Although she tested positive for methamphetamine when she arrived, she reportedly did very well in the program and remained drug-free throughout her stay. Before leaving treatment, Mother told a caseworker that she no longer wished to live with the alleged father because he was also struggling to stay clean. But when Mother left the facility, “she almost immediately” started living with the alleged father again and “very quickly relapsed on methamphetamine.” Mother later testified that in the two months after she left the facility, she had “3 relapses and 5 methamphetamine uses.”

Juvenile Court Terminates Mother’s Parental Rights

¶19 On June 15, 2021, the State filed a verified petition for termination of Mother’s parental rights. The court held a termination hearing on November 1, 2021, and the parties stipulated to present the evidence by proffer and have the witnesses available for cross-examination. In support of its petition, the State proffered the testimony of two DCFS caseworkers, and those caseworkers also appeared in court for live cross-examination. The State also offered, and the court received, the caseworkers’ case notes. The Children’s current foster mother (Foster Mother) testified in person.

¶20 The first DCFS caseworker (Caseworker 1) had worked with the family from the Twins’ births until December 2020. The State proffered that she would have testified about DCFS’s unsuccessful efforts to place the Children with relatives, Mother’s supervised visits with the Children, and Mother’s efforts to comply with the plan, including drug testing and participation in therapy. Caseworker 1 also would have discussed how she arranged to take Mother to an inpatient treatment facility and how Mother did not answer the door when Caseworker 1 arrived.

¶21 On cross-examination, Mother’s counsel asked how Mother interacted with the Children during the supervised visits. Caseworker 1 responded that Mother was “very engaging” with the Children and that the “visits went very well.” Caseworker 1 also agreed that Mother clearly loved the Children. When Counsel asked if Mother was a “good and appropriate parent[ ]” “but for the drug use,” Caseworker 1 replied, “Yes, except for the drug use.” Counsel also asked about her observations of Mother’s home. Caseworker 1 responded that “[m]ost of the time, [she] was just in the living room” and that she “did not see any drugs or paraphernalia.”7 Caseworker 1 also agreed that before the Children were removed from Mother’s custody, she never observed them to be without proper food, clothing, supervision, affection, or medical care.

¶22 Mother’s counsel also questioned Caseworker 1 about why the Children weren’t placed with Grandparents. Caseworker 1 responded that the Children were not placed with Grandparents because “[t]here were some things on [Step-Grandfather’s] background check that [DCFS] just could not look at them being a placement.” When asked if she remembered what was troubling about Step-Grandfather’s background check, Caseworker 1 answered, “I don’t, no. Usually I look at those, and once it’s not acceptable for our agency, it – you know, that’s pretty much it for me.”

¶23 The guardian ad litem (the GAL) assigned to the Children also cross-examined Caseworker 1. When the GAL asked if Mother took responsibility for her drug use, Caseworker 1 responded that although Mother “was always very apologetic,” she didn’t “follow through” or “do what we asked.” Caseworker 1 said that Mother had “a tendency to blame other people for [her] problems.” And when asked about Mother’s drug testing, Caseworker 1 said that it “went in waves,” where Mother would “do really well for a while” but then “wouldn’t do well for a while.”

¶24 The State also proffered testimony from a second DCFS caseworker (Caseworker 2). Caseworker 2 had worked with the family from December 2020 through the termination hearing in November 2021. She would have testified that she attempted to take Mother to the inpatient treatment facility in December 2020, that Mother tested positive for methamphetamine when they arrived at the facility, and that, for “unclear” reasons, Mother ultimately refused to stay at the facility. Caseworker 2 also would have testified that later in December 2020, Mother entered an inpatient program but left after two days. And she would have testified about attempts to place the Children with relatives, the supervised visits, and Mother’s efforts to comply with the plan. She also would have explained how Mother’s youngest child, A.W., was placed in DCFS custody due to Mother’s failed drug tests. Caseworker 2 would have further testified that Mother entered an inpatient treatment facility in May 2021, that Mother had plans to move in with Grandmother after she left the program because the alleged father is one of her “triggers,” but that after leaving the program, Mother almost immediately moved back in with the alleged father.8

¶25 During her cross-examination, Caseworker 2 acknowledged that Mother “interact[s] very well” with the Children and described her behavior during the supervised visits as “appropriate.” Caseworker 2 also acknowledged that in the times she had been inside Mother’s home, she had never “seen any sign of drug use or paraphernalia.” But when the GAL asked if the Children could “be safely returned to the home today,” Caseworker 2 replied, “No.” And when asked if Mother was “a good and appropriate parent” “but for” her drug use, Caseworker 2 responded, “I don’t like the term good parent, bad parent. I think it’s too subjective. But I think in answer to that, I would say she is an appropriate parent. I think she’s a parent with issues, but she tries her best.”

¶26 Foster Mother testified next. Foster Mother explained that she and her husband started fostering N.W. in April 2020 and J.W. and B.W. in May 2020. Foster Mother described the Children as her “whole world” and testified that she and her husband were willing to adopt the Children.

¶27 Foster Mother then spoke about each individual child. She said that B.W., for example, is “enrolled in early intervention” with PrimeTime 4 Kids and “receives speech and language therapy.”9 And she said that J.W. also does PrimeTime 4 Kids, but that he doesn’t have any “physical limitations or medical needs.” Foster Mother also explained that N.W. has a rare chromosomal syndrome. When N.W. first came into their home, he was on “supplemental oxygen 24 hours a day” and had a G-tube to help with feeding, which required daily cleaning. She further testified that N.W.’s chromosomal syndrome has caused developmental delays and that he will “remain delayed.” On cross-examination, she discussed how she and her husband “did a lot of research” into the syndrome by watching YouTube videos and “lectures given by doctors.”

¶28 After the State rested, Mother proffered the testimony of three witnesses: a clinical mental health counselor (Counselor) who worked with Mother at the inpatient treatment facility, Grandmother, and Mother. As had occurred with the State’s witnesses, the three witnesses’ testimonies were offered via proffer, and Grandmother and Mother were then subject to live cross-examination.10

 

¶29 Counselor would have testified that Mother entered the inpatient treatment facility in May 2021 and successfully completed the program in August 2021. She would have stated that “[o]ver the last four to five weeks of her treatment, [Mother] gave this program her all, attending all groups, individual sessions, case management appointments, et cetera.” Counselor also would have explained that Mother gave “each assignment careful thought and consideration” and had “agreed to continue to work on learning parenting skills and how to improve her ability to manage her emotions in a healthy way.” And Counselor would have testified that Mother “created a strong after care plan that included support from 12-step meetings, her religious community, and her ongoing therapists.” After proffering Counselor’s testimony, Mother’s counsel clarified that Counselor and Mother had not been in contact since Mother left the facility.

¶30 Mother proffered Grandmother’s testimony next. Grandmother would have testified that Mother and B.W. lived with her until B.W. was six months old. Grandmother would have described Mother as a “phenomenal mother” who dedicated her time to teaching and loving the Children. She would have described how Mother took the Children to the doctor frequently. She would have also testified that “she’s absolutely never known [Mother] to be high around her kids” and that she “didn’t know much about the drug use when [Mother and the alleged father] were living with [Grandparents] because they were never high around the kids.” Grandmother would have further explained that Mother had been working hard toward recovery and had been implementing what she learned in therapy.

¶31 Grandmother would have also testified about her attempts to have the Children placed with her and Step-Grandfather. She would have explained that they were denied placement because of the LIS cases against Step-Grandfather and “that they went through the appeal process,” “but they were denied again.” She would have testified that she and Step-Grandfather were “willing to work any safety plan requested by DCFS, including line-of-sight supervision any time” Step-Grandfather is around the Children. Grandmother would have also stated that Step-Grandfather was “willing to do a sexual behavioral risk assessment” and that “they would follow through with any treatment.”

¶32 At this point, the court asked for clarification about when Grandparents had requested custody, and Mother’s counsel provided a summary of when Grandparents had done so.11 Mother’s counsel further explained that DCFS denied placement with Grandparents because DCFS claimed there was “a substantiated sexual abuse allegation on the licensing database” that couldn’t be overturned. She said that DCFS “would not provide any more details than that as to what their concerns were.” When the court asked if Grandparents’ placement request was denied each time, Mother’s counsel stated that the requests were “denied,” or, rather, “continued more often than denied outright.”

¶33 Mother then proffered her testimony. Mother would have testified that “she loves her children very much and has worked very hard to be successful in this case.” She would have testified that she promptly addressed all safety concerns that DCFS caseworkers had about her home, like getting a fire extinguisher. She would have also explained how she always took the Children to their doctors’ appointments and how they were healthy and clean when they went into the State’s custody. With respect to her drug use, she would have described her improvement since entering a treatment facility and how she’s worked on implementing the skills she learned. Mother would have also acknowledged, however, that she was “not yet in active recovery.” But Mother would have testified that “despite her substance abuse disorder, … she always kept the drugs out of her home” and that she never used “around the [Children] and never at the house.”

¶34 During cross-examination, Mother acknowledged that she and the Twins’ umbilical cords tested positive for methamphetamine when they were born. She also acknowledged that she tested positive for drugs while pregnant with A.W. And Mother confirmed that since leaving the inpatient treatment facility, she had three relapses and used methamphetamine five times. She further testified that she created a safety plan while in the treatment facility and that she did not follow that plan. And she testified that since leaving the treatment facility, she had not been in contact with her “after care” contacts.

 

¶35 After closing arguments from all parties, the court ruled from the bench that grounds for termination existed and that it was in the Children’s best interest to terminate both parents’ parental rights. The court later issued written findings of fact and conclusions of law detailing its findings. There, the court found that Mother “struggled with drug testing and maintaining [her] sobriety throughout the entirety of the case.” The court then made extensive findings about Mother’s drug use, including a finding that “in 2020, Mother had 36 missed call-ins, 19 missed tests, 5 tests that were positive for methamphetamine[,] including on dates when she would have been pregnant with A.W., 1 test that was positive for alcohol, 1 test that was positive for THC[,] and 1 diluted test.” The court further found that in January 2021, “Mother had 4 missed call-ins and 1 missed test”; that in February 2021, Mother had “perfect testing compliance”; that in March 2021, “Mother missed 1 test”; and that in April 2021, “Mother failed to test on 4 occasions, failed to call in on 2 occasions, and tested positive for methamphetamine” on one occasion. Relatedly, the court found that Mother “quickly relapsed” after leaving the inpatient treatment facility and that, by her own testimony, “she had 3 relapses and 5 methamphetamine uses in the short two months’ time from leaving treatment to the date of trial.”

¶36 The court also concluded that “Mother’s attendance at therapy up until April of 2021 can be described as inconsistent at best.” In particular, the court noted DCFS’s attempts to help Mother get into an inpatient treatment facility and Mother’s initial resistance to inpatient treatment.

¶37 The court also made findings about Mother’s efforts and progress. It found that “by all accounts,” Mother did well at the inpatient treatment facility and “gave the program her all, attended all groups, individual sessions and case management meetings and that she excelled in her program and appeared to grow in her confidence and sobriety.” The court also found that “Mother completed a parenting class, consistently participated in family team meetings, kept in regular contact with DCFS, allowed DCFS to conduct home visits, obtained proper housing, attended visits with the [Children], and completed some adult education classes.” And the court concluded “that Mother appears to have good parental instincts and was always appropriate and attentive during visits with the [Children].” The court also stated that it was “very clear” that Mother “love[s] the [Children] very much.”

¶38 The court then addressed whether DCFS made “reasonable efforts” to provide reunification services. See Utah Code Ann. § 80-4-301(3)(a) (LexisNexis Supp. 2022).12 The court concluded that DCFS did make reasonable efforts, such as “holding regular family team meetings, completing regular home visits,” helping Mother get into a treatment facility, and providing transportation. The court also noted that Mother never argued that DCFS failed to make reasonable efforts. And the court pointed out that because Mother was provided reunification services for A.W., she was “afforded an opportunity to take full advantage of these ‘additional’ services and ‘additional’ time to remedy the safety concerns that brought the [Children]” into DCFS custody.

¶39 Having made these findings, the court then engaged in the two-part inquiry for termination of parental rights, determining (1) whether a statutory ground for termination exists and, (2) if so, whether termination is in the best interest of the child. See In re B.T.B., 2020 UT 60, ¶ 62, 472 P.3d 827.

¶40 On the question of whether grounds for termination existed, the court determined that four separate grounds existed:

• First, the court found that Mother’s use of illegal drugs “constituted abuse and neglect of the [Children].” See Utah Code Ann. § 80-4-301(1)(b) (listing “that the parent has abused or neglected the child” as a ground for termination). In support of this, the court relied on Mother’s drug use while pregnant and her “ongoing continued use of methamphetamines.”

• Second, the court found that Mother was an unfit parent because her “habitual use of methamphetamines and inability to maintain sobriety for any significant amount of time during the pendency of this matter render[s] [her] unable to properly care for the [Children].” See id. § 80-4-301(1)(c) (listing “that the parent is unfit or incompetent” as a ground for termination).

• Third, the court found that the Children “are being cared for in an out-of-home placement under the supervision of the juvenile court,” Mother is “either unwilling or unable to remedy the circumstances that caused the [Children] to be in an out-of-home placement notwithstanding reasonable and appropriate reunification efforts by DCFS, and there is a substantial likelihood that Mother … will not be capable of exercising proper and effective parental care in the near future.” See id. § 80-4-301(1)(d)(i) (listing a ground for termination applicable when children are “being cared for in an out-of-home placement under the supervision of the juvenile court”). Relevant here, the court found that despite nearly two years of reunification services, Mother was “still in active methamphetamine addiction and use, which is the entire reason the [Children] were placed in DCFS custody to begin with.” The court further found that “more than a year after subjecting the [Twins] to fetal exposure of methamphetamines, Mother did the same thing to yet another child, all while participating in reunification services with DCFS.”

• Fourth, the court found that Mother “demonstrated a failure of parental adjustment.” See id. § 80-4-301(1)(e) (listing “failure of parental adjustment” as a ground for termination”); id. § 80-4-102(2) (defining “failure of parental adjustment”). Here, the court again relied on its conclusion that “with respect to Mother’s … methamphetamine addiction, very little if any progress has been made.”

¶41 Because it found that grounds for termination existed, the court then moved to the question of whether termination of Mother’s parental rights was in the Children’s best interest. As part of this analysis, the court considered whether “efforts to place the child with kin who have, or are willing to come forward to care for the child, were given due weight.” (Quoting Utah Code Ann. § 80-4-104(12)(b)(ii) (LexisNexis Supp. 2022).) The court concluded that efforts to place the Children with kin were given due weight. With respect to Grandparents, the court stated that Step-Grandfather “did not pass the DCFS background check and, as a result, [Grandparents’] request for placement was denied.” It further explained that the “denial was administratively appealed” and that Grandparents lost the appeal. And it finally noted that when Mother asked the court to “waive the failed background check” and place the Children with Grandparents anyway, the court “denied this request after considering all of the information and argument from the parties.” The court accordingly concluded that “due weight” had been given to efforts to place the Children with Grandparents but that the placement “did not occur due to [Step-Grandfather] failing his background check.”13

¶42 The court then considered whether termination was “strictly necessary” to promote the Children’s best interest. See Utah Code Ann. § 80-4-104(12)(b) (LexisNexis Supp. 2022); see also In re B.T.B., 2020 UT 60, ¶ 66, 472 P.3d 827. On this, the court made several findings about the Children’s relationship with their foster parents, including:

• The Twins “have been with the foster parents nearly their entire lives and [B.W.] for nearly half of his young life.”

• The Children “have thrived in the care of the foster parents. [B.W.] has made great strides in his speech through regularly working with a speech therapist. [N.W.] has an extremely rare condition … which results in many developmental delays and requires extra precautions and care. The foster parents have spent many hours researching the condition and how they can best care for [N.W.]”

• The Children “have formed a strong familial bond with the foster parents and look to the foster parents as their natural parents.”

• “The foster parents have treated the [Children] as their own and have tailored their lives so that one of their primary objectives is to provide for the needs and safety of the [Children].”

• “The [Children’s] sibling, A.W.[,] is also in the care of the foster parents.”

¶43 Based on these findings, the court concluded that “it is clearly in the [Children’s] best interests to have parental rights terminated so that they may be adopted.” The court further explained, “Given the young age of the [Children] and the amount of time they have been in the home of the foster parents in relation to their young ages, it is strictly necessary to terminate parental rights so the [Children] may be adopted and receive the permanency they deserve.” The court thus terminated Mother’s parental rights in the Children. Mother now appeals.

ISSUES AND STANDARDS OF REVIEW

¶44 Mother first challenges the juvenile court’s determination that grounds for termination existed. She next challenges the juvenile court’s best interest determination, arguing that the court erred when it “failed to require clear and convincing evidence to preclude a kinship placement with Grandmother” and “concluded that it was strictly necessary to terminate Mother’s parental rights.”

¶45 “Whether a parent’s rights should be terminated presents a mixed question of law and fact.” In re E.R., 2021 UT 36, ¶ 7, 496 P.3d 58 (quotation simplified). We will thus overturn a juvenile court’s termination decision only if “it is against the clear weight of the evidence or leaves [us] with a firm and definite conviction that a mistake has been made.” Id. (quotation simplified). Put differently, we will overturn a termination decision only if the juvenile court “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.” Id. (quotation simplified); see also id. ¶ 12.

ANALYSIS

¶46 In the Termination of Parental Rights Act (the Act), our legislature set forth two findings that a juvenile court must make before terminating parental rights. See Utah Code Ann. § 80-4-103(2)(c) (LexisNexis Supp. 2022); see also In re B.T.B., 2020 UT 60, ¶ 46, 472 P.3d 827. First, the juvenile court must find that at least one ground for termination exists under Utah Code section 80-4-301. See In re B.T.B., 2020 UT 60, ¶ 46, 472 P.3d 827; In re J.M., 2020 UT App 52, ¶ 30, 463 P.3d 66. Second, the court must find that termination is in the best interest of the child. See In re B.T.B., 2020 UT 60, ¶ 46, 472 P.3d 827. Both findings must be supported by clear and convincing evidence. See Utah Code Ann. § 80-4-103(2)(a); In re B.T.B., 2020 UT 60, ¶ 48, 472 P.3d 827.

¶47 In this case, the court terminated Mother’s parental rights in the Children after finding that four grounds for termination existed and that termination was in the Children’s best interest. Mother challenges both parts of that ruling.

I. Grounds for Termination

¶48 Utah Code section 80-4-301 lists several possible grounds for terminating parental rights. The juvenile court found that four of them existed with respect to Mother: “that the parent has neglected or abused the child,” Utah Code Ann. § 80-4-301(1)(b) (LexisNexis Supp. 2022); “that the parent is unfit or incompetent,” id. § 80-4-301(1)(c); “that the child is being cared for in an out-of-home placement” and additional requirements have been met, id. § 80-4-301(1)(d)(i); and “failure of parental adjustment,” id. § 80-4-301(1)(e).

¶49 Mother challenges the court’s finding of each ground, contending that there wasn’t clear and convincing evidence to support any of them. But we conclude that the evidence was sufficient with respect to at least one of the grounds—failure of parental adjustment—and we accordingly reject Mother’s argument. See In re J.M., 2020 UT App 52, ¶ 30, 463 P.3d 66 (explaining “that the presence of a single statutory ground is sufficient to fulfill the first element of the termination test”).14

¶50 As defined by the Act, failure of parental adjustment “means that a parent or parents are unable or unwilling within a reasonable time to substantially correct the circumstances, conduct, or conditions that led to placement of their child outside of their home, notwithstanding reasonable and appropriate efforts made by the division to return the child to the home.” Utah Code Ann. § 80-4-102(2) (LexisNexis Supp. 2022). Here, the juvenile court found that Mother demonstrated a failure of parental adjustment because, although she made “significant progress with a number of requirements on the child and family plan, [she was] still in active methamphetamine addiction and use, which is the entire reason the [Children] were placed in DCFS custody to begin with.” The court particularly focused on Mother’s testimony that she used methamphetamine while pregnant with A.W. and that “in the two months leading up to trial, she used methamphetamine on five occasions.”

 

¶51 After reviewing the record, we cannot conclude that the court’s finding that Mother demonstrated a failure of parental adjustment went “against the clear weight of the evidence.” In re E.R., 2021 UT 36, ¶ 7, 496 P.3d 58 (quotation simplified). As explained, DCFS filed a petition for protective supervision services a few weeks after the Twins’ birth, after the Twins’ umbilical cords tested positive for methamphetamine and amphetamine. The juvenile court granted the petition, adjudicated the Children as abused and neglected, and ordered Mother to submit to drug testing as part of a child and family plan. Two months later, the court removed the Children from Mother and placed them in DCFS custody because Mother missed drug tests and tested positive for methamphetamine.

¶52 Again, this ground looks to whether the parent was able to “substantially correct” the “conduct” or “conditions that led to placement of [the] child outside of their home.” Utah Code Ann. § 80-4-102(2). So here, since the Children had been removed from the home because of Mother’s positive and missed drug tests, the question before the court was whether Mother had “substantially corrected” that behavior between their removal in April 2020 and the termination hearing in November 2021.

¶53 The record supports the court’s conclusion that Mother hadn’t. Indeed, the record shows that up through the termination hearing, Mother continued to struggle with drug testing and drug use. As the court found, “in 2020, Mother had 36 missed call-ins, 19 missed tests, 5 tests that were positive for methamphetamine[,] including on dates when she would have been pregnant with A.W., 1 test that was positive for alcohol, 1 test that was positive for THC[,] and 1 diluted test.” From January to March 2021, Mother had 4 missed call-ins and 2 missed tests. “In April 2021, Mother failed to test on 4 occasions, failed to call in on two occasions, and tested positive for methamphetamine” once. From May to August 2021, Mother was in the inpatient treatment facility, where she reportedly did very well. But upon leaving the facility, Mother “almost immediately returned” to live with the alleged father and “very quickly relapsed on methamphetamine.” Indeed, in “the short two months’ time from leaving treatment to the date of trial,” Mother “had 3 relapses and 5 methamphetamine uses.” Mother has not challenged these findings, and they support a finding that Mother was “unable or unwilling within a reasonable time to substantially correct the circumstances, conduct, or conditions that led to placement of [the Children] outside of [her] home.” Id.

¶54 Mother nevertheless argues that the court improperly took a “ ‘zero-tolerance’ approach” and failed “to in any way take into account Mother’s efforts and progress.” But the court didn’t take a zero-tolerance approach. Rather, the court concluded that Mother was unable or unwilling to substantially correct her drug use after making findings about Mother’s repeated use of methamphetamine, including specific findings about her use while pregnant and again in the few months between her inpatient treatment and the termination hearing. The court also didn’t fail to “take into account Mother’s efforts and progress.” In its order, the court acknowledged that Mother had “made significant progress with a number of requirements on the child and family plan” and that Mother had “successfully completed” the inpatient treatment program. But the court then found that Mother “very quickly relapsed on methamphetamine” after leaving the facility and that Mother was still “in active methamphetamine addiction and use.” In short, the court recognized Mother’s progress, but it nevertheless found that even with this progress, her ongoing methamphetamine use still demonstrated that she was either unwilling or unable to substantially correct her drug use.

¶55 Mother also argues that she didn’t “willfully refuse to deal with her drug issue, but rather really tried to stay clean.” But a court can find failure of parental adjustment based on a parent’s unwillingness or inability to “substantially correct the circumstances, conduct, or conditions that led to placement of [the] child outside of their home.” Id. In this sense, a parent’s unsuccessful efforts, even if sincere, might not be sufficient to prevent a finding of failure of parental adjustment if the behavior that led to the child’s removal is not substantially corrected. See id. As explained, the court’s finding that Mother was either unwilling or unable to substantially correct her drug use does not go against the clear weight of the evidence, given that Mother continued to miss tests and continued to test positive even while benefiting from reunification services, and given that she “very quickly relapsed on methamphetamine” after spending over three months at an inpatient treatment facility. In short, the evidence showed that Mother either could not stop using drugs because of addiction, in which case she was unable to substantially correct the behavior, or that she was choosing to not stop using drugs, in which case she was unwilling. Either way, the court’s finding did not go against the clear weight of the evidence.

¶56 Lastly, Mother contends that her relapses “should only be disqualifying if the relapse renders her incapable of taking care of her children.” For this proposition, Mother cites Utah Code subsection 80-4-302(2)(c), which states, “In determining whether a parent or parents are unfit or have neglected a child the juvenile court shall consider: … habitual or excessive use of intoxicating liquors, controlled substances, or dangerous drugs that render the parent unable to care for the child. …” See id. § 80-4-302(2)(c) (LexisNexis Supp. 2022). According to Mother, the court was only allowed to ground its termination decision in her drug use if it made specific findings that the drug use made her “unable to care” for the Children. See id.

¶57 But we have previously stated that the considerations listed under subsection 80-4-302(2) “apply to two specific grounds for termination under subsection [80-4-301(1)]—whether a parent is ‘unfit or incompetent’ pursuant to subsection [80-4-301(1)(c)], and whether a parent ‘has neglected or abused the child’ pursuant to subsection [80-4-301(1)(b)].” In re L.A., 2017 UT App 131, ¶ 33, 402 P.3d 69. This is because the statute only requires the juvenile court to take the listed considerations into account “[i]n determining whether a parent or parents are unfit or have neglected a child.” Utah Code Ann. § 80-4-302(2) (emphasis added). So under our controlling precedent, subsection 80-4-302(2) is inapplicable to the ground for termination at issue here, which is failure of parental adjustment. The court was thus not required to consider whether Mother’s drug use rendered her “unable to care for” the Children, and we need not consider Mother’s argument on that point. See id.see also In re L.A., 2017 UT App 131, ¶ 33, 402 P.3d 69.

¶58 In short, there was sufficient evidence of Mother’s ongoing drug use, thereby also supporting the court’s finding that Mother was “unable or unwilling within a reasonable time to substantially correct the circumstances, conduct, or conditions that led to placement of [the Children] outside of their home.” Utah Code Ann. § 80-4-102(2). We are thus unconvinced that the court “failed to consider all of the facts” or that the court’s decision was “against the clear weight of the evidence.” In re E.R., 2021 UT 36, ¶ 7, 496 P.3d 58 (quotation simplified).

II. Best Interest

¶59 After finding that grounds for termination existed, the juvenile court determined that termination of Mother’s parental rights and adoption by the foster family was in the Children’s best interest. On appeal, Mother argues that there was not clear and convincing evidence that termination of Mother’s parental rights, as opposed to placement with Grandparents, was in the Children’s best interest. Relatedly, she asks us to “remand with instructions to the juvenile court to consider the viability of guardianship or other custodial arrangements with Grandmother.” We decline this request and instead affirm the juvenile court’s best interest determination.15

¶60 If a juvenile court determines that grounds for termination exist, the court must then consider whether termination is in the child’s best interest. See In re B.T.B., 2020 UT 60, ¶ 46, 472 P.3d 827; see also Utah Code Ann. § 80-4-103(2)(c) (explaining that a court should “consider the welfare and best interest of the child of paramount importance in determining whether to terminate parental rights”). This consideration should be directed by “two related pieces of important guidance” provided by our legislature. In re J.J.W., 2022 UT App 116, ¶ 27, 520 P.3d 38.

¶61 First, “[a] child’s need for a normal family life in a permanent home, and for positive, nurturing family relationships is usually best met by the child’s natural parents.” Utah Code Ann. § 80-4-104(8) (LexisNexis Supp. 2022). There is accordingly “a strong preference for families to remain together.” In re J.J.W., 2022 UT App 116, ¶ 27, 520 P.3d 38. Second, a court should terminate parental rights only when doing so is “strictly necessary” “from the child’s point of view.” Utah Code Ann. § 80-4-301(1); see also In re J.J.W., 2022 UT App 116, ¶ 28, 520 P.3d 38. Put differently, “termination must be strictly necessary to promote the child’s best interest.” In re B.T.B., 2020 UT 60, ¶ 60, 472 P.3d 827. Because this analysis occurs “from the child’s point of view,” “the court’s focus should be firmly fixed on finding the outcome that best secures the child’s well-being.” Id. ¶ 64.

¶62 When considering whether termination is strictly necessary, a juvenile court must consider, “among other relevant factors,” whether “efforts to place the child with kin who have, or are willing to come forward to care for the child, were given due weight.” Utah Code Ann. § 80-4-104(12)(b)(ii). Our supreme court has clarified that this part of the inquiry also requires courts to explore whether other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating parental rights. In some cases, alternatives will be few and unsatisfactory, and termination of the parent’s rights will be the option that is in the child’s best interest. But in other cases, courts should consider whether other less-permanent arrangements might serve the child’s needs just as well. In re B.T.B., 2020 UT 60, ¶ 67, 472 P.3d 827 (quotation simplified).16

¶63 Two of our recent cases shed light on how a court should consider kinship placements: In re A.H., 2022 UT App 114, 518 P.3d 993, and In re J.J.W., 2022 UT App 116, 520 P.3d 38.

¶64 In the first case, the State moved to terminate the rights of a mother and father to their seven children. In re A.H., 2022 UT App 114, ¶ 16, 518 P.3d 993. The juvenile court did not terminate the parents’ rights in the oldest five children, and those children were placed with their grandparents “under an order of permanent custody and guardianship.” Id. ¶ 21. But the court did terminate the parents’ rights in the youngest two children, and the court did so even though the grandparents were willing and able to care for those younger children. See id. ¶¶ 26, 29. The court’s decision regarding the younger children was based on its finding that it was in their best interest to be adopted by their foster family. Id. ¶ 29. We reversed on appeal, however, concluding “that the juvenile court’s best-interest determination was against the clear weight of the evidence presented at trial.” Id. ¶ 57. We did so because there was not clear and convincing evidence that terminating the parents’ rights in the younger children “was strictly necessary, especially given the presence of another available and acceptable option—permanent guardianship with [the grandparents], alongside their five siblings—that would not require permanent severance of familial bonds and that would serve the [younger children’s] best interest at least as well as adoption.” Id.

¶65 In the second case, a district court terminated a father’s parental rights after determining that it was in the child’s best interest to be adopted by his grandparents. In re J.J.W., 2022 UT App 116, ¶¶ 13, 16, 520 P.3d 38. On appeal, we held that the “court fell into legal error when it failed to expressly consider other apparent reasonable options short of termination that might serve [the child’s] best interest just as well.” Id. ¶ 37. More specifically, we concluded that “the court erred by failing to explain, on the record, why a permanent custody and guardianship arrangement” with the child’s grandparents “could not serve [the child’s] best interest, and why termination of [the father’s] parental rights—as opposed to imposition of a guardianship—was strictly necessary to further that interest.” Id. We accordingly vacated the termination order and remanded “the case for a renewed best-interest analysis.” Id.

¶66 From our review of these cases and the statutes that they interpreted, three principles emerge that matter here.

¶67 First, courts have an obligation to consider proposed kinship placements, and if a court rejects a kinship placement, it must give reasons on the record for doing so. See id. ¶ 32 (faulting a court for rejecting a kinship placement without explaining “why it rejected that option”); see also In re A.H., 2022 UT App 114, ¶ 37, 518 P.3d 993 (“Courts that order termination of parental rights without appropriately exploring feasible alternatives to termination have not properly applied the second part of the two-part termination test.” (quotation simplified)); In re B.T.B., 2020 UT 60, ¶ 74, 472 P.3d 827 (explaining that strict necessity “requires the court to find, on the record, that no other option can achieve the same welfare and best interest for the child” as termination).

¶68 Second, although there’s a statutory preference for kinship placements, and although courts must appropriately explore kinship placements as a result, courts that explore such options may then conclude, on the facts before them, that a different option is in fact in a child’s best interest. See In re A.H., 2022 UT App 114, ¶ 37, 518 P.3d 993 (“In some cases, alternatives will be few and unsatisfactory, and termination of the parent’s rights will be the option that is in the child’s best interest.” (quotation simplified)); see also In re J.J.W., 2022 UT App 116, ¶ 29, 520 P.3d 38 (same). On this, In re A.H. stands as something of an illustrative contrast. There, we explained that if “a completely appropriate kinship placement” exists, it “becomes significantly more difficult” to show that termination is strictly necessary. 2022 UT App 114, ¶ 49, 518 P.3d 993. And we accordingly reversed in that case because there were “no concerns” with the proposed kinship placement and there was accordingly not clear and convincing evidence that termination was strictly necessary. Id. ¶¶ 50, 57. But if a case presents itself in which a court does appropriately consider the proposed kinship options and yet concludes that those options are not completely appropriate based on valid concerns, the court could then reject the proposed kinship placement and find that termination is strictly necessary. See id. ¶ 37; see also In re B.T.B., 2020 UT 60, ¶ 66, 472 P.3d 827; In re J.J.W., 2022 UT App 116, ¶ 29, 520 P.3d 38.

¶69 Third, if a court has complied with its statutory obligations, its resultant best interest determination is entitled to deference. See In re J.J.W., 2022 UT App 116, ¶ 18, 520 P.3d 38; see also In re E.R., 2021 UT 36, ¶ 22, 496 P.3d 58. This is because the best interest determination “is a factually intense inquiry dependent on the unique circumstances and needs of each child.” In re E.R., 2021 UT 36, ¶ 22, 496 P.3d 58 (quotation simplified). Furthermore, “the juvenile court has a superior perspective in light of its view of the demeanor of both parents and children.” Id. ¶ 23. For these reasons, “we do not lightly reverse a court’s best-interests determination.” In re A.H., 2022 UT App 114, ¶ 38, 518 P.3d 993. But to be clear, a juvenile court’s determinations are not “afforded a high degree of deference”; rather, “the deference afforded to the juvenile court is the same level of deference given to all lower court findings of fact and fact-like determinations of mixed questions.” In re E.R., 2021 UT 36, ¶¶ 29–30, 496 P.3d 58. Accordingly, we will overturn a juvenile court’s decision “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.” Id. ¶ 31 (quotation simplified). In In re J.J.W., for example, we remanded because the district court failed to consider whether a kinship placement could serve the child’s best interest. 2022 UT App 116, ¶ 37. And in In re A.H., we reversed where the juvenile court did consider the kinship placement but its decision went “against the clear weight of the evidence presented at trial.” 2022 UT App 114, ¶ 57, 518 P.3d 993.

¶70 With these principles in mind, we review the juvenile court’s best interest determination in this case and affirm.

¶71 First, unlike what occurred in In re J.J.W., the court here did “consider” and “discuss” the possibility of a kinship placement (namely, one with Grandparents). See 2022 UT App 116, ¶ 31, 520 P.3d 38. When Mother first requested that the Children be placed with Grandparents, the court denied that request because Step-Grandfather could not pass a background check. But the minutes for the hearing indicate that the court planned to “continue to work on placement clearance of” Grandparents. And the minutes from later hearings indicate that placement with Grandparents continued to be a topic of discussion among the parties and the court. Notably, the parties informed the court that although Step-Grandfather was able to get three of his LIS cases overturned, two could not be overturned because of their significance. In its termination order, the court documented this history, explaining that Step-Grandfather “did not pass the DCFS background check and, as a result, [Grandparents’] request for placement was denied.” The court explained further: “The denial was administratively appealed, which [Grandparents] lost. Thereafter, Mother … asked the Court to waive the failed background check and place the [Children] in [Grandparents’] direct custody. The Court denied this request after considering all of the information and argument from the parties.” And it later concluded that “due weight was given to possible kin placements, but they did not occur due to [Step-Grandfather] failing his background check.”

¶72 Despite all this, Mother argues that the court’s consideration was inadequate because the court did not further consider Grandparents’ apparent willingness to comply with a safety plan and Step-Grandfather’s offer to complete a sexual behavioral risk assessment. Relatedly, Mother points out “that Step-Grandfather worked out of the house six days a week” and thus claims “that his presence in Grandmother’s household would therefore be minimal.” But there is nothing in the record to suggest that the court didn’t consider this information. Rather, the record indicates that the court considered it but still concluded that Grandparents were an inappropriate placement given the import of Step-Grandfather’s LIS cases and background.

¶73 In short, the juvenile court repeatedly considered the possibility of placing the Children with Grandparents. It is thus clear to us that the court fully complied with its obligation to “appropriately explor[e]” whether they were an appropriate placement option. See In re A.H., 2022 UT App 114, ¶ 37, 518 P.3d 993.

¶74 Second, unlike what occurred in In re A.H., there were valid concerns in this case with Grandparents. See id. ¶ 50 (explaining that there were “no concerns” with the grandparents and that the juvenile court even found that they were “certainly appropriate caregivers”). As explained above, the juvenile court rejected Grandparents as a placement option because Step-Grandfather could not pass the DCFS background check due to his cases in the LIS. We see no basis for invalidating the court’s conclusion about the import of Step-Grandfather’s background.

¶75 If DCFS “makes a supported finding that a person committed a severe type of child abuse or neglect,” it enters “the name and other identifying information of the perpetrator with the supported finding” into the LIS. Utah Code Ann. § 62A-4a-1005(1)(b)(i) (LexisNexis Supp. 2021). A “supported finding” “means a finding by [DCFS] based on the evidence available at the completion of an investigation that there is a reasonable basis to conclude that abuse, neglect, or dependency occurred.” Id. § 62A-4a-101(42). If the alleged perpetrator is “18 years of age or older,” then “severe type of child abuse or neglect” means “chronic abuse,” “severe abuse,” “sexual abuse,” “sexual exploitation,” “abandonment,” “chronic neglect,” or “severe neglect.” Id. § 62A-4a-1002(1)(i) (2018). If the alleged perpetrator is “under the age of 18,” then “severe type of child abuse or neglect” means “serious physical injury, as defined in Subsection 76-5-109(1), to another child which indicates a significant risk to other children” or “sexual behavior with or upon another child which indicates a significant risk to other children.” Id. § 62A-4a-1002(1)(ii).17

¶76 As part of this process, DCFS must “serve notice of the finding on the alleged perpetrator.” Id. § 62A-4a-1005(1)(a) (Supp. 2021). The alleged perpetrator may then “file a written request asking [DCFS] to review the findings made,” “immediately petition the juvenile court under Section 80-3-404,” or “sign a written consent to … the supported finding” and entry in the LIS. Id. § 62A-4a-1005(3)(a). DCFS must remove an alleged perpetrator’s name and information from LIS “if the severe type of child abuse or neglect upon which the [LIS] entry was based: (A) is found to be unsubstantiated or without merit by the juvenile court under Section 80-3-404; or (B) is found to be substantiated, but is subsequently reversed on appeal.” Id. § 62A-4a-1005(e)(i). A finding is “substantiated” if a juvenile court determines “based on a preponderance of the evidence that abuse or neglect occurred.” Id. § 62A-4a-101(40).

¶77 Mother is correct that the record does not include the underlying facts of the LIS cases, and it may have been helpful for the analyses of both the juvenile court and our court if such information had been provided below. Nevertheless, the record is still sufficiently clear on several key things. One is that Step-Grandfather at one point had five cases in the LIS. These cases would have necessarily required a finding from DCFS that Step-Grandfather committed “a severe type of child abuse or neglect.” Id. § 62A-4a-1005(1). Another is that DCFS made efforts to help Step-Grandfather get the cases overturned, that three of the cases were overturned, but that two cases were still upheld because they were “of such significance that they cannot be overturned.”18 And finally, Grandmother’s proffered testimony was that there “was a successful reunification” in at least one of those cases, which meant that, whatever it was, the conduct at issue was serious enough that Step-Grandfather’s own children had been removed from his custody at some point.

¶78 We simply cannot fault the juvenile court for finding that it was not in the Children’s best interest to be placed in a home with somebody who, despite having tried to be removed from the LIS, nevertheless remained in the LIS based on two prior cases that were “of such significance that they cannot be overturned.” See In re J.P., 2021 UT App 134, ¶¶ 11, 20–23, 502 P.3d 1247 (upholding a juvenile court’s determination that placement with relatives was inappropriate where one member of the household had a “history of violence”). Indeed, beyond the obvious safety concerns raised by the LIS cases, we further note some legislative support for the court’s assessment of their significance to the question before it. By statute, a person who is listed in the LIS “may be disqualified from adopting a child, receiving state funds as a child care provider, or being licensed by” DCFS. Utah Code Ann. § 62A-4a-1005(2)(a)(v). While Mother points out that a kinship placement is not precisely the same thing as an adoption or being licensed by DCFS, this statute still evidences the legislature’s conclusion that placement on the LIS should result in some restriction of a person’s ability to have sustained access to children. Given this, we don’t see why a juvenile court couldn’t likewise conclude that there is good reason to not place children in the care of someone who is listed in the LIS.

¶79 Mother nevertheless contends that the facts underlying the LIS cases could have been fairly benign and therefore an invalid basis for not placing the Children with Grandparents. But if that were true, Step-Grandfather could have testified at the termination hearing, provided more information, and thus explained to the court himself why the LIS cases shouldn’t preclude placement. But he didn’t. Because of this, what the court was left with was that Step-Grandfather still had LIS cases that were based on a finding that he committed “a severe type of child abuse or neglect,” and that almost eighteen months after learning that these cases could prevent placement, two of the cases were still in the LIS because of their significance. Given all this, we decline to fault the court for not delving deeper into evidence that Mother could have provided but didn’t.19

¶80 Third and finally, given the court’s consideration of Grandparents and the information that it received throughout the proceedings and then noted in its order, we defer to its ultimate conclusion that although there was a potential kinship option, termination was in the Children’s best interest. See In re E.R., 2021 UT 36, ¶ 22, 496 P.3d 58. As explained above, DCFS found that Step-Grandfather committed “a severe type of child abuse or neglect” and that two of the cases could not be overturned because of their significance. Faced with those facts, the juvenile court could and indeed did validly conclude that placement with Grandparents would be “unsatisfactory,” In re B.T.B., 2020 UT 60, ¶ 67, 472 P.3d 827 (quotation simplified), and not “acceptable,” In re A.H., 2022 UT App 114, ¶ 49, 518 P.3d 993.

¶81 Having properly rejected the proposed kinship placement, the court then explained why adoption was in the Children’s best interest. It found that the Children had “thrived in the care of the foster parents” and “formed a strong familial bond with the foster parents and look to the foster parents as their natural parents.” The court also explained that N.W. has a rare chromosomal syndrome and that the foster parents have spent time researching the condition and learning how to best care for N.W. And with respect to the Children, the court found that the foster parents “treated [the Children] as their own” and “tailored their lives so that one of their primary objectives is to provide for the needs and safety of” the Children. These findings amply demonstrate that adoption by the foster parents was indeed a viable and positive option for the Children.

¶82 Given the findings detailed above, Mother has not persuaded us that the court “failed to consider all of the facts” or that it “considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” In re E.R., 2021 UT 36, ¶ 7, 496 P.3d 58 (quotation simplified). We accordingly decline to disrupt the court’s determination that it was in the Children’s best interest to be adopted by their foster family and that termination of Mother’s parental rights was strictly necessary to achieve that outcome.

CONCLUSION

¶83 The court’s finding that grounds for termination existed was not against the clear weight of the evidence, nor was its determination that terminating Mother’s parental rights was strictly necessary to promote the Children’s best interest. The decision below is accordingly affirmed.

——————–

1 When the Twins were born, Mother was living with the Children’s alleged father. The alleged father participated throughout the proceedings, and at the close of the same termination proceeding at issue in this appeal, the juvenile court terminated his rights, if any, in the Children. In a separate appeal, this court upheld that decision based on the alleged father’s failure to establish paternity. See Order, Case No. 20210915-CA (Feb. 18, 2022).

Mother was married to another man when each of the Children were born. This made him their presumptive father under the Utah Uniform Parentage Act. See Utah Code Ann. § 78B-15-204(1)(a) (LexisNexis 2018). But although this man was properly served, he never appeared. The juvenile court thus determined that he had abandoned the Children and terminated his parental rights as well. That portion of the court’s order is not at issue in this appeal.

The Management Information System “contain[s] all key elements of each family’s current child and family plan” and “alert[s] caseworkers regarding deadlines for completion of and compliance with policy, including child and family plans.” Utah Code Ann. § 62A-4a-1003(3)(a), (b) (LexisNexis Supp. 2021).

Effective September 1, 2022, several sections relevant to the LIS were repealed and renumbered. Compare id. §§ 62A-4a-101, -1005, -1006, with id. §§ 80-2-102, -708, -1002 (Supp. 2022). We cite to the versions in effect at the time of the termination hearing.

Although not entirely clear from the record, it appears that it was DCFS that administratively overturned three of the LIS cases against Step-Grandfather. See generally Utah Code Ann. § 62A-4a-1005(3)(i) (explaining that “the alleged perpetrator” may “file a written request asking [DCFS] to review the findings made”).

The Children were initially placed in the care of a foster mother. When the foster mother was no longer able to care for all the Children, the Twins went to live with another foster family. In either April or May 2020, all the Children went to live with a new foster family, where they remained through the duration of the proceedings.

The termination decision at issue in this appeal applied only to Mother’s parental rights in the Children. But because the juvenile court’s decision in this case was partly based on Mother’s choices while pregnant with A.W., we include those relevant facts.

Unless a statutory exception applies, “the juvenile court may not extend reunification services beyond 12 months after the day on which the minor is initially removed from the minor’s home.” Utah Code Ann. § 80-3-409(6) (LexisNexis Supp. 2022). As the juvenile court later explained in its termination decision, Mother was provided with separate reunification services with respect to A.W., so she was provided “ ‘additional’ services and ‘additional’ time to remedy the safety concerns that brought the [Children] in this matter into DCFS custody.”

The supervised visits occurred at either a DCFS office or a park, but the DCFS caseworkers periodically made visits to Mother’s home.

Grandmother, whose testimony was offered via proffer, would have testified that Mother had planned to move in with her after leaving the inpatient treatment facility, that there was room for Mother to move in, but that Mother never came to live with her.

“PrimeTime 4 Kids is an early intervention program serving children 0–2 and their families. … Early intervention is a federally mandated program that is established to help children 0–2 with developmental disabilities.” PrimeTime 4 Kids, https://primetime4kids.org/ [https://perma.cc/HC8T-U7GF].

10 The alleged father also testified, but his testimony was relevant to his asserted parental rights, which are not at issue in this appeal.

11 The juvenile court judge that presided over the termination hearing was new to the case.

12 Because there have been no material changes to the relevant statutory provisions, we cite the current version unless otherwise noted.

13 The court also found that “one of Mother’s cousins expressed a desire to have the [Children] placed with her; however, the cousin never filled out the required background check.” Mother has not challenged this aspect of the court’s ruling.

14 The juvenile court found that DCFS made reasonable efforts to return the Children to Mother. It also found that Mother received “ ‘additional’ services and ‘additional’ time” due to A.W.’s birth. Mother did not challenge those findings below or on appeal.

15 In her briefing, Mother seems to separately argue that the Children should have been placed with Grandmother alone, even if Step-Grandfather was not a good placement option. But the court’s order, as well as minute entries from prior hearings, indicate that Mother and Grandparents collectively requested that the court place the Children with Grandmother and Step-Grandfather together. Regardless, even if the request was that the Children be placed with only Grandmother, it was still appropriate for the court to consider Step-Grandfather’s background since he lived with Grandmother. Cf. In re J.P., 2021 UT App 134, ¶¶ 11, 20–23, 502 P.3d 1247 (affirming a juvenile court’s determination that a placement was inappropriate where one member of the household had a “history of violence”).

16 Our supreme court was writing generally about the strict necessity requirement and not specifically about the kinship inquiry. But we take its analysis to apply to the kinship inquiry, which is, after all, a part of strict necessity. See In re J.J.W., 2022 UT App 116, ¶ 29 (applying this language to the kinship inquiry); In re A.H., 2022 UT App 114, ¶ 37, 518 P.3d 993 (same).

17 Section 62A-4a-1002 has been repealed. See In re A.C., 2022 UT App 121, ¶ 6 n.6, 521 P.3d 186. The definition of “severe type of child abuse or neglect” can now be found in Utah Code section 80-1-102(78)(a) (LexisNexis Supp. 2022).

18 The State claimed that one of the cases involved sexual abuse, but Grandmother would have testified that the cases were “not … for any form of sexual abuse.” Our resolution of this issue does not turn on whether the cases involved sexual abuse, so we need not resolve this dispute.

19 At oral argument, Mother suggested that Step-Grandfather couldn’t have testified about the cases because they happened long ago and “he didn’t know” what the cases were about. If it were true that Step-Grandfather didn’t remember the underlying facts of the cases, he could have requested information from DCFS. See Utah Code Ann. § 62A-4a-1006(4)(c)(ii)(B) (explaining that DCFS can access the LIS to “respond to a request for information from a person whose name is listed in” the LIS).

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In Re J.E. 2023 UT App 3, Voluntary Declaration of Paternity

2023 UT App 3

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF J.E.,

A PERSON UNDER EIGHTEEN YEARS OF AGE.

D.E., Appellant, v. STATE OF UTAH, Appellee.

Opinion

No. 20210921-CA

Filed January 20, 2023

Third District Juvenile Court, Salt Lake Department

The Honorable Annette Jan No. 1198329

D.E., Appellant Pro Se

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

Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

Julie J. Nelson, Debra M. Nelson, Alexandra

Mareschal, and Kirstin Norman, Attorneys for

Amicus Curiae Utah Indigent Appellate Defense Division

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN FORSTER concurred.

HARRIS, Judge:

¶1 D.E. (Father) obtained—at least for a while—parental rights regarding J.E. (Child) when he and Child’s mother (Mother) duly signed and filed a voluntary declaration of paternity (the VDP). Later, however, genetic testing revealed that Father is not Child’s biological father. Based on those test results, the guardian ad litem (the GAL) appointed to represent Child raised a challenge to the VDP, which the juvenile court sustained, later issuing an order invalidating the VDP and declaring it “void.”

¶2 Father now challenges that order, asserting that the GAL (on behalf of Child) had no right under applicable law to challenge the VDP. We first determine that we have jurisdiction to consider Father’s appeal. And on the merits, we conclude that the juvenile court correctly determined that, under the circumstances presented here, Child has statutory standing to challenge the VDP. On that basis, we affirm the court’s decision to reach the merits of Child’s challenge and to sustain that challenge. But the court should not have declared the VDP “void,” and we remand for correction of the language used in the court’s order and for such other proceedings as might be appropriate.

BACKGROUND[1]

¶3 In 2021, Father and Mother were residing together—but not married—with three children: then-one-year-old Child and his two older siblings. All three children are Mother’s biological children, and Father’s paternity had been established as to the older two children. At the time, both Mother and Father were uncertain whether Father was the biological father of Child, because they were both aware that Mother had engaged in sexual activity with both Father and another man in 2019, around the time Child had been conceived. But neither Father nor any other man had established paternity with regard to Child.

¶4 In early 2021, Father was arrested and charged with aggravated assault involving domestic violence, as well as commission of domestic violence in front of a child, related to an incident in which Mother accused him of attempting to smother her with a pillow in front of the children. The charging document labeled Father a “habitual violent offender,” explaining that he had previously been convicted of domestic violence against Mother in connection with a 2019 incident. Father remained incarcerated on these new charges for several weeks. Mother also obtained a civil protective order against Father, which remained in effect for several months, until she asked for it to be dismissed.

¶5 A few weeks after Father’s arrest, Mother was arrested and incarcerated on charges of drug possession. Mother later admitted that she had been using methamphetamine. At that point, the Department of Child and Family Services (DCFS) filed a petition seeking custody of the children, and the court granted that request at a subsequent shelter hearing.

¶6 A month later, in May 2021, Mother remained incarcerated—she was eventually released in August—but Father had been released from jail after the criminal charges against him were dismissed. The record before us does not disclose the reasons for the dismissal of the criminal case, but the dismissal occurred on the date set for preliminary hearing, and it was entered without prejudice. Neither the State nor the juvenile court viewed the dismissal of the criminal charges as an exoneration of Father; indeed, the court eventually scheduled an evidentiary hearing to consider whether Father had committed domestic violence against Mother and, at the conclusion of that hearing, found that all three children were “neglected by” Father.

¶7 After his release from jail, Father requested that the children be returned to his custody. The court denied that request, but did order that Father be allowed supervised visitation with at least some of the children.

¶8 At another hearing a couple of weeks later, the GAL first raised the issue of Child’s paternity, and asked that the court order genetic testing to determine whether Father was indeed Child’s biological father. Neither Father nor Mother opposed this request, and the court therefore ordered that genetic testing take place, an order that necessarily required that Father, Mother, and Child all separately submit to genetic testing.

¶9 On August 5, 2021, Father submitted a biological sample for genetic testing. Mother and Child, however, did not submit biological samples until August 19. On August 18, the day before Mother and Child submitted their samples, Father and Mother signed and filed the VDP. On that form, they both swore that they “believe[d]” that Father was Child’s biological father. And Father answered “no” to a question asking whether “the birth mother, child, and biological father” had “submitted to genetic testing.” The Utah Office of Vital Records and Statistics accepted the VDP as valid, and that same day issued an amended birth certificate for Child, listing Father as Child’s father.

¶10 Following the filing of the VDP, Father (through counsel) filed a motion seeking visitation with Child, alleging that DCFS had been “not allowing” him to have visitation because the GAL “is opposed to the visits.” The GAL filed a response that asked the court to postpone its decision on visitation with Child until the results of the genetic testing were known. In that same opposition memorandum, the GAL raised a challenge to the VDP, specifically invoking sections 78B-15-302 and -307 of the Utah Code. In particular, the GAL asserted that Father had fraudulently answered some of the questions on the VDP, and asserted that, if the pending genetic testing excluded Father as Child’s biological father, the VDP could also be challenged on the ground that there had been a material mistake of fact. In reply, Father asserted that the VDP, which had been accepted by the Office of Vital Records and Statistics, gave him parental rights as Child’s father, and that he was therefore entitled to visitation. He also requested a hearing regarding the GAL’s challenge to the VDP.

¶11 In late September 2021, while Father’s motion for visitation was pending, the genetic test results came back and demonstrated that Father is not Child’s biological father.

¶12 Eventually, the court held an evidentiary hearing to consider Father’s motion for visitation. At that hearing, the court heard brief testimony, under oath, from both Father and Mother. After their testimony, the GAL asserted that Father should be denied visitation because, among other reasons, Father was not Child’s biological father. In connection with that argument, the GAL pressed the challenge to the VDP that she had raised in her opposition brief and asked for the VDP to “be declared void and be rescinded,” specifically asking for that relief to be “entered pursuant to [section] 78B-15-623” of the Utah Code (referred to herein as “Section 623”), a statutory provision the GAL had not mentioned in her opposition brief. Section 623 provides, in relevant part, that “[a] child is not bound by a determination of parentage” unless “the determination was based on an unrescinded declaration of paternity and the declaration is consistent with the results of genetic testing.” See Utah Code Ann. § 78B-15-623 (LexisNexis 2018). The GAL asserted that the VDP was subject to a challenge by Child because the results of the genetic testing indicated that Father was not Child’s biological father. In addition, the GAL pressed the arguments that had been raised in her brief, asserting that the VDP was fraudulent because Father had allegedly been less than candid when he stated that he “believe[d]” that he was Child’s father and when he answered “no” to the question on the form about genetic testing.

¶13 At the conclusion of the hearing, and after a brief recess, the court in an oral ruling granted the GAL’s request to invalidate the VDP, relying on Section 623 and on the fact that the genetic testing had conclusively determined that there was no biological relationship between Father and Child. Addressing Father, the court stated, “[Y]ou are not the father of [Child] at this point.” And the court declined Father’s invitation to order that he receive visitation with Child but, given Father’s established biological relationship with the other two children and given the fact that Father was “probably the only parental figure on the male side that [Child] has know[n],” the court nevertheless left the door open for DCFS to “allow” Father to have visitation with Child if DCFS believed that visitation would serve Child’s best interest. The court later signed a minute entry reflecting its oral ruling, therein declaring that the VDP “is void.”

ISSUES AND STANDARDS OF REVIEW

¶14 Father appeals the juvenile court’s decision to invalidate the VDP and to declare it void. At the center of Father’s challenge is his assertion that Child, by and through the GAL, does not possess statutory standing to challenge the VDP. This question is one of statutory interpretation, and on such matters we afford no deference to trial courts’ decisions. See State v. Outzen, 2017 UT 30, ¶ 5, 408 P.3d 334 (“We review questions of statutory interpretation for correctness, affording no deference to the [trial] court’s legal conclusions.” (quotation simplified)).

¶15 But before reaching the merits of Father’s appeal, we must first determine whether we have jurisdiction to adjudicate it.[2]

“Questions about appellate jurisdiction are questions of law” that, by definition, arise for the first time in the appellate setting. See Zion Village Resort LLC v. Pro Curb U.S.A. LLC, 2020 UT App 167,

¶ 21, 480 P.3d 1055 (quotation simplified); see also Powell v. Cannon, 2008 UT 19, ¶ 9, 179 P.3d 799 (“The question of whether an order is final and appealable is a question of law.” (quotation simplified)).

ANALYSIS

I. Jurisdiction

¶16 Before we may reach the merits of Father’s appeal, we must first assess whether we have jurisdiction to adjudicate it. For the reasons discussed, we conclude that we do.

¶17 “As a general rule, an appellate court does not have jurisdiction to consider an appeal unless the appeal is taken from a final order or judgment that ends the controversy between the litigants.” Copper Hills Custom Homes LLC v. Countrywide Bank, FSB, 2018 UT 56, ¶ 10, 428 P.3d 1133 (quotation simplified); see also Williams v. State, 716 P.2d 806, 807 (Utah 1986) (noting that one of the “traditional principles of appellate review” is “the final judgment rule,” which generally (subject to a few exceptions) prevents appellate courts from reviewing an appeal unless it comes “from a final judgment concluding all of the issues in the case”). The final judgment rule promotes efficiency by preventing the piecemeal litigation and seriatim appeals that would result if litigants were permitted, by right, to immediately appeal any adverse ruling by a trial court.

¶18 Conceptually, “the finality of an order in juvenile proceedings is determined the same way as the finality of an order in other courts.” In re A.F.,2007 UT 69, ¶ 3, 167 P.3d 1070 (quotation simplified). Indeed, in juvenile courts, as in other courts, a “final order is one that ends the current . . . proceedings, leaving no question open for further judicial action.” Id. (quotation simplified). Certainly, an order in a juvenile court case that completely resolved all matters as to all parties would be a final order, just as a similar order would be in a district court case.

¶19 But it is fair to say that, in appeals from juvenile court, finality is viewed somewhat more flexibly than in the district court context. “In the child welfare arena, the determining factor in deciding if an order is final and appealable is whether it effects a change in the permanent status of the child.” Id. Because a child’s status can change more than once, and because a “juvenile court frequently retains jurisdiction over cases [even] after some of the issues have been finally resolved,” see In re K.F., 2009 UT 4, ¶ 36, 201 P.3d 985 (quotation simplified), “in child welfare proceedings, unlike traditional civil cases, appeals may be heard from more than one final judgment,” In re A.F.,2006 UT App 200, ¶ 8, 138 P.3d 65, aff’d, 2007 UT 69, 167 P.3d 1070 (quotation simplified). Therefore, a determination of whether a juvenile court order is final and appealable “requires pragmatic analysis of the order itself.” Id. ¶ 9.

¶20 Under this “pragmatic analysis,” “it is the substance, not the form, of the . . . order that matters . . . because the determination whether an order is final and appealable turns on the substance and effect of the order.” Id. (quotation simplified). Any order that effects a “permanent change in the child’s status vis-à-vis the child’s parent” is considered final. See In re K.F., 2009 UT 4, ¶ 36. Particular types of orders that are considered final include those “entered upon disposition of an adjudicated petition of abuse, neglect, or dependency” and those “terminating parental rights,” see id. (quotation simplified), as well as “orders that otherwise relieve a party from further litigation,” see In re A.F., 2006 UT App 200, ¶ 10. On the other hand, shelter orders and orders that “merely terminate reunification services and change the child’s permanency goal to adoption” are not considered final because they contemplate “further judicial action” regarding the parent and the child. See In re K.F., 2009 UT 4, ¶ 37.

¶21 Father asserts that the juvenile court’s order declaring the VDP void is final and appealable because it “effectively terminated the parental rights statutorily conferred upon him” through the VDP. We agree with Father, as does the State. From a finality perspective, the court’s order declaring the VDP void is analogous to an order terminating parental rights, because the order canceled theretofore-valid parental rights that Father had (at least temporarily) acquired by virtue of filing a voluntary declaration of paternity that was accepted by the Office of Vital Records and Statistics. See Scott v. Benson, 2021 UT App 110, ¶ 22 n.4, 501 P.3d 1148 (“A [voluntary declaration of paternity] is valid and effective if it meets all the basic statutory requirements and is accepted by the Office of Vital Records.”), cert. granted, 509 P.3d 196 (2022). In analogous contexts, we have determined that similar orders are final and appealable. See In re A.S., 2007 UT App 72U, para. 1 (per curiam) (holding that an order dismissing a putative father “from the termination case and denying a motion for genetic testing” was final and appealable because it “dismissed [the putative father] as a party and relieved him from further litigation”); see also In re A.F., 2006 UT App 200, ¶ 10 (stating that “orders that otherwise relieve a party from further litigation” are appealable).

¶22 The fact that litigation regarding Child continues in the juvenile court is not dispositive of the question of appealability of the subject order. See In re E.L.F., 2011 UT App 244, ¶ 5, 262 P.3d 1196 (recognizing that a “juvenile court’s retention of jurisdiction over a child does not necessarily defeat finality”); see also In re K.F., 2009 UT 4, ¶ 36 (stating that a “juvenile court frequently retains jurisdiction over cases [even] after some of the issues have been finally resolved” (quotation simplified)). The fact that the juvenile court left the visitation door slightly ajar for Father likewise does not defeat finality, under the unique circumstances presented here; the court’s order deprived Father of all parental rights, leaving DCFS with sole discretion to determine whether, and to what extent, Father may visit Child.

¶23 Applying a pragmatic analysis here, we conclude that the subject order, by eliminating all of Father’s claimed parental rights, effected a “permanent change in the child’s status vis-à-vis” Father, see In re K.F., 2009 UT 4, ¶ 36, and effectively ended Father’s involvement in the case. Under these circumstances, the order from which Father appeals must be considered final, and we therefore have jurisdiction to consider the merits of his appellate challenge.

II. The Merits of Father’s Appeal

¶24 We begin our analysis of the merits of Father’s appeal with a discussion of voluntary declarations of paternity, and by explaining how Father did—at least for a time—secure valid parental rights regarding Child. We then list some of the ways in which voluntary declarations of paternity can be challenged, and conclude that Child (through the GAL) had standing to raise one such challenge, and that Child’s challenge has merit. Accordingly, we conclude that the juvenile court correctly sustained Child’s challenge to the VDP, but should not have referred to it as “void.”

A

¶25 There are a number of ways for a parent to establish a legally valid parent-child relationship, many of which are “based on the notion that parents should generally have parental rights regarding their biological children.” See Scott v. Benson, 2021 UT App 110, ¶ 18, 501 P.3d 1148, cert. granted, 509 P.3d 196 (2022); see also Lehr v. Robertson, 463 U.S. 248, 256–57 (1983) (recognizing “[t]he intangible fibers that connect parent and child”); Stanley v. Illinois, 405 U.S. 645, 651 (1972) (holding that a biological father’s interest “in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest,” constitutional protection). “In most cases, parental status is established, based on an assumed biological connection, simply by presumption of circumstance.” Scott, 2021 UT App 110, ¶ 19. For example, in the absence of a valid gestational agreement, a mother establishes a parental relationship with any child to whom she gives birth. See Utah Code Ann. § 78B-15-201(1)(a)(i) (LexisNexis 2018).

¶26 Some fathers also obtain parental rights by presumption of circumstance. For instance, a father-child relationship is established when a man “and the mother of the child are married to each other” when the child is born. Id. §§ 78B-15-201(2)(a), -204(1)(a). But a father who is not married to the mother of the child must take additional steps to establish his paternity.

¶27 One avenue open to unmarried biological fathers is to establish paternity by declaration, an option that—crucially— requires the written consent of the child’s mother. See id. §§ 78B15-301, -302. A successful declaration of paternity, “duly signed and filed, has the same effect as a judicial determination of paternity.” In re S.H., 2005 UT App 324, ¶ 15, 119 P.3d 309. To be effective, both the mother and declarant father must sign the declaration “in the presence of two witnesses” and make several statements “under penalty of perjury.” See Utah Code Ann§ 78B15-302(1). Of particular relevance here, the parties must also attest that the child “whose paternity is being declared” does not have a presumed, adjudicated, or declarant father, and they must “state whether there has been genetic testing and, if so, that the declarant man’s paternity is consistent with the results of the testing.” See id. § 78B-15-302(1)(d), (e). “A declaration of paternity shall be considered effective when filed and entered into a database established and maintained by the Office of Vital Records.” Id. § 78B-15-302(9).

¶28 Father chose this avenue; he and Mother jointly signed and filed the VDP on August 18, 2021, after answering several written questions under penalty of perjury. As already noted, they both averred that they “believe[d]” Father to be Child’s biological father, and Father answered “no” to a question asking whether “the birth mother, child, and biological father [had] submitted to genetic testing.” The Office of Vital Records and Statistics accepted the VDP as valid, and that same day issued an amended birth certificate for Child, listing Father as Child’s father. At that point, Father’s parental rights regarding Child were definitively established. See id. § 78B-15-305(1) (LexisNexis 2018) (stating that “a valid declaration of paternity filed with the Office of Vital Records is equivalent to a legal finding of paternity of a child and confers upon the declarant father all of the rights and duties of a parent”); see also Scott, 2021 UT App 110, ¶ 22 n.4 (“A declaration is valid and effective if it meets all the basic statutory requirements and is accepted by the Office of Vital Records.”); In re S.H., 2005 UT App 324, ¶ 15 (stating that a declaration of paternity “duly signed and filed, has the same effect as a judicial determination of paternity”).

B

¶29 Declarations can, however, be challenged after they have been accepted by the Office of Vital Records and Statistics. See Scott, 2021 UT App 110, ¶ 23 (“Voluntary declarations of paternity are, however, subject to challenge.”). Applicable statutes permit several different types of challenges to validly filed declarations. For example, a declaration may be challenged as “void” if it fails to meet certain threshold criteria regarding the existence of another potential father. See Utah Code Ann. § 78B15-302(3) (referred to herein as “Section 302”). Alternatively, a “signatory” of a declaration may rescind it within sixty days, without specifying any reason. Id. § 78B-15-306(1) (referred to herein as “Section 306”). Further, after the rescission period has expired, a declaration may be challenged by certain parties “on the basis of fraud, duress, or material mistake of fact.” See id. § 78B-15-307 (referred to herein as “Section 307”). And as relevant here, Section 623 provides that “[a] child is not bound by a determination of parentage . . . unless . . . the determination was based on an unrescinded declaration of paternity and the declaration is consistent with genetic testing.” See id. § 78B-15-623(2).

¶30 Before the juvenile court, the GAL raised a challenge to the VDP and, by the time of the hearing, had elected to ground that challenge largely in Section 623.[3] The court accepted the GAL’s Section 623 argument, and Father challenges that decision here on appeal. For the reasons that follow, we conclude that the juvenile court correctly found merit in the GAL’s Section 623 challenge.

¶31 Section 623 begins by stating that “a determination of parentage is binding on . . . all signatories to a declaration . . . of paternity . . . and . . . all parties to an adjudication [of parentage] by a tribunal.” Id. § 78B-15-623(1). The next section of the statute provides as follows:

(2) A child is not bound by a determination of parentage under this chapter unless:

(a) the determination was based on an unrescinded declaration of paternity and the declaration is consistent with the results of genetic testing;

(b) the adjudication of parentage was based on a finding consistent with the results of genetic testing and the consistency is declared in the determination or is otherwise shown; or

(c) the child was a party or was represented in the proceeding determining parentage by a guardian ad litem.

Id. § 78B-15-623(2). The precise question presented is whether Section 623 gives a child the right to challenge a putative father’s duly filed declaration of paternity on the basis that the declaration is inconsistent with genetic testing results. We hold that it does.

¶32 The question before us is, at root, one of statutory interpretation. “When interpreting a statute, our primary objective is to ascertain the intent of the legislature, the best evidence of which is the plain language of the statute itself.” Taylor v. Taylor, 2022 UT 35, ¶ 28, 517 P.3d 380 (quotation simplified). In examining the language of a statute, “we do not view individual words and subsections in isolation; instead, our statutory interpretation requires that each part or section be construed in connection with every other part or section so as to produce a harmonious whole.” Penunuri v. Sundance Partners Ltd., 2013 UT 22, ¶ 15, 301 P.3d 984 (quotation simplified); see also State v. Bess, 2019 UT 70, ¶ 25, 473 P.3d 157 (“We read the plain language of the statute as a whole and interpret its provisions in harmony with other statutes in the same chapter and related chapters.” (quotation simplified)). And if this exercise “provides a workable result, we need not resort to other interpretive tools, and our analysis ends.” Torrie v. Weber County, 2013 UT 48, ¶ 11, 309 P.3d 216 (quotation simplified). In accordance with these principles, we begin our analysis with an overview of the relevant statute’s structure.

¶33 The statute in question is the Utah Uniform Parentage Act (the Act), codified at Title 78B, Chapter 15 of the Utah Code. See Utah Code Ann. §§ 78B-15-101 to -902 (LexisNexis 2018). Section 623’s reference to “a determination of parentage under this chapter,” then, refers to any determination of parentage made under any of the various parts of the Act. See id. § 78B-15-623(2) (emphasis added). Part 3 of the Act governs voluntary declarations of paternity, see id. §§ 78B-15-301 to -313, and Part 6 of the Act governs judicial adjudications of parentage, see id. §§ 78B-15-601 to -623. Indeed, the term “determination of parentage,” as used in Section 623, has a specific statutory definition: our legislature has provided that a “determination of parentage” means either (a) “the establishment of the parent-child relationship by the signing of a valid declaration of paternity under Part 3,” or (b) “adjudication [of parentage] by a tribunal” under Part 6. See id. § 78B-15-102(9).

¶34 In this case, any parental rights claimed by Father are derived not from any judicial adjudication of paternity but, rather, from the VDP. Indeed, the Act is clear with regard to the effect of a properly filed declaration of paternity: “a valid declaration of paternity filed with the Office of Vital Records is equivalent to a legal finding of paternity of a child and confers upon the declarant father all of the rights and duties of a parent,” without the necessity of initiating judicial proceedings or obtaining a court order. See id. § 78B-15-305(1); see also In re S.H., 2005 UT App 324, ¶ 15 (stating that a declaration of paternity “duly signed and filed, has the same effect as a judicial determination of paternity”). Phrased in the language of Section 623, then, the “determination of parentage” at issue here took place pursuant to Part 3, not Part 6, and it occurred not in any courtroom but at the front counter (or its metaphorical online equivalent) at the Office of Vital Records and Statistics.

¶35 As noted, Section 623 provides that “[a] child is not bound by a determination of parentage” unless at least one of three criteria are met. See Utah Code Ann. § 78B-15-623(2). With regard to the specific “determination of parentage” at issue here, none of the three listed criteria are met.

¶36 First, the “determination of parentage” at issue in this case was not “based on an unrescinded declaration of paternity” that is “consistent with genetic testing.” See id. § 78B-15-623(2)(a). To be sure, the determination of parentage here was based on an “unrescinded declaration of paternity”; after all, Father’s only claim to paternity was made through the VDP, and neither Father nor Mother had exercised any rights they had, pursuant to Section 306, to rescind the VDP within sixty days of signing it. See id. § 78B-15-306. But the unrescinded VDP at the heart of Father’s paternity claim turned out to be entirely inconsistent with the genetic test results that came back in September 2021. For this reason, the “determination of parentage” at issue here was not based on a declaration of paternity that was “consistent with the results of genetic testing.” Id. § 78B-15-623(2)(a) (emphasis added). Thus, the first criterion is inapplicable.

¶37 The second criterion is likewise inapplicable, for two reasons. First, this criterion applies only to an “adjudication of parentage,” see id. § 78B-15-623(2)(b), and no such adjudication occurred here, where Father’s parental rights, if any, are derived under Part 3, from the VDP, rather than through a judicial process. And second, this criterion also depends upon “genetic testing” being “consistent with” the adjudication of parentage and, as already noted, the genetic testing in this case excluded Father from any biological relationship with Child. See id.

¶38     Finally, the third criterion has no application either. That criterion applies if “the child was a party or was represented in the proceeding determining parentage by a guardian ad litem.” Id. § 78B-15-623(2)(c). To be sure, Child was represented by the GAL in the proceedings before the juvenile court, and is represented by the GAL in this appeal. But Child was not involved, in any way, in the “proceeding determining parentage” at issue here. Again, that “proceeding” occurred on August 18, 2021, when Father and Mother appeared at the Office of Vital Records and Statistics to fill out the VDP, and when that office accepted the VDP they filed. That proceeding took place entirely outside of court, and Child had no voice or representation therein. Accordingly, the third criterion is likewise inapplicable.

¶39 Because none of the three exceptional criteria apply here, Section 623 provides that Child is “not bound by [the] determination of parentage” in this case. See id. § 78B-15-623(2) (emphasis added). In our view, this language must necessarily mean that Child has the right to challenge the VDP.[4]

¶40 The words “not bound by” are not defined in the Act. In such a situation, we “interpret the statutory language according to the plain meaning of its text.” See O’Hearon v. Hansen, 2017 UT App 214, ¶ 24, 409 P.3d 85 (quotation simplified). And in doing so, we give the words the meaning they are given in ordinary daily usage. See State v. Rincon, 2012 UT App 372, ¶ 10, 293 P.3d 1142 (“When construing a statute, words that are used in common, daily, nontechnical speech, should, in the absence of evidence of a contrary intent, be given the meaning which they have for laymen in such daily usage.” (quotation simplified)).

¶41 In our view, the words “not bound by” must include a right to challenge the determination of parentage. A child who has no right to challenge the determination in question, even in a case where none of the three statutory criteria applied, would effectively be bound by it. Stated another way, in order to be “not bound by” something, there must exist a way to get out from under its obligations. After all, the words “not bound by” would be deprived of all effective meaning if a child had no right to challenge the determination of parentage at issue. Even Father and the amicus curiae both acknowledge, in recently filed briefs, that Child has statutory standing to challenge the VDP under Part 6. For these reasons, we conclude that Section 623 provides Child the right to challenge the VDP—an unrescinded declaration of paternity upon which Father’s claim to paternity is based—on the ground that the declaration is inconsistent with “the results of genetic testing.” See Utah Code Ann. § 78B-15-623(2)(a).

¶42 Once it is established that Child has the right to mount a challenge to the VDP, we must turn to the merits of that challenge. And Father, here on appeal, does not seriously contest the merits of Child’s attack on the VDP. Father instead acknowledges, as he must, that the genetic testing excluded him as Child’s biological father, and that the genetic testing is, therefore, inconsistent with his claims to paternity under the VDP. Accordingly, the juvenile court correctly determined that Child’s Section 623 challenge to the VDP was meritorious.

¶43 But while the juvenile court’s ruling is correct on its merits, the court used incorrect nomenclature to describe the effect of its ruling. The court ruled that the VDP “is void,” thereby apparently purporting to invalidate it ab initio and render it without force or effect from the date it was filed. This was incorrect. A challenge to a declaration of paternity based on inconsistency with genetic testing is a challenge alleging “a material mistake of fact.” See id. § 78B-15-307(5) (stating that “genetic test results that exclude a declarant father . . . constitute a material mistake of fact”). And as we explained in Scott, the effect of a successful challenge on this basis—as opposed to a challenge grounded in Section 302 or Section 306—is “not that the declaration of paternity is rendered void from its inception” but, instead, that the “declaration will be set aside, on a going-forward basis.” See 2021 UT App 110, ¶ 40.

¶44 In our view, a challenge brought by a child under Section 623 alleging that genetic testing is inconsistent with a declarant father’s declaration is substantively similar to the type of challenge we examined in Scott. Neither challenge is grounded in Sections 302 or 306, statutory provisions that expressly provide that voidness will result from a successful challenge. And both challenges arise from the same set of circumstances, namely, genetic testing that does not match a putative father’s claims to paternity. We therefore hold that, where a child makes a successful Section 623 challenge to a declaration of paternity, the result is that the declaration “will be set aside, on a going-forward basis,” and will not be declared void from the date of its inception. See id. As applied to this case, these principles dictate that Father had legal parental rights for some three months, from August 18 through November 16, 2021, but that his parental rights ended, prospectively, with entry of the court’s order sustaining Child’s Section 623 challenge.

¶45 Finally, both Father and the amicus curiae—in recently filed supplemental briefs—raise the potential applicability of section 78B-15-608 of the Utah Code (referred to herein as “Section 608”), a statutory section that allows a court, under certain conditions, to “disregard genetic test results that exclude the . . . declarant father.” Father asserts, for the first time in his supplemental brief, that he should be entitled to a hearing to determine whether the genetic test results eliminating him as Child’s biological father should be “disregarded” pursuant to Section 608. But Father makes this request for the first time in this recent brief; he did not raise a Section 608 defense to the GAL’s challenge before the juvenile court, nor did he mention Section 608 in either his opening or reply brief on appeal. Under these circumstances, Father has raised this legal theory far too late for us to consider it in the context of this appeal. Cf. Viertel v. Body Firm Aerobics LLC, 2022 UT App 96, ¶ 11, 516 P.3d 791 (“Appellants are not permitted to raise matters for the first time in a reply brief.” (quotation simplified)).

¶46 The amicus curiae, for its part, asserts that it was “mandatory” for the juvenile court to have conducted a Section 608 inquiry, including a “best interest of the child” analysis, even in the absence of a request by Father for it to do so; in this vein, the amicus curiae argues that the juvenile court committed plain error by not engaging in that analysis sua sponte. In particular, the amicus curiae rests its argument on statutory language stating that the court “shall consider the best interest of the child.” See Utah Code Ann. § 78B-15-608(2) (emphasis added). But in our view, the amicus curiae overreads the statute.

¶47 As we interpret it, Section 608 does not compel a juvenile court, in every instance in which any challenge to a VDP is sustained, to undertake a Section 608 analysis even if none of the parties request it. Litigants are entitled to select the specific defenses they raise to an opponent’s claim. The general rule, applicable in both district and juvenile courts, is that parties must request specific relief in order for a court to award it. Our judicial process ordinarily does not require courts to step in and examine legal theories that the parties have not themselves raised. See State v. Johnson, 2017 UT 76, ¶ 14, 416 P.3d 443 (“Under our adversarial system, the parties have the duty to identify legal issues and bring arguments before an impartial tribunal to adjudicate their respective rights and obligations.”). In this case, Father—who was represented by counsel at the time—elected to defend against the GAL’s challenge to the VDP by calling into question the GAL’s (or

Child’s) right to even mount the challenge. Father did not raise Section 608 as a possible defense, and he did not ask the juvenile court—in the event it concluded that the GAL had standing to challenge the VDP—to disregard the results of the genetic testing pursuant to Section 608.

¶48 We take the amicus curiae’s point that, whenever a party does specifically invoke Section 608 and ask a court to disregard genetic test results, that court must “consider the best interest of the child” in determining whether to do so. See Utah Code Ann. § 78B-15-608(2). But courts do not have an obligation to sua sponte raise Section 608, and undertake its concomitant best-interest analysis, in every case in which they are asked to consider a challenge to a VDP.[5] See Utah Stream Access Coal. v. VR Acquisitions, LLC, 2019 UT 7, ¶ 41, 439 P.3d 593 (stating that “judges are neutral arbiters—not advocates,” and that judges “keep [themselves] out of the business of second-guessing the pleading decisions of the parties”); cf. Scott, 2021 UT App 110, ¶ 43 (noting that the lower court, in that case, turned to a Section 608 analysis only at the “request” of one of the parties). If a putative parent wants a court to take the rather drastic and unusual step of disregarding the results of genetic testing, it will ordinarily be the parent’s responsibility to raise the issue.

¶49 And even assuming, for the purposes of the discussion, that plain error review is available here, see Kelly v. Timber Lakes Prop. Owners Ass’n, 2022 UT App 23, ¶ 42 n.10, 507 P.3d 357 (suggesting that plain error review may be available in certain types of civil cases, including termination of parental rights cases), we reject the amicus curiae’s assertion that, on the record before us, the juvenile court committed plain error by not invoking Section 608 sua sponte. Plain error occurs only when a court commits an obvious prejudicial error. See Johnson, 2017 UT 76, ¶ 20. Here, the juvenile court committed no obvious error. Nothing in Section 608 indicates that it is to be applied in every case, even sua sponte, regardless of whether any party ever invokes it. And the amicus curiae cites no appellate court case that so indicates. Where the law is not clear, a court does not commit obvious error. See State v. Dean, 2004 UT 63, ¶ 16, 95 P.3d 276 (“To establish that the error should have been obvious to the trial court, [a litigant] must show that the law governing the error was clear at the time the alleged error was made.”).

¶50 For these reasons, the juvenile court did not plainly err by not sua sponte undertaking an analysis pursuant to Section 608. And because Father did not raise that issue either before the juvenile court or in his initial brief, we decline to address Father’s argument that the court should have conducted such an analysis. We offer no opinion, however, regarding whether the issue could properly be raised after remand, especially given the fact that the juvenile court left the door open to Father’s involvement in the case going forward.

CONCLUSION

¶51 We have jurisdiction to consider the merits of Father’s appeal, because the juvenile court’s order canceled the parental rights that Father had temporarily acquired by filing the VDP and thereby effected a permanent change in Child’s status regarding Father. But on the merits of that appeal, we conclude that the juvenile court correctly sustained the GAL’s Section 623 challenge to the VDP, even if the court should not have used the word “void” to describe the result of its ruling. We therefore affirm the juvenile court’s decision to sustain the GAL’s challenge to the VDP, but remand with instructions for the court to modify its order to indicate that it has prospective effect only, and for such other proceedings as may be appropriate.

 

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

[1] “We recite the facts in a light most favorable to the juvenile court findings.” In re K.J., 2013 UT App 237, ¶ 2 n.2, 327 P.3d 1203 (quotation simplified).

[2] After recognizing this jurisdictional question, we issued a Sua Sponte Motion for Summary Disposition, explaining that this appeal was being considered for summary disposition “on the basis that this court lacks jurisdiction because the order appealed from was not a final, appealable order.” We then ordered the parties to submit briefing on the jurisdictional question, which they did. Later, we also provided the parties the opportunity to submit supplemental briefing on the statutory standing question. Father and the GAL submitted supplemental briefs, and an amicus curiae submitted a brief on this topic as well. We appreciate the assistance of the parties and the amicus curiae in submitting supplemental briefing.

[3] As noted already, the GAL’s pre-hearing briefing before the juvenile court invoked Sections 302 and 307, but not Section 623. In their briefing on appeal, the parties include some discussion of other potential avenues for challenge. No party invokes Section 306, and both the State and the GAL appear to concede that the GAL—apparently because Child is not a “signatory” to the VDP—does not have statutory standing to challenge the VDP under Section 307. But the State does appear to invoke Section 302 in connection with its argument that the VDP was “fraudulently executed,” and on that basis appears to ask us to affirm the juvenile court’s ruling on this alternative ground. We have serious doubts about the merits of this argument, primarily because none of the three criteria for voidness set forth in Section 302 are present here, but also because any evidence of fraud on the part of Father or Mother is thin at best: they were not sure whether Father was Child’s biological parent, but had a basis to “believe” that he was, and Father’s answer about the state of genetic testing was technically correct, because on August 18 neither Mother nor Child had yet submitted samples for genetic testing. But we need not delve deeper into the State’s alternative argument, because we affirm the substance of the court’s ruling under Section 623.

[4] After all, Part 6 of the Act expressly provides that “the child” may maintain “a proceeding to adjudicate parentage,” and thereby challenge a parent’s paternity. See Utah Code Ann. § 78B-15-602(1). All parties to this appeal agree that a child has statutory standing under Part 6 to challenge a parent’s paternity.

[5] The amicus curiae runs into the same problem with its other best-interest related argument. It points out that guardians ad litem have authority created by statute, and that they are appointed “to represent the best interest of a minor.” See Utah Code Ann. § 78A-2-803(1)(a)(i) (LexisNexis Supp. 2022). It asserts that the GAL in this case, by challenging Father’s paternity, acted outside Child’s best interest, pointing out that Child has no other father figure in his life, and offering its view that “it is difficult to see how it can be in a child’s best interest to challenge the paternity of the only father figure participating in the case.” We acknowledge this argument, and agree with the amicus curiae that guardians ad litem have a statutory obligation to carefully consider whether the actions they take on a child’s behalf are in the child’s best interest. But ordinarily any challenge to a guardian ad litem’s actions as being outside a child’s best interest must come from one of the parties rather than from a court sua sponte, and must be raised in the first instance in the district or juvenile court. No such challenge was levied here by any party before the juvenile court, rendering the merits of any such challenge inappropriate for appellate review.

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In re G.B. – 2022 UT App 98

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]

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 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 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 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 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 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.”

·         “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.

¶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 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 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, 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 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 FatherBut 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:

·         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 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 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,

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.

¶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]

 

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.

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In re J.L… 2022 UT 12 – termination of parental rights

2022 UT 12 

IN THE SUPREME COURT OF THE STATE OF UTAH 

STATE OF UTAH, in the Interest of J.A.L. and J.O.L.,
Persons Under Eighteen Years of Age 

J.L. and J.A.,
Appellants, 

STATE OF UTAH,
Appellee. 

No. 20200271 

Heard September 16, 2021
Filed February 24, 2022 

On Certification from the Court of Appeals 

Fifth District Juvenile, Iron County
The Honorable Troy A. Little
No. 1161641, 1161642 

Attorneys:1  

Alexandra Mareschal, J. Frederic Voros, Jr., Julie J. Nelson, Salt Lake
City, Christa G. Nelson, Cedar City, for appellant J.L. 

Colleen K. Coebergh, Salt Lake City, Candice N. Reid, Cedar City,
for appellant J.A. 

Sean D. Reyes, Att’y Gen., Carol L. C. Verdoia, John M. Peterson,
Asst. Att’ys Gen., Salt Lake City, for appellee 

Martha Pierce, Salt Lake City, Guardian ad Litem
for J.A.L. and J.O.L. 

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court in
which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE, and
JUSTICE PETERSEN joined. 

ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court: 

¶1 This is an appeal from a juvenile court order terminating the parental rights of the mother and father of two children. The Division of Child and Family Services has been engaged with this family since at least July 2018. A range of support services has been provided over time. The children were removed from the mother’s custody in December 2018 and placed in foster care. And at various times both the father and mother have been subject to a court order prohibiting contact between them and to orders requiring treatment for domestic violence, substance abuse, and mental health issues. 

¶2 The Division initially pursued a permanency goal of reunification with the parents. When reunification failed, the Division petitioned to change the goal to adoption. After a hearing and an order granting the new permanency goal, the children were moved to a kinship placement with the father’s brother in Arkansas. The uncle had agreed to adopt the children. And after a subsequent hearing on the termination of parental rights, the juvenile court entered an order terminating the parental rights of both the mother and father. 

¶3 In the termination proceeding, the juvenile court found that both parents were “unfit” and had “neglected” the children. The court based its determination on factors listed in Utah Code section 78A-6-508(2)—concluding that the children were “abused and neglected” by “[t]he domestic violence perpetrated by the Father and the Mother’s failure to protect the children,” and that the parents’ substance abuse “render[ed] [them] unable to care for the children.” 

¶4 After finding statutory grounds to terminate, the court determined that termination was “strictly necessary” in the “best interest” of the children. It concluded that the children could not be returned home “today”—or “at this point”—because the mother and father had failed to sufficiently rehabilitate themselves. And it held that the children’s “tremendous need for permanency and stability” could not be met while preserving the parents’ rights within a permanent custody and guardianship arrangement. 

¶5 Six weeks after the termination order was entered, the adoptive placement with the uncle failed. The children returned to state custody in Utah. 

¶6 After the kinship placement failed, the father and mother filed motions for post-judgment relief. The mother sought 60(b)(6) relief in light of the “extraordinary circumstances” of the failure of the kinship placement. The father filed a 60(b)(6) motion on the same grounds. He also sought relief under 60(b)(5), asserting that the failed kinship placement meant that the judgment was “no longer equitable.” The juvenile court denied the motions. 

¶7 The mother and father appealed. The court of appeals certified the matter to this court based on a perceived need for our review of “a challenge to the current appellate standard of review in child welfare proceedings” and to consider “an issue regarding the effect of statutory changes on supreme court case law.” 

¶8 The mother and father raise different claims of error on appeal. The mother challenges only the juvenile court’s findings, made at an evidentiary permanency hearing and allegedly at a subsequent review hearing, that she appeared “under the influence” at various hearings. She asserts that a judge is not qualified to make such findings without expert testimony. And she contends that the court denied her due process of law by making the findings without giving her notice and an opportunity to be heard. 

¶9 The father challenges the juvenile court’s best interest determination2 and the court’s denial of his motions for post-judgment relief. As an initial matter, the father asks us to conduct de novo review of termination proceedings—and overturn the deferential standard of review established in State ex rel. B.R., 2007 UT 82, 171 P.3d 435. He also asks us to require specific factual findings and legal conclusions in parental rights termination orders. Regardless of our decision on the appropriate standard of review, the father contends that the juvenile court erred in concluding that termination of the father’s rights was “strictly necessary” to promote the “best interest” of the children. 

¶10 We affirm in part and reverse and vacate in part. First, we note that the mother’s claims are unpreserved and hold that she has failed to carry the burden of establishing plain error. Second, we reject the father’s request that we abandon a deferential standard of review of a best interest determination but find threshold legal errors in the juvenile court’s best interest analysis—in the assessment of whether the father had made sufficient progress in his rehabilitation under Utah Code section 78A-6-509(1)(b), and in the assessment of whether termination of parental rights is “strictly necessary” under Utah Code section 78A-6-507. Third, we vacate and remand for a new best interest determination under the law as clarified in this opinion. In so doing, we note that the mother failed to highlight the legal errors identified by the father in her briefs on appeal but conclude that the mother’s rights should be on the table on remand in the unique circumstances of this case. 

I 

¶11 The mother challenges the juvenile court’s findings that she appeared “under the influence” at court hearings. She asserts that the judge is not qualified to make such findings without expert testimony. And she claims that the court infringed her right to due process by making these findings without notice that the observations were being made and without affording her an opportunity to respond. 

¶12 None of these points was preserved in the juvenile court, however. To succeed on appeal, the mother would therefore need to make a showing of plain error—that “(1) an error exists; (2) the error should have been obvious to the trial court; and (3) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome.” State v. Low, 2008 UT 58, ¶ 20, 192 P.3d 867 (citations and internal quotation marks omitted).3 And the mother has failed to carry that burden. 

¶13 We have previously upheld a juvenile court’s legal conclusions based on observations of “outbursts” made in open court. In re T.E., 2011 UT 51, ¶¶ 44–45, 266 P.3d 739. And the juvenile court in this case did not even go so far as to make a legal conclusion. It relied on its observation of the mother in court to require her to be subjected to testing for substance use—a follow-up under a standing order requiring ongoing substance abuse testing.4 So we do not see how it could have been error—and certainly not an obvious error—for the court to use its observations as a basis for such testing where the mother’s sobriety was already at issue. 

¶14 Nor do we see a basis for concluding that any alleged error was prejudicial. In the termination order, the court refers to its “personal observations” of the mother only once—as a single consideration in a set of reasons supporting one of the five grounds for termination found by the court. And earlier in the proceedings, the court continued reunification services for the mother despite making a concurrent finding that “[t]hree quarters of the times the Mother is in court it appears she [is] under the influence of drugs”— and despite terminating reunification services as to the father in the same evidentiary permanency hearing. The mother has not established that there is any likelihood that her parental rights would not have been terminated if the juvenile court had not ordered testing on the basis of its observations, or if it had afforded the mother the right to respond that she asserts as a matter of due process. 

II 

¶15 The father challenges the termination of his parental rights on two grounds. He contends that the juvenile court erred in (a) concluding that termination of his rights was “strictly necessary” in the “best interest” of the children; and (b) denying his motions for post-judgment relief. We reverse on the first ground and decline to reach the second because it is mooted by our threshold decision. 

A 

¶16 The father prefaces his challenge to the juvenile court’s best interest analysis with a request that we overrule our longstanding case law on the standard of review of parental rights termination orders—requesting that we replace the established deferential standard of review with a de novo review for correctness. But we rejected parallel requests in two recent decisions. See In re G.D., 2021 UT 19, ¶¶ 1, 3, 491 P.3d 867; State ex rel. E.R., 2021 UT 36, ¶ 13, 496 P.3d 58. And the father has not identified a persuasive ground for reconsidering these decisions. 

¶17 In E.R. we clarified that the best interest inquiry is a fact-like “mixed determination of law and fact” that is subject to deferential review. 2021 UT 36, ¶¶ 17, 22. Appellate deference, of course, is not absolute. The juvenile court’s best interest analysis may be set aside if it is “against the ‘clear weight of the evidence.’” Id. ¶ 6. It is also subject to reversal where it is premised on a threshold legal error. See id. ¶ 16 (noting that we “afford [n]o deference” to the juvenile court’s “analysis of abstract legal questions” (alteration in original) (citation and internal quotation marks omitted)). 

¶18 We reverse the juvenile court’s termination of the father’s parental rights on this basis. The juvenile court’s order was infected by two legal errors. And those errors foreclose the usual basis for deference to the conclusion that termination of the father’s rights was “strictly necessary” in the “best interest” of the children under Utah Code section 78A-6-507(1) (2020).5 See Rocky Ford Irrigation Co. v. Kents Lake Reservoir Co., 2020 UT 47, ¶ 78, 469 P.3d 1003 (citation omitted) (holding that a district court’s findings were not owed deference where they were “infected by legal error”). 

1 

¶19 In terminating the father’s parental rights, the juvenile court concluded that it would be “neglectful” to “[r]eturn[] the children to the Father today.” (Emphasis added.) It also found that a reunification of the children with the father would introduce a significant “safety risk” “at this time.” (Emphasis added.) And it raised the concern that the father might not “be successful outside of treatment” given the lack of “any indication of future success” based on “the Father’s past.” 

¶20 These statements are premised on legal error. In a case where the child is not in the parent’s physical custody, the court must consider a set of “specific considerations” in assessing whether termination is strictly necessary in the best interest of children. UTAH CODE § 78A-6-509. And the listed considerations include “the effort the parent or parents have made to adjust their circumstances, conduct, or conditions to make it in the child’s best interest to return [the child to the] home after a reasonable length of time.” Id. § 78A-6509(1)(b) (emphasis added). 

¶21 The statute does not establish a specific timeframe for parents to “adjust their circumstances, conduct, or conditions.” But it does afford a parent a “reasonable length of time” to make any necessary adjustments. And that requires the court to consider whether any needed adjustments were made within a reasonable time. 

¶22 The court retains a measure of discretion in deciding on the length of the “reasonable” time.6 But by statute it must exercise that discretion. And the juvenile court failed to do so here. It held that the father “ha[d] failed to appropriately adjust” his “circumstances, conduct, or conditions to make return in the children’s best interest.” In so doing, it failed to consider whether he had had a “reasonable length of time” to do so.7 And it exacerbated the problem by focusing on static assessments that it would be “neglectful” to “[r]eturn[] the children to the Father today” and would introduce a significant “safety risk” if they returned to him “at this time.” 

2 

¶23 The juvenile court also premised its termination decision on concerns about the “tremendous need for permanency and stability” of the children. It considered the possibility of preserving the father’s legal rights while awarding permanent custody to a guardian. But it rejected that move on the ground that it “would not . . . offer the same degree of permanency as an adoption,” given that a permanent guardianship could be terminated at the request of the guardian or at least subject to visitation by the father. And it held that this “lack of stability would be harmful for the children.” 

¶24 This too was error. The court was right to consider the feasibility of a permanent guardianship. See In re B.T.B., 2020 UT 60, ¶¶ 66–67, 472 P.3d 827 (explaining that the “strictly necessary” analysis requires consideration of the possibility of “feasible options” like awarding custody to a permanent guardian (citation and internal quotation marks omitted)). But it fell into legal error in concluding that this option would not provide the “same degree of permanency as an adoption.” That is not the question under our law. A permanent guardianship by definition does not offer the same degree of permanency as an adoption. And there is always some risk that the permanent guardianship could come to an end, or be affected by visitation by the parent. If these categorical concerns were enough, termination and adoption would be strictly necessary across the board. But such categorical analysis is not in line with the statutory standard. 

¶25 By statute, the juvenile court must assess whether a permanent guardianship can “equally protect[] and benefit[]” the children in the case before it. G.D., 2021 UT 19, ¶ 75 (citation omitted). That standard is not met by the categorical concern that a permanent guardianship is not as stable or permanent as an adoption. It requires analysis of the particularized circumstances of the case before the court. No such analysis is presented here. And the court’s categorical dismissal of the possibility of a permanent guardianship is a further ground for reversal of the juvenile court’s decision. 

B 

¶26 The above legal errors undermine our confidence in the juvenile court’s basis for terminating the father’s parental rights. They also foreclose the need for us to consider the father’s challenge to the denial of his motions for post-judgment relief. The correctness of the denial of those motions is mooted by our decision to reverse in light of the legal errors in the parental termination order. 

III 

¶27 The father has established that the juvenile court’s termination order was infected by the above-noted legal errors. That leaves the question of the effect of those errors on our disposition on appeal. We conclude that a remand to the juvenile court is appropriate. And we hold that both parents’ legal rights should be on the table on remand. 

A 

¶28 The juvenile court’s threshold legal errors foreclose the usual basis for deference to its factual findings and mixed determinations. In the face of such errors, an appellate court has at least two options. It may reverse and remand to the lower court for rehearing under a correct legal standard.8 Or it may review the lower court’s findings under a non-deferential standard of review.9 We take the former course of action here in light of the important role that our juvenile courts play in applying a complex body of law to a matter encompassing an extensive factual and procedural record. 

B 

¶29 In the parties’ briefing on appeal, only the father identified the above-noted legal errors as a basis for reversal. The mother’s appeal was limited to her challenge to the juvenile court’s findings that she appeared “under the influence” in court. 

¶30 The father urges this as a basis for concluding that the mother is foreclosed from participating in the proceedings on remand, or from having her rights on the table in a new “best interest” analysis in line with the refinements in our law set forth above. See supra ¶¶ 21–22, 24–25. He notes that a claim is generally waived if not raised on appeal. See State v. Johnson, 2017 UT 76, ¶¶ 15–16, 416 P.3d 443. And he asks us to hold that the mother forfeited her stake in a remand under claims of legal error that she failed to advance on appeal. 

¶31 The father’s position finds some threshold footing in our law. As a general rule, our courts respect the prerogatives of the parties in deciding which claims to pursue (or forgo) in litigation. See Utah Stream Access Coalition v. VR Acquisitions, LLC, 2019 UT 7, ¶¶ 36–37, 439 P.3d 593. In deference to those prerogatives, and in the interest of judicial economy and repose, the parties are generally stuck with the moves they make in litigation. Patterson v. Patterson, 2011 UT 68, ¶¶ 15–17, 266 P.3d 828. Our courts do not lightly second-guess the parties by reviving a claim they have forfeited by their pleading or briefing decisions.10  

¶32 The mother presumably would be foreclosed from participating in the proceedings on remand if she had failed to file an appeal.11 But the mother did file an appeal. And the father has cited no case law that controls in the unusual circumstances presented here—where two appellants filed briefs on appeal and one of them has identified a legal error that affected not just both of the appellants but also the interests of other parties to this proceeding (the children). 

¶33 In these circumstances, we are reluctant to give conclusive, controlling effect to the briefing decisions of the parties. The juvenile court’s legal missteps infected its decision to terminate both the father’s and the mother’s legal rights.12 And those missteps may bear significant consequences not just for the parents but for their children. The rights and interests of the parents and the children are not only substantial but intertwined. On remand, the decision whether to terminate one parent’s rights could be affected by the decision whether to terminate the other’s rights. And the decision whether one or both parents should retain their rights may have substantial bearing on the analysis of the best interest of the children.13  

¶34 With these concerns in mind, we conclude that the mother’s briefing decisions should not foreclose her from participating in the case on remand. Both parents’ legal rights should be on the table. 

¶35 In remanding, we are not foreclosing the possibility that concerns expressed in the juvenile court’s order—such as the risk and effects of domestic violence—may be a sufficient basis for termination of the parents’ legal rights. Nor are we suggesting that the parents have not yet had a “reasonable length of time” to adjust their “circumstances, conduct, or conditions.” On these and other points, we are simply holding that the juvenile court’s opinion is too affected by legal error to merit deference on appeal. And we are sending the matter back to the juvenile court to exercise its discretion under a correct formulation of the law. 

IV 

¶36 We vacate the juvenile court’s order terminating the parental rights of the parents. In so doing, we leave in place any threshold orders not challenged on appeal—such as the court’s order establishing the parents’ unfitness. But we remand the case for rehearing on the question whether termination of their parental rights is strictly necessary in the best interest of the children, under the governing legal standard as clarified in this opinion. 

http://www.utcourts.gov/opinions/view.html?court=supopin&opinion=In re J.L…20220224.pdf 

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What are the grounds for filing for a divorce in Utah?

First, you need to understand that Utah, like every other state in the U.S. has what are known as a “no-fault divorce law”. No-fault divorce means that you don’t have to plead or show that your spouse committed any kind of marital “fault” to obtain a divorce. Previous to the creation of no-fault divorce laws, you could not get a divorce unless you could prove your spouse had committed one or more of the recognized faults constituting grounds for divorce.  

Utah’s no-fault ground for divorce is the “irreconcilable differences of the marriage” basis (Utah Code § 30-3-1(h)). If you assert irreconcilable differences as your ground for divorce, you do not have to prove any kind of fault to obtain a divorce on that ground. Because it doesn’t matter whether your spouse wants a divorce too– you can prove that there are irreconcilable differences of the marriage by simply saying that you subjectively feel that there are irreconcilable differences. Sometimes a court might ask you to explain in more detail what the irreconcilable differences in your marriage are, but courts will accept something as simple and ambiguous statements like “we are not compatible anymore” or “our differences prevent the marriage from continuing” or “our differences have rendered the marriage unsalvageable”.  

Fault-based grounds for divorce still exist, which means that one can still assert one or more of these faults as grounds for divorce, but it’s not necessary to assert fault-based grounds to obtain a divorce. 

I have provided for you below Section 30-3-1 of the Utah Code, which articulates both the no-fault ground and all the other legally recognized grounds for divorce in Utah. 

Utah Code § 30-3-1.  Procedure — Residence — Grounds. 

(1) Proceedings in divorce are commenced and conducted as provided by law for proceedings in civil causes, except as provided in this chapter. 

(2) The court may decree a dissolution of the marriage contract between the petitioner and respondent on the grounds specified in Subsection (3) in all cases where the petitioner or respondent has been an actual and bona fide resident of this state and of the county where the action is brought, or if members of the armed forces of the United States who are not legal residents of this state, where the petitioner has been stationed in this state under military orders, for three months next prior to the commencement of the action. 

(3) Grounds for divorce: 

(a) impotency of the respondent at the time of marriage; 

(b) adultery committed by the respondent subsequent to marriage; 

(c) willful desertion of the petitioner by the respondent for more than one year; 

(d) willful neglect of the respondent to provide for the petitioner the common necessaries of life; 

(e) habitual drunkenness of the respondent; 

(f) conviction of the respondent for a felony; 

(g) cruel treatment of the petitioner by the respondent to the extent of causing bodily injury or great mental distress to the petitioner; 

(h) irreconcilable differences of the marriage; 

(i) incurable insanity; or 

(j) when the husband and wife have lived separately under a decree of separate maintenance of any state for three consecutive years without cohabitation. 

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

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After a divorce, should my kids be with me or with the mom?

First, you need to understand that you’re asking the wrong question.

Child custody is not a zero-sum game; otherwise stated, when parents divorce, or when unmarried parents separate, where you get the idea that the children must be in the custody of one parent or the other, but not in the joint custody of both?

Perhaps it has come from the idea you been taught most of your life that children of divorced or separated parents must spend the majority of their time in the custody of one parent. I’m 52 years old at the time I write this, and throughout my youth I was taught that very thing.

Not only were we taught the children should spend most of their time in the custody of just one parent, but we were taught that the parent that should be the “custodial” or primary custodial” parent was the mother. Almost always the mother. The mother, unless it could be proven that the mother was heinously unfit to have custody of the children. It was not uncommon to hear about perfectly good and decent fathers not being awarded custody or not being awarded joint physical custody of their children even when mom had a substance abuse problem or was physically and/or emotionally abusive.

The idea that children could be or should be cared for equally or as near to equally as possible by both parents was in the not so distant past unthinkable. The idea of children being cared for by their fathers was believed to be emotionally and psychologically damaging to children, especially very young children. The more research that is conducted on the subject, however, the more we learn that such thinking is wrong. I’ll be the first to admit that, especially in American culture, it seemed somewhat intuitive to believe that children might need or fare better in the care of their mothers instead of their fathers, but it turns out that’s false.

Unfortunately, the legal profession and the courts have been very slow to accept, let alone embrace, this fact. But things are changing in the legal profession and the courts, and at a comparatively rapid pace.

Now (I write this May 27, 2021), things are different, or I should say they are becoming different. As well they should be. Just as this country realized it made no sense to make the black man or woman sit at the back of the bus and that all citizens deserve fair and equal treatment under the law, it makes no sense to deny children of as much love and care and companionship of both of their loving, fit parents as possible.

To crib from C.S. Lewis a bit, asking which fit parent the children are better off with is like asking which blade of the scissors we’re better off with.

When children have to loving, caring parents who are physically and emotionally and financially capable of providing the minimally necessary levels of care their children require, there is no to deny children the benefits of being reared by both parents equally. Period.

I am a divorce lawyer in Utah. For those of you who are currently facing or who are contemplating a possible divorce or child custody dispute in Utah, you may find these statutory criteria that the courts are supposed to apply when making child custody determinations:

Utah Code:


Section 10
. Custody of a child — Custody factors.

Section 10.1. Definitions — Joint legal custody — Joint physical custody.

Section 10.2. Joint custody order — Factors for court determination — Public assistance.

And these sections are worth reviewing to get an idea of what the definitions of child custody are, whether that be legal custody or physical custody:


Section 33
. Advisory guidelines.

Section 34. Parent-time — Best interests — Rebuttable presumption.

Section 34.5. Supervised parent-time.

Section 35. Minimum schedule for parent-time for children 5 to 18 years old.

Section 35.1. Optional schedule for parent-time for children 5 to 18 years of age.

Section 35.2. Equal parent-time schedule.

Section 35.5. Minimum schedule for parent-time for children under five years of age.

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

https://www.quora.com/After-a-divorce-should-my-kids-be-with-me-or-with-the-mom/answer/Eric-Johnson-311

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Does a spouse have the right to see a DUI report?

First, if you are referring to a police report of a DUI citation and/or arrest, in most jurisdictions such records are public record, and thus available not only to your spouse, but to any other member of the public.

Second, if the question of whether you were cited and/or convicted of DUI arises in a divorce or child custody case because your spouse and/or the court has determined that alcohol or other substance abuse concerns are relevant to the child custody award or alimony award or other issues, then even if your DUI report were not already public record, it would likely be discoverable in the course of litigating the case and preparing for trial, so that both your spouse and the court would have that information available to them when arguing over which parent should receive child custody and/or how much time each parent should spend with the parties’ children, whether alimony should be tempered by your substance and/or spousal abuse history, etc.

Bottom line: records of a citation for, arrest for, conviction of, and or incarceration resulting from DUI are almost certainly discoverable in most divorce and child custody cases.

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

https://www.quora.com/Does-a-spouse-have-the-right-to-see-a-DUI-report/answer/Eric-Johnson-311?prompt_topic_bio=1

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I have custody of my child. He’s refusing to come home. What now?

I have custody of my child. He left to go to his mom’s last Friday for the weekend. He is refusing to come home because he wants to live there. What happens now?

I will answer this question in the context of my experience as a lawyer in the jurisdiction where I practice divorce and family law, which is Utah.

And that answer is: realistically speaking, probably nothing.

As a divorce and family law attorney, I have been on both sides of this issue, meaning I’ve represented the parent with custody of the child who won’t come back, and I’ve also represented the noncustodial parent to whose house the child has “fled” and won’t leave.

This is a weird area of Utah law because you’ll hear the legislature and the courts tell you that children don’t get to choose where they live, and then when children do that very thing (i.e., refuse to live where the court orders them to live), the courts find themselves essentially powerless to change anything. At least that’s my experience over the 24 years I’ve been in practice.

Briefly, if the children are old enough that they cannot be physically controlled by a parent and forced into a car from the noncustodial parents house back to the custodial parent’s house, then the courts are usually not going to intervene. This means that a court will, in fairness and realistically, tell the parents that pragmatically there’s really nothing that they ought to do to enforce the child custody order if the child himself or herself is old enough to put up a fight and/or call the police and/or DCFS and report you for child abuse if you try to force them into the car to go back to the custodial parent’s house. Besides, the child who is old enough to put up a fight is also likely old enough to run away from the noncustodial parents home if anyone tries to force him or her to reside with a parent with whom the child doesn’t want to live.

And so, you get in a situation where the child is disobeying the court’s custody order, but most courts either don’t have the cats to hold the child in contempt of court or don’t feel it is appropriate to sanction a child who won’t comply with the court’s child custody orders. Yet these same courts will also often refuse to modify the child custody award because they don’t want to acknowledge that children, of all people, have the de facto power to defy court orders with impunity.

Next, you need to be aware of the possibility that your custodial parent ex will try to blame you for your child refusing to return to the custodial parent’s home, regardless of whether that is true. Many times, a perfectly innocent noncustodial parent will tell his or her acts and the court, “Look, I’ve told the child what the court order is and that both our and I are expected to comply. But the child refuses to comply anyway. Now what you want me to do? Kick the child out and lock the door behind him?” Some courts sympathize with that predicament, others don’t buy it. Which means it is entirely possible that you would be held in contempt of court for doing absolutely nothing wrong, if the court believes you enticed or coheirs the child to say he or she wants to stay with you. So you need to keep that in mind.

So if you are a noncustodial parent of a child who refuses to reside with the court ordered custodial parent, then you must ask yourself a few questions:

First, if the child refusing to live with the custodial parent because the child is a spoiled brat who has no legitimate reason for refusing to live with the custodial parent? If the answer is yes, then you as the noncustodial parent have both a legal and moral obligation to talk the child into going back to the custodial parent’s home, or if persuasion doesn’t work, imposing limitations and restrictions and punishments upon the child so that the child won’t get the impression that he or she is in charge.

Second, if the child is refusing to reside with the custodial parent because the custodial parent is truly neglectful and/or abusive, and if you have independently verifiable proof of this, you have the option of petitioning the court to modify the child custody award, changing the custodial parent from your ex to you. While that petition is pending, your child may refuse to return to the custodial parent’s home, and for reasons at least you and the child know to be valid. Whether the court allows your child to stay with you depends upon how your court views the situation and what is best for the child.

If you find yourself in this kind of situation, whether you are the custodial parent or the noncustodial parent, this is one of those situations where you need to seek good legal advice immediately, to help ensure that neither you nor the child is victimized.

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

https://www.quora.com/I-have-custody-of-my-child-He-left-to-go-to-his-moms-last-Friday-for-the-weekend-He-is-refusing-to-come-home-because-he-wants-to-live-there-What-happens-now/answer/Eric-Johnson-311?prompt_topic_bio=1

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Child refuses to leave noncustodial parent’s house. What happens now?

I am the noncustodial parent. Our child came to my house for parent-time and now refuses to leave because he wants to live with me. What happens now?

I will answer this question in the context of my experience as a lawyer in the jurisdiction where I practice divorce and family law, which is Utah.

This is a weird area of Utah law because you’ll hear the legislature and the courts tell you that children don’t get to choose where they live, and then when children do that very thing (i.e., refuse to live where the court orders them to live), the courts find themselves essentially powerless to change anything. At least that’s my experience over the 24 years I’ve been in practice.

Now before some of you start licking your lips and scheming, thinking, “I’m the noncustodial parent, but I can change that by simply telling our child to choose to refuse to return to the custodial parent’s house,” you need to be aware of the realities.

If you’re the noncustodial parent and your child or children are under the age of 14 or so, and they claim that they don’t want to live with the custodial parent, there’s a very good chance that the court is going to believe that you are a puppet master who coached the children or otherwise induced or coerced them into claiming they want to live with you. That may not be true, but you’re going to be met with that kind of skeptical presumption. So if you are the noncustodial parent with young children who you assert claim they don’t want to live with the custodial parent, you have an uphill battle ahead of you. If you are the noncustodial parent and a father, you have an almost impossibly uphill battle ahead of you.

If, however, your children are 14 years or older, and you are the noncustodial parent with whom your children say they want to live, it will be harder for your ex and/or the court to presume that the children are lying and/or don’t have good reasons for wanting to live with you. Again, if you are the father making this claim, your claim will be met with more skepticism than if you were the noncustodial mother making such a claim. Why is this? Because there is a pernicious belief in the legal system that fathers are generally worse parents than our mothers, that fathers don’t want custody of their children, and that the only reason fathers would seek custody of their children is to avoid paying child support. As a result of these beliefs, fathers who seek custody of their children are met with not just skepticism, but often derisive skepticism. Forewarned is forearmed.

So, if you are a noncustodial parent who is good and decent, and your child honestly and sincerely comes to you saying, “mom/dad, I can’t stand living with the custodial parent anymore, and I want to live with you,” how do you proceed?

First, if the child refusing to live with the custodial parent because the child just wants to spend more time with you and/or less time with the custodial parent, and the custodial parent is not neglecting or abusing the child in any way, then you as the noncustodial parent have both a legal and moral obligation to talk the child into going back to the custodial parent’s home, or if persuasion doesn’t work, imposing limitations and restrictions and punishments upon the child so that the child won’t get the impression that he or she is in charge. At the same time, the custodial parent needs to acknowledge the child’s desires to spend more time with the noncustodial parent as being a legitimate concern that needs to be addressed and resolved, and that usually means the custodial parent agreeing to give the child and the noncustodial parent more time together. If the custodial parent refuses to do the right thing, you may ask whether it’s wise to petition the court for a modification of the child custody award, so that you and the child get more time together. Unfortunately, odds are that if you file a petition to modify child custody and the only basis for your petition is the child’s desire to spend more time with you, you will probably lose. While it is technically and conceivably possible to win such a petition, usually the courts in Utah require more than just the child’s desire as the basis for a modification. And what form does this “more” take? Typically, you would have to show that the custodial parent is neglecting and/or abusing the child to get a modification of the child custody award.

Second, if the child is refusing to reside with the custodial parent because the custodial parent is truly neglectful and/or abusive, and if you have independently verifiable proof of this, you have the option of petitioning the court to modify the child custody award, changing the custodial parent from your ex to you. While that petition is pending, your child may refuse to return to the custodial parent’s home, and for reasons at least you and the child know to be valid. Whether the court allows your child to stay with you depends upon how your court views the situation and what is best for the child.

If you find yourself in this kind of situation, whether you are the custodial parent or the noncustodial parent, this is one of those situations where you need to seek good legal advice immediately, to help ensure that neither you nor the child is victimized.

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

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Does a spouse have the right to see a DUI report?

Does a spouse have the right to see a DUI report?

First, if you are referring to a police report of a DUI citation and/or arrest, in most jurisdictions such records are public record, and thus available not only to your spouse, but to any other member of the public.

Second, if the question of whether you were cited and/or convicted of DUI arises in a divorce or child custody case because your spouse and/or the court has determined that alcohol or other substance abuse concerns are relevant to the child custody award or alimony award or other issues, then even if your DUI report were not already public record, it would likely be discoverable in the course of litigating the case and preparing for trial, so that both your spouse and the court would have that information available to them when arguing over which parent should receive child custody and/or how much time each parent should spend with the parties’ children, whether alimony should be tempered by your substance and/or spousal abuse history, etc.

Bottom line: records of a citation for, arrest for, conviction of, and or incarceration resulting from DUI are almost certainly discoverable in most divorce and child custody cases.

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

https://www.quora.com/Does-a-spouse-have-the-right-to-see-a-DUI-report/answer/Eric-Johnson-311?prompt_topic_bio=1

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How exactly does shared custody work? Does the child end up being like that kid from Jacqueline Wilson’s “The Suitcase Kid”?

How exactly does shared custody work? Does the child end up being like that kid from Jacqueline Wilson’s “The Suitcase Kid”?

The child certainly can be like the child (Andrea) from Jacqueline Wilson’s “The Suitcase Kid,” if under a shared parenting arrangement 1) the child divides his/her time living with both the father and mother and 2) each parent wants the child to live only with him/her and tries to persuade the child to do so.

But shared custody (also known as joint custody or—when the child spends equal time with both parents—joint equal or 50/50 custody) does not inexorably condemn the child to have a “Suitcase Kid” experience, as long as the parents place the happiness and mental and emotional health of the child above the parents’ respective self-interest. Treat your child the way you would want to be treated, were you in the child’s shoes!

It’s not popular these days to state what we all know: the best thing a fit parent can do for a child is to rear that child in a family in which that parent is married happily to the child’s other parent. Short of that, the next best thing a fit parent can do for a child is to ensure the child is reared as much as possible by both parents. Children of fit parents love both parents and want to be loved and cared for by both parents as much as possible (duh). Do it for them! They deserve it. It’s the least that divorced or separated parents can do for their children.

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

https://www.quora.com/How-exactly-does-shared-custody-work-Does-the-child-end-up-being-like-that-kid-from-Jacqueline-Wilsons-The-Suitcase-Kid/answer/Eric-Johnson-311

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Why does someone need an attorney when they can just defend themselves in court?

Why does someone need an attorney when they can just defend themselves in court (pro se)?

Why does someone need an attorney when they can just defend themselves in court?

It really depends on how you define “need” here.

First, understand that no litigant (except a litigant in certain circumstances who is determined to be mentally incapacitated or disabled, in which case the court may appoint an attorney for such a litigant) is required or can be forced to have be represented by an attorney.

This means you cannot be forced to hire an attorney, you cannot be forced to have an attorney appointed for you in criminal cases, even if you qualify for an attorney to be appointed for you.

So, there is no legal mandate that you be represented by an attorney, no “need” to be represented by an attorney in that sense. You won’t be arrested or fined for not being represented by an attorney.

So, from the foregoing we see that you have the absolute right (with the exception of disability/incapacity) to represent yourself in court (that’s known as proceeding “pro se”, which is Latin for “for oneself”).

If, however, prevailing in the litigation is your sole or primary objective, and if you are not well-versed/skilled/confident regarding the law and court procedures, you may determine that you cannot win without an attorney. In that respect, you may determine that you “need” an attorney. In this sense, most people need an attorney. You may have heard the old saw, “A man who represents himself, has a fool for a client.” Abraham Lincoln is reputed to have put it this way: “He who serves as his own counsel has a fool for a lawyer and a jackass for a client.” The reason this is true is because the legal system is not as simple, as non-dysfunctional (sorry, I know that’s a clunky term, but I cannot think of a clearer way to make my point, or as fair as you believe or want to believe. A lawyer is not only helpful for his/her knowledge of the law and court procedures, but also for his/her experience and ability to guide you down the dark, twisted, uphill, rocky, often counterintuitive and dangerous path that is the legal system.

If the stakes are such that you don’t mind bearing the consequences of losing the case (in other words, you can afford to pay and don’t mind paying the fine(s) and/or don’t mind doing the time in jail/prison), then it’s likely you don’t “need” an attorney; otherwise, a prudent litigant needs an attorney.

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

https://www.quora.com/Why-does-someone-need-an-attorney-when-they-can-just-defend-themselves-in-court/answer/Eric-Johnson-311?prompt_topic_bio=1

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How do I fight a DUI without a lawyer?

How do I fight a DUI without a lawyer?

You don’t. Too much at stake. Too hard to do on your own. I’m a lawyer (a divorce and family law attorney), and although I don’t drink, if I were charged with DUI (even if I knew I was innocent), I wouldn’t try to defend myself without the help of a skilled and experienced criminal defense attorney who knows DUI law and defense backward and forward.

It’s a shame that lawyers are so expensive. I get it. But a DUI can cripple you for years, even for life, sometimes. You have to defend yourself hard because no one else in the system will go to bat for you. The prosecutors and judge aren’t interested in your story (they’ve heard them all and they’re jaded beyond belief).

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

https://www.quora.com/How-do-I-fight-a-DUI-without-a-lawyer/answer/Eric-Johnson-311?prompt_topic_bio=1

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How can we change the court system in order to make divorces easier on the children?

How can we change the court system in order to make divorces easier on the children?

In my opinion:

  • Institute a “loser pays the prevailing party’s attorney’s fees” rule.
  • make divorce cases more litigant focused and tailored to meeting their needs and the needs of their family, instead of tailoring the cases for the convenience of the courts and lawyers;
  • focus making divorce cases take less time to work their way through the court system. This reduces anxiety and emotional distress, reduces costs, promotes just and equitable outcomes, and helps prevent other abuses of the legal system caused by delays;
  • require judges to make commendably detailed written findings of fact and conclusions of law to support their rulings on every issue in a divorce case;
    • rather than make the standard a negative one (i.e., the ruling stands unless it can be shown to be an abuse of discretion) require that they show that their rulings are as equitable as they could reasonably make them for the parties and their children under the circumstances;
  • subject to rigorous, forensic psychological examination and evaluation every litigant in a divorce case in which child custody is an issue and where accusations of any kind of physical, emotional/psychological, sexual, financial, or any other kind of abuse of spouse or children are made.
    • Find out whether the allegations are true
    • Find out if the accusations are sincere or motivated by malevolence and/or intent to defraud the court
    • Why? Because:
      • if you are falsely accused of abuse, it can too often be the seriousness of the allegations, as opposed to the substance of the evidence, that will determine how your judge rules.
      • far too often courts, when confronted with allegations of abuse, take the easy way out and err on the side of caution, the “better safe than sorry” approach (and thus treat those accused of being abusive as abusive) instead of having the guts to say, “the evidence is insufficient to support these abuse allegations, and so if you really are a domestic violence abuse victim, I can’t find as a matter of fact that you are.” That’s a gross miscarriage of justice when that happens, but it’s what some judges do in these circumstances.
  • All but mercilessly punish litigants and witnesses who lie to the court. The purpose of our justice system is to get to the truth and then apply the law based upon the facts as best we can know them. “Perjury is considered a serious offense, as it can be used to usurp the power of the courts, resulting in miscarriages of justice.

https://www.quora.com/How-can-we-change-the-court-system-in-order-to-make-divorces-easier-on-the-children/answer/Eric-Johnson-311

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I’m a year sober. Can my alcoholism hurt my child custody chances?

I’m an alcoholic who endured domestic violence in my marriage. My husband exploited my addiction when he wanted an excuse to replace me. Now he’s trying to use it as a means to get custody. Can this damage my case even though I’m a year sober?

Yes, oh heavens yes, this can damage your case. This does not mean that it inevitably will damage your case, but it certainly can, if the court believes that your addiction history somehow constitutes a serious danger or a serious risk of harm to the children now.

Now before you throw your hands up in despair and quit, understand that while you cannot change the past, you still have a lot going for you.

There’s nothing you can do to change your past, but given that your past also includes a year of sobriety behind you, the court is likely willing to let you try to persuade it that you can be trusted with the care and custody of your children going forward. Give the court every reason to give you at least that losing chance.

Being one year sober—assuming that you can prove this to the satisfaction of the court— is not a fact the court can or should easily dismiss. At the same time, being a year sober does not mean that you should no longer be subject to scrutiny.

To show that you are serious about kicking addiction, truthfully acknowledge the past and do not try to explain it away. At the same time, do not allow anyone to dwell on the past unduly.

Be willing to subject yourself to random drug and/or alcohol screenings (depending upon what your addictions are or were) to show the court that you have nothing to hide and that you have the humility to acknowledge that your ex-spouse and the court have good reason to be concerned about your parental fitness if you were to fall back into addiction. Being willing to subject yourself to random testing also shows that you put your children’s best interest above your self-interest and convenience.

Continue to see a therapist and attend AA or other programs. Show your ex and the court that you are not afraid to get help and that receiving help is not a badge of shame, but of strength and maturity for a parent in your position.

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