BLANK

Category: Emotional abuse

My Wife Is Divorcing Me Because I Am Not Rich Enough. She Said It Will Take Me Years to Make Her Feel Financially Secure. I Was There for Her When She Had Mental Breakdowns. What Should I Do?

If your wife really is divorcing you, and not merely threatening to divorce you, because 1) you are not rich enough to suit her, and 2) you are not a lazy bum and you are doing your best to support her financially as a spouse, then rejoice–good riddance to bad rubbish. Cut your losses now. You will be better off without her. I know you may think “I’ll never find someone as wonderful as she is again,” but a woman who would divorce you for not being rich enough is a woman who does not love you, who will not be the support you need and deserve, and who will only be a burden and a detriment to you and your children (if and when they would come along).

If your wife is not really divorcing you, but is threatening to divorce you, and claiming it is because 1) you are not rich enough to suit her, and 2) you are not a lazy bum and you are doing your best to support her financially as a spouse, then you should ask yourself the following questions:

  1. Is she really that shallow? Or is the “you’re not rich enough” perhaps a pretext for other feelings and concerns of hers? You mentioned that you were there for her mental breakdowns–is the “your not rich enough” symptomatic of a mental or emotional disorder?
  2. Is this perhaps a matter of youthful inexperience and naivete? A lack of maturity?
  3. Did she grow up rich and doesn’t understand that it’s not the norm?
  4. Did she grow up poor and goes through life terrified of staying poor?
  5. Is she deluded?

If her “I’m going to divorce you because you’re not rich” is not really what she’s thinking of feeling, it’s worth talking with her and with a minister and/or someone whose lifestyle you both wish to emulate and find out what’s realistic and what’s not, what’s achievable and what’s not. If your wife can’t accept reality, then see my answer above. It’s tragic that she would chuck a good man just because he’s not rich enough, but that’s not your problem nor is it a problem you can solve for her.

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

https://motherinlawmysteriesandconflicts.quora.com/My-wife-is-divorcing-me-because-I-am-not-rich-enough-She-said-it-will-take-me-years-to-make-her-feel-financially-secure

Tags: , , , , , ,

2024 UT App 54 – Tilleman v. Tilleman – custody factors, income, fees

2024 UT App 54 – Tilleman v. Tilleman

THE UTAH COURT OF APPEALS

MICHAEL ROBERT TILLEMAN, Appellant, v. MICHAL CHRISTINE TILLEMAN, Appellee.

Opinion No. 20210637-CA Filed April 11, 2024

Fourth District Court, Provo Department

The Honorable M. James Brady No. 164402522

Julie J. Nelson, Attorney for Appellant, Douglas B. Thayer, Andy V. Wright, and Jessica Griffin Anderson, Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.

ORME, Judge:

¶1        Michael Robert Tilleman (Father) and Michal Christine Tilleman (Mother) were married and share one child (Child). Following rather contentious divorce proceedings, the trial court awarded sole legal custody of Child to Mother but awarded the parties joint physical custody. The court also imputed federal minimum wage income to Mother for child support purposes, and it awarded her attorney fees and costs.

¶2        On appeal, Father makes various arguments challenging the court’s legal custody award. He also contends that the court abused its discretion in imputing federal minimum wage income to Mother and in awarding her attorney fees and costs. Although we affirm several aspects of the court’s legal custody award, we nevertheless hold that the court abused its discretion in applying the wrong legal standard and accordingly reverse and remand for the court’s consideration of all the statutorily mandated custody factors. We also reverse the court’s imputation of Mother’s income and its attorney fee award and remand for further proceedings.

BACKGROUND[1]

¶3        Mother and Father married in 2013, and Child was born a little over a year later. In 2016, following a separation, Father filed a petition for divorce. This was soon followed by Mother’s counter-petition for divorce. The trial court characterized the ensuing litigation as “contentious” and the parties as “unusually accusatory, intransigent, and uncooperative.” We limit our recounting of the divorce proceedings to facts relevant to the issues raised on appeal.

¶4        In 2018, the court entered a stipulated, bifurcated decree of divorce reserving for trial, in relevant part, the issues of custody, parent-time, child support, and attorney fees. Although the parties each initially sought sole physical custody and joint legal custody of Child, by the time of trial they had each amended their pleadings to request sole physical and sole legal custody of Child.

¶5        In conjunction with her counter-petition for divorce, Mother also filed a motion asking that the court order Father to undergo a psychological examination under rule 35 of the Utah Rules of Civil Procedure “to properly address his ability to parent” Child.[2] The motion alleged that Father “has exhibited intense anger toward [Mother] and has engaged in mental and emotional abuse,” that “such anger has been exhibited toward” Child, and that he “may be suffering from mental health conditions.”

¶6        Father opposed Mother’s rule 35 motion and denied its allegations. In turn, he asked the court to order that Mother undergo a rule 35 evaluation, alleging that she “has been verbally and physically abusive towards” him, that she “is unable to control her anger and aggressions towards” him, and that “recent irrational and inappropriate actions, behaviors, and instability indicate that she may be suffering from some form of mental illness.”

¶7        In 2017, at a hearing on temporary orders, Mother’s counsel informed the trial court that the parties had stipulated, among other things, “that either party can request and . . . the other party will participate in a Rule 35 mental health exam as long as the requesting party pays the cost up front.” Accordingly, the court’s temporary order included a provision stating that “[e]ither party may request the other party to participate in [a] Rule 35 examination at the requesting party’s expense.”

¶8        Mother subsequently provided Father with a list of three potential rule 35 evaluators, of which Father selected one (First Expert) to conduct his exam. When First Expert requested that Father sign medical releases for his psychological health records, Father refused. In response, Mother filed a motion requesting that the court order Father “to sign and execute all necessary medical releases, upon presentation by [First Expert], so that [Father’s] Rule 35 mental examination can proceed as expeditiously as possible.” At a hearing before a commissioner on the matter, Father argued that he never agreed to sign medical releases and that his understanding of the stipulation was “that he was agreeing to an independent, objective, standardized psychological test.” He also argued that releasing his medical records “prejudices him down the road” because “it allows information that would not otherwise be admissible to become admissible.”

¶9        In ruling on the motion, the commissioner first stated that because the trial court—and not a jury—would be the finder of fact in this case, he did not consider prejudice “to be a significant issue.” Next, in addressing the scope of the rule 35 exam, the commissioner stated that based on his decades of experience interacting with mental health professionals, “the one thing that they all assure me is true [is that] the best predicter of future behavior is past behavior.” The commissioner also noted that the parties had not submitted affidavits from professionals indicating what their usual practice is for such evaluations. Thus, the commissioner recommended, “If it is the Rule 35 examiner’s professional opinion that certain information would assist him in completing his evaluation/report, then both parties shall cooperate in good faith and sign whatever releases for records or information the evaluator wants[.]” Father objected to the commissioner’s recommendation, but the trial court overruled his objection and ordered him to sign the requested medical releases.

¶10 Upon completion of the rule 35 evaluation, First Expert reached the following conclusions, as summarized by the trial court. First Expert noted that “Father was so guarded and defensive when he took the psychological testing that credible information from testing is not available.” First Expert did not observe Father with Child as part of the evaluation. Nevertheless, First Expert concluded, among other things, that Father exhibited “varying degrees” of several negative personality traits; that he “is a very persistent person,” which when “utilized to intimidate and control others” can cause substantial harm to himself and others; and that he “tends to place his own interests before those of others and is not invested in cooperative relationships.” See also infra note 5. First Expert also recommended against joint legal custody of Child.

¶11      In anticipation of trial, Father filed a motion in limine to exclude First Expert’s testimony, contending that his “report and his corresponding testimony have not been shown by [Mother] to be reliable, based on sufficient facts or data, and reliably applied to the facts as required by rule 702 of the Utah Rules of Evidence.” See Utah R. Evid. 702(b). In support of his motion, Father included a report from his own expert (Second Expert) who reviewed the rule 35 evaluation. Second Expert opined, among other things, that “the methodology employed” by First Expert “did not comport with generally accepted standards of practice.” He further stated that First Expert’s “recommendation against joint legal custody is concerning because there is no indication the purpose of the evaluation was to aid the Court in determining custody.”

¶12 Following a hearing, the court ruled that First Expert would be permitted to testify at trial because his “report and his . . . procedures, his methodology, and his data gathering and his qualifications meet that low threshold of showing an indicia of reliability.” But because First Expert’s “qualifications and methodology don’t meet the requirements for a custody evaluation,” the court limited his testimony by precluding him from offering his opinion on that subject at trial.

¶13 Toward the end of 2020, the court held a ten-day bench trial, after which it entered thirty-three pages of findings of fact and conclusions of law. In addressing custody, the court prefaced its findings by discussing Utah Code sections 30-3-10(2) and 30-3-10.2(2), which govern child custody determinations. Section 30-3-10(2) states, with our emphasis, that “[i]n determining any form of custody and parent-time . . . , the court shall consider the best interest of the child and may consider among other factors the court finds relevant, the following for each parent” and then lists various factors. The court interpreted that section to mean that it “is not required to make findings on all factors listed in” that section. Further, section 30-3-10.2(2) provides, again with our emphasis, that “[i]n determining whether the best interest of a child will be served by ordering joint legal custody or joint physical custody or both, the court shall consider the custody factors in Section 30-3-10 and” additional factors listed in section 30-3-10.2(2). The court stated that it understood the interplay between the two sections to mean that when considering joint legal or physical custody of a child, it is “obligated to address the enumerated factors in” section 30-3-10.2(2), but that its consideration of each factor listed in section 30-3-10(2) is not mandatory.

¶14      The trial court then proceeded to make extensive findings pertaining to custody and parent-time, as summarized below. The court found that “[a] primary condition that permeated the marriage was Father’s underlying hostility,” which also “affected the first few years of [Child’s] life and [Father’s] early relationship with, and care for” Child. Throughout Child’s life, Mother has been Child’s primary caregiver. Although “Father rarely, if ever, held, fed, changed, or played with” Child during the marriage, since the separation he has cared for Child during his parent-time. Father and Mother have “demonstrated a strong desire for parent-time since their separation,” and Father “has rearranged work schedules and career goals to accommodate as much time as possible with” Child. His interactions with Child have “significantly improved,” and he “has bonded more with her.” But his “anger towards Mother occasionally interferes with his ability to see, understand, and meet the needs of” Child. Child “has a strong bond with Father” and “enjoys spending time with” him.

¶15 The court found that Mother consistently demonstrated the ability to meet Child’s developmental needs and that Father had demonstrated an improvement in his ability to do so, although the court was unsure whether this was a long-term change. Each parent was able to meet Child’s physical needs and to function as an effective parent, although Father’s “apparent lack of insight of how his anger towards Mother, and his efforts to embroil Mother in allegations of abuse,” see infra ¶ 17, “have physically impacted” Child and have interfered with his parenting abilities. The court determined that both parents have negatively impacted Child’s emotional wellbeing—albeit Mother to a lesser extent—through their poor responses and behaviors when in each other’s presence.

¶16      The court found that although “each parent has shown that they have the capacity and willingness to function as a parent to” Child, “[t]he difficulty lies in their inability to co-parent and properly interact with the other parent,” particularly during drop-off and pick-up, as well as when communicating about Child. Regarding drop-off and pick-up, the court stated that “[t]he difficulty comes about by actions of both parents, although Father more consistently causes [Child’s] transitions to be difficult” by not encouraging her to transition to Mother’s care and by saying things that “weigh negatively on [Child’s] emotions in a manipulative and passive aggressive manner.” Mother also occasionally expressed displeasure about Father’s behavior in Child’s presence. Concerning the parents’ communication, the court stated that in 2017, “[d]ue to the high level o[f] conflict,” it ordered Mother and Father to communicate through a third-party service that reviewed and, if necessary, edited and revised the messages they sent each other. The third-party service had to make substantial edits to many of Father’s messages and advised him that it would “not send emails that are threatening.” Because Father also became adversarial with the third-party service, it withdrew, and the parties had to find another communication intermediary. But in the months leading up to trial, communication between the parties had “been relatively civil.”

¶17 The court next expressed concern regarding Father’s “emotional and sometimes indirect physical abuse of” Child through his repeated claims, “without sufficient justification,” that Mother was physically abusive toward Child. Specifically, between 2017 and 2020, Father made multiple reports of abuse to various police departments, the Division of Child and Family Services (DCFS), and medical providers. This “exposed [Child] to unnecessary emotional trauma and invasive physical examinations” and never resulted in criminal charges being filed against Mother or in DCFS taking enforcement action against her. “When the agencies did not confirm his opinion, [F]ather became overly focused, argumentative, and belligerent” and “was unwilling to accept the many conclusions of DCFS.” The court found that “Father’s reports of abuse were vexatious and were calculated and designed to harm Mother,” and he either “was not aware of, or did not care about the emotional harm he was causing [Child] through the continuous filing of unsupported claims of abuse.”

¶18      The court then addressed Father’s rule 35 evaluation.[3] At trial, First Expert, Second Expert, and another expert (Third Expert) testified about the evaluation. The court noted that based on First Expert’s own testimony, it appeared that First Expert “primarily identified personality traits of [Father] from testing which [First Expert himself] considered invalid.” The court also agreed with many of Second Expert’s critiques of First Expert’s opinions, including that First Expert’s “opinions based on testing should not be considered” because First Expert “testified that the test results were unreliable due to Father’s high degree of defensiveness”; that First Expert “did not utilize many of the standard tests and methods for determining parenting capacity and therefore his opinions on parenting capacity are not helpful”; and that First Expert did not observe Father interact with Child. Accordingly, the court “found little value in much of [First Expert’s] diagnostic expert opinions,”[4] but it noted that, based on other trial testimony and on its own review of some of the records that First Expert examined that were also submitted into evidence, it agreed with his conclusions regarding Father’s negative characteristics and personality traits. Specifically, the court noted Father’s “historical demonstration of grandiosity, entitlement, interpersonal exploitativeness, lack of empathy, high levels of persistence, rigidity, lack of agreeableness, vexatious intimidation, along with a tendency to resort to arrogant and intimidating behaviors toward others, particularly when encountering others whom he believes stand in his way.” The court, however, rejected several of First Expert’s other opinions.[5]

¶19 The court also found Third Expert to be “qualified,” “credible,” and “an unbiased witness.” Third Expert testified that in counseling sessions, he “worked with Father to understand how to modify his behavior” and that Father had demonstrated improvement. Third Expert described Father’s current character traits as “[p]ersistent,” “[i]ntelligent,” “[e]ven keeled,” “[c]onstant in demeanor,” and “[a]ble to rise and process issues and disagreement more effectively.”

¶20      Turning to the question of legal custody, the court held that the presumption that joint legal custody is in the child’s best interest was rebutted in this case by the parties’ inability “to set aside their personal differences and focus on the needs of” Child, and it awarded sole legal custody to Mother. The court based this decision on several things: the difficulties the parties had in setting aside their personal differences to attend to Child’s needs, although it noted that Mother was better able to do so; Father’s emotional abuse of Child “by subjecting her to repeated interviews and physical examinations when he repeatedly raises allegations of abuse against Mother without sufficient cause”; “Father’s need to control and dominate Mother” and to disrespect her; Father’s “inability to recognize the value of input from others, including Mother”; Father’s history of being unable to effectively communicate with Mother; Father’s aggressive and passive-aggressive behavior during pick-up and drop-off and his failure to make it a less emotionally draining experience for Child; Father’s lack of encouragement that Child “equally share time, love and affection with Mother”; and Mother’s constant meaningful participation in raising Child, while Father did not do so for the first few years of Child’s life due to “his anger issues” and university studies.

¶21 Regarding physical custody, the court determined that it was in Child’s best interest “that Father be actively involved in her life” and that he “should have frequent and consistent time with” her so long as there were orders in place enforcing respectful communication between Mother and Father and reducing their interactions during pick-up and drop-off. Accordingly, the court awarded the parties joint physical custody, with Mother as the primary physical custodian and with Father having “frequent and expanded rights of parent time.”

¶22 The court then considered child support, the main issue of which was the income to be imputed to Mother. The court noted that Mother had left full-time employment when Child was born and that she was not employed at the time of trial, but she was attending university classes. The court found that Mother had the experience and skills to find employment in the fields of marketing and public relations with a likely starting income of between $2,500 and $2,800 per month. But the court also found that as a result, Mother would necessarily incur childcare costs and either have to terminate or significantly modify her studies. Ultimately, the court determined that Mother was voluntarily underemployed. But because there was insufficient evidence presented regarding childcare costs or whether current employment was “available in either of her experience categories, or what the current rate of pay would be,”[6] the court imputed to Mother “the federal minimum wage of $1,257 per month.” And based on Father’s actual income and Mother’s imputed income, the court ordered Father to make $666 monthly child support payments to Mother.

¶23      Finally, the court awarded Mother $161,066.94 in attorney fees and costs pursuant to Utah Code section 30-3-3, holding that Mother had substantially prevailed and finding, among other things, that Father had a greater ability to pay.[7]

¶24      Father appeals.

ISSUES AND STANDARDS OF REVIEW

¶25      Father raises five primary issues on appeal. First, Father argues that the trial court erred in awarding sole legal custody of Child to Mother.[8] Specifically, he contends that the “court’s analysis of Utah Code sections 30-3-10 and 30-3-10.2 does not comply with Utah law.” Generally, we review a trial court’s custody award for an abuse of discretion. See T.W. v. S.A., 2021 UT App 132, ¶ 15, 504 P.3d 163. “This discretion is broad; indeed, as long as the court exercises it within the confines of the legal standards we have set, and the facts and reasons for the decision are set forth fully in appropriate findings and conclusions, we will not disturb the resulting award.” Id. (quotation simplified). But whether the court correctly interpreted the legal standards set forth in sections 30-3-10 and 30-3-10.2 is a question of law that we review for correctness. See Ross v. Ross, 2019 UT App 104, ¶ 8, 447 P.3d 104. See also State v. De La Rosa, 2019 UT App 110, ¶ 4, 445 P.3d 955 (stating that because “trial courts do not have discretion to misapply the law,” “the abuse-of-discretion standard of review will at times necessarily include review to ensure that no mistakes of law affected a lower court’s use of its discretion”) (quotation simplified).

¶26 Second, Father contends that the court abused its discretion when it found that he had emotionally abused Child. We review the trial court’s findings of fact for clear error. See T.W., 2021 UT App 132, ¶ 15. Under this standard, “the factual findings of the district court will not be disturbed unless they are clearly erroneous by being in conflict with the clear weight of the evidence. But the existence of conflicting evidence is not sufficient to set aside a district court’s finding.” Hinds v. Hinds-Holm, 2022 UT App 13, ¶ 28 n.4, 505 P.3d 1136 (quotation simplified).

¶27      Third, Father argues that the trial court erred in allowing First Expert to testify at trial.[9] In reviewing the admissibility of evidence, we review the underlying legal questions for correctness and the “court’s decision to admit or exclude evidence and [its] determinations regarding the admissibility of expert testimony” for an abuse of discretion. Smith v. Volkswagen SouthTowne, Inc., 2022 UT 29, ¶ 41, 513 P.3d 729 (quotation simplified). “However, error in the district court’s evidentiary rulings will result in reversal only if the error is harmful.” Anderson v. Larry H. Miller Commc’ns Corp., 2015 UT App 134, ¶ 17, 351 P.3d 832.

¶28      Fourth, Father challenges the court’s imputation of federal minimum wage income to Mother for child support purposes. “We review the district court’s interpretation of statutory requirements for correctness” and “the court’s ultimate imputation of income . . . for abuse of discretion.” Burggraaf v. Burggraaf, 2019 UT App 195, ¶ 23, 455 P.3d 1071 (quotation simplified).

¶29      Fifth, Father takes issue with the court’s award of attorney fees and costs to Mother under section 30-3-3 of the Utah Code. “We review a district court’s decision to award attorney fees pursuant to this statute for an abuse of discretion,” Gardner v. Gardner, 2019 UT 61, ¶ 16, 452 P.3d 1134, but review its underlying legal conclusions for correctness, see De La Rosa, 2019 UT App 110, ¶ 4.

ANALYSIS

I. Legal Custody Factors

¶30      Utah law establishes “a rebuttable presumption that joint legal custody . . . is in the best interest of the child.”[10] Utah Code Ann. § 30-3-10(3) (LexisNexis Supp. 2023). This presumption “may be rebutted by a showing by a preponderance of the evidence that [joint legal custody] is not in the best interest of the child.” Id. § 30-3-10(4)(b). The Utah Code also provides several factors to aid in the best interest analysis. See id. §§ 30-3-10(2), -10.2(2) (2019).

¶31      In challenging the trial court’s award of sole legal custody to Mother, Father argues that (A) the court wrongly interpreted Utah Code sections 30-3-10(2) and 30-3-10.2(2) to mean that its consideration of the factors listed in section 10(2) was discretionary; (B) the court’s application of the wrong legal standard resulted in its failure to consider certain relevant factors in its custody analysis; and (C) the court “analyzed certain factors only as they related to Father but not to Mother.”[11] We address each argument in turn.

A.        Statutory Interpretation

¶32 At issue is the interplay between Utah Code sections 30-3-10(2) and 30-3-10.2(2). Section 10(2) provides that “[i]n determining any form of custody and parent-time . . . , the court shall consider the best interest of the child and may consider among other factors the court finds relevant, the following for each parent[.]” Utah Code Ann. § 30-3-10(2) (LexisNexis 2019) (emphasis added). There then follows a list of factors, (a) through (r), several of which have subparts. See id. Taken in isolation, section 10(2) suggests that while the trial court must consider the child’s best interest when determining custody, the court has discretion as to which specific factors are appropriate for consideration in making that key determination.

¶33      But when joint legal or physical custody is at issue, section 10.2(2) also comes into play. That section provides that “[i]n determining whether the best interest of a child will be served by ordering joint legal custody or joint physical custody or both, the court shall consider the custody factors in Section 30-3-10, and the following factors[.]” Id. § 30-3-10.2(2) (emphasis added). And here again, a number of factors are then listed, (a) through (i), several of which include subparts. See id.

¶34      The parties are at odds on whether, when joint custody is at issue, the court’s consideration of the section 10(2) factors is discretionary or mandatory. We agree with Father that, in undertaking any joint custody determination, courts are required to consider, in some fashion, all the section 10(2) factors and all the section 10.2(2) factors.

¶35 “Our primary goal when interpreting a statute is to ascertain the legislature’s intent,” the best evidence of which “is the plain language of the statute itself.” McKitrick v. Gibson, 2024 UT 1, ¶ 31, 541 P.3d 949 (quotation simplified). In this pursuit, “where the statute’s language marks its reach in clear and unambiguous terms, it is our role to enforce a legislative purpose that matches those terms, not to supplant it with a narrower or broader one.” Id. (quotation simplified). See Brindley v. Logan City, 2023 UT App 46, ¶ 22, 530 P.3d 557 (“When the meaning of a statute can be discerned from its language, no other interpretive tools are needed.”) (quotation simplified). Furthermore, to determine legislative intent “when two statutory provisions conflict in their operation, the provision more specific in application governs over the more general provision.” Taghipour v. Jerez, 2002 UT 74, ¶ 11, 52 P.3d 1252 (quotation simplified). With this charge, we look to the directives our Legislature mandated regarding determinations of joint custody.

¶36      Section 10(2) provides that when “determining any form of custody,” the court may consider, among other things, the factors listed in that section. Utah Code Ann. § 30-3-10(2) (emphasis added). Section 10.2(2), on the other hand, applies when the court is tasked with “determining whether the best interest of a child will be served by ordering joint legal custody or joint physical custody or both.” Id. § 30-3-10.2(2) (emphasis added). Thus, although both section 10(2) and section 10.2(2) purport to govern custody determinations, because section 10(2) applies more generally to “any form of custody,” id. § 30-3-10(2), and because section 10.2(2) “is tailored precisely” to address joint custody—the type of custody at issue here—section 10.2(2) is the more specific of the two provisions and thus governs, see Taghipour, 2002 UT 74, ¶ 14.

¶37 Therefore, based on the plain language of section 10.2(2) that “the court shall consider the custody factors in Section 30-3-10 and” additional factors listed in section 10.2(2), see Utah Code Ann. § 30-3-10.2(2) (emphasis added), our Legislature has deemed it necessary to impose additional requirements and heightened sensitivities regarding a court’s decision to order joint custody. In simple terms, this means that in cases where joint custody is under consideration, trial courts lose much of their discretion about which factors to consider. In other words, when considering the best interest of the child under section 10.2(2), the court is required to consider all the custody factors identified by both section 10(2) and section 10.2(2). Cf. Martinez v. Sanchez-Garcia, 2023 UT App 60, ¶ 21, 532 P.3d 105 (stating that under Utah Code section 30-3-10.4(2), which similarly states that when considering whether modifying a custody order is in the child’s best interest, the trial court shall consider the factors listed in section 10(2) and section 10.2(2), courts “are statutorily required to consider, at least in some form, twenty-five enumerated factors, as well as any other relevant factor”) (quotation simplified).

¶38 We note, however, that “not all [the section 10(2) and section 10.2(2)] factors are on equal footing, and a district court generally has discretion to determine, based on the facts before it and within the confines set by the appellate courts, where a particular factor falls within the spectrum of relative importance and to accord each factor its appropriate weight.” Id. ¶ 22 (quotation simplified). “Some factors might not be relevant at all to the family’s situation, and others might be only tangentially relevant or will weigh equally in favor of both parents.” Id. For example, among the other custody factors, section 10(2) indicates that the court must consider “the relative benefit of keeping siblings together.” Utah Code Ann. § 30-3-10(2)(o). But in some cases, such as the one currently before us, the child does not have any siblings. In such circumstances, it is obviously unnecessary to analyze this factor because it is inapplicable to the court’s ultimate decision, although best practice suggests that the court should at least make a note of the factors it considers inapplicable in a given case. See Martinez, 2023 UT App 60, ¶ 22 n.6 (“Even with factors not relevant to the situation or factors that do not move the needle one way or the other, a court is well-served to at least mention those factors in its ruling and briefly indicate that it deems them irrelevant or of equal weight for each party. By mentioning them, even if only to say that they are irrelevant, a court ensures that the parties—and, significantly, a reviewing court—will be able to tell that the court at least considered them.”) (quotation simplified).

¶39 In sum, the trial court erred when it interpreted the relevant statutes to mean that its consideration of the section 10.2(2) factors was mandatory, while its consideration of the section 10(2) factors was discretionary. The court was required to consider, at least to some degree, all factors listed under both sections, and its failure to do so constituted an abuse of discretion. But “unless an appellant demonstrates that an error is prejudicial, it will be deemed harmless and no appellate relief is available.” See Huish v. Munro, 2008 UT App 283, ¶ 8, 191 P.3d 1242 (quotation simplified). We consider this question in conjunction with Father’s argument addressed in the next section of this opinion.

B.        Consideration of All Relevant Factors

¶40      Father argues that the trial court’s misinterpretation of the governing statutes resulted in its failure to consider a number of relevant factors. Specifically, he asserts that the court abused its discretion when it did not consider the parent’s “ability to provide personal care rather than surrogate care”; “the past conduct and demonstrated moral character of the parent”; and “previous parenting arrangements in which the child has been happy and well-adjusted in the home, school, and community,” Utah Code Ann. § 30-3-10(2)(c)(iii), (d), (n) (LexisNexis Supp. 2023), even though he presented evidence at trial relevant to each of these factors.

¶41 As an initial matter, we commend the trial court for providing thirty-three pages of detailed findings in this matter, in which it addressed the majority of the section 10(2) and section 10.2(2) factors. But even given these extensive findings, the court expressly stated that it did not consider certain statutorily mandated factors in making its legal custody determination. Instead, it stated that it would consider the 10(2) factors “if it elects to do so.” Furthermore, because at least one of the three factors Father identifies, i.e., each parent’s “past conduct and demonstrated moral character,” id. § 30-3-10(2)(d), carries some weight in the legal custody determination,[12] we cannot say that the court’s failure to consider all the section 10(2) factors was harmless.

¶42 We therefore vacate the trial court’s legal custody determination and remand the case for consideration of all section 10(2) factors, and for such adjustment in the court’s legal custody determination, if any, as may then become appropriate. See Twitchell v. Twitchell, 2022 UT App 49, ¶ 25, 509 P.3d 806.

C.        Comparative Findings

¶43 A best-interest determination is “based on a number of factors that compare the parenting skills, character, and abilities of both parents in light of a realistic and objective appraisal of the needs of a child.” Woodward v. LaFranca, 2013 UT App 147, ¶ 22, 305 P.3d 181 (quotation simplified), cert. denied, 312 P.3d 619 (Utah 2013), abrogated on other grounds by Zavala v. Zavala, 2016 UT App 6, 366 P.3d 422. See Twitchell, 2022 UT App 49, ¶ 23 n.4 (noting that a trial court’s findings should compare both parents’ “relative character, skills, and abilities” and not just that of one parent in particular). In other words, the court is required to undertake a comparative analysis whereby the court must consider the evidence relating to each parent.[13]

¶44 Father argues that the court’s comparative analysis and subsequent findings on a number of factors addressed only him and did not adequately compare the evidence as it related to Mother. Specifically, Father asserts that the court failed to make findings relating to Mother’s emotional stability, Child’s bond with her, her maturity and willingness to protect Child from parental conflict, and her ability to cooperate with Father. See Utah Code Ann. § 30-3-10(2)(e), (q) (LexisNexis Supp. 2023); id. § 30-3-10.2(2)(g), (h) (2019). Although Father acknowledges that the court made certain findings relating to these factors, he contends that the findings did not account for specific pieces of evidence he identifies on appeal.[14] But the trial court is not required to recite all evidence presented at trial in its findings of fact; just the evidence that is key to its custody decision. See Twitchell, 2022 UT App 49, ¶ 21 (highlighting that “courts are not required to render a global accounting of all evidence presented or to discuss all aspects of a case that might support a contrary ruling” and instead must present sufficiently detailed findings and “include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached”) (quotation simplified).

¶45      We address each of the factors Father challenges on appeal and ultimately reject his suggestion that a court’s comparative analysis must proceed in a point-by-point, side-by-side comparison of each piece of evidence presented at trial in the context of each custody factor. Overall, the court’s comparative analysis in this case was sufficient.

¶46 Emotional Stability. Father contends that the court included specific findings regarding his emotional stability but did not include similar findings related to Mother despite evidence he presented at trial reflecting negatively on her in that respect. But Father misinterprets the trial court’s charge. The court is required to make only sufficient findings to support its decision. And the trial court is in the best position to weigh the evidence.

¶47      The court found that each parent had shown “the capacity and willingness to function as a parent” but that they both demonstrated an “inability to co-parent and properly interact with the other parent” and that they had “shown [a] limited ability to communicate effectively about [Child] over the years.” The court also found Third Expert to be credible and made findings consistent with his opinion that Father had improved his character traits since the parties’ separation. But despite Father’s improvement, the court also found that Father “says things to [Child] which weigh negatively on her emotions in a manipulative and passive aggressive manner.” Comparatively, the court found that “Mother occasionally expresses her displeasure of Father’s behavior openly in front of [Child] either by word or by her actions.” Based on its charge to make sufficient findings necessary to support its decision, the trial court’s findings are sufficiently comparative as concerns the parties’ emotional stability, particularly as concerns the issue of legal custody.

¶48 Child’s Bond with Parent. Father argues that the court specifically found that Child “has a strong bond with” and “enjoys spending time with” him but made no comparative findings regarding Mother’s bond with Child. He further asserts that the court did not consider evidence he presented that Mother and Child have a weak bond. But the court’s findings demonstrate that the court at least implicitly considered the strong bond between Child and Mother. The court found that “Mother has been the primary caregiver of [Child] from the time she was born, both during the marriage and after separation” and that although Father seemed uninterested in Child during the marriage, since the separation Father’s bond with Child had improved through his beginning to care for her during his parent-time. With the court’s recognition that Child’s bond with Father had improved and became “strong” as he began to show interest in and to care for Child, which Mother has done from the very beginning of Child’s life, the court sufficiently compared Child’s bonds with each parent.

¶49 Maturity and Willingness to Protect Child. Father next contends that the court made findings relating to his maturity and willingness to protect Child from parental conflict but did not make such findings relating to Mother. We disagree. The court specifically found that each parent showed an “inability to co-parent and properly interact with the other parent,” resulting in difficulty surrounding parenting decisions and custody handoffs. The court also found that Mother “occasionally expresses her displeasure of Father’s behavior openly in front of [Child] either by word or by her actions.” Similarly, the court found that Father displayed “inappropriate interactions with [Child] and Mother during pickup and drop off,” demonstrated an “insistence on addressing speculative and false allegations of abuse at the expense of [Child’s] emotional well-being,” did not encourage Child to look forward to being with Mother, and “is either unaware of the emotional upset his behavior causes [Child] or he is aware but prefers to upset her.” Thus, because the court addressed both parents’ interactions on custody handoffs and the like, the court’s findings are sufficiently comparative as to the parties’ maturity and willingness to protect Child from parental conflict.

¶50      Ability to Cooperate. Lastly, Father challenges the court’s findings regarding his inability to cooperate with Mother. He does not assert that the court did not make comparative findings regarding Mother’s ability to cooperate with him. Instead, Father’s argument is limited to asserting that the court’s findings on this point did not reflect evidence he presented at trial regarding his cooperation with Mother and her lack of cooperation with him. But, as discussed above, the trial court is not required or expected to make a finding on every bit of evidence presented. The litigation in this matter comprised numerous motion hearings and a ten-day trial with multiple witnesses, resulting in an appellate record in excess of 6,000 pages. The court made thirty-three pages of specific findings and those findings sufficiently show how the court arrived at its decision.

¶51 For these reasons, while the court did not undertake granular comparisons of each piece of evidence deemed problematic by Father, the court did adequately consider Child’s best interest by making appropriate comparisons. From the court’s extensive findings, it appears that the court made the difficult decision concerning the best interest of Child, who obviously has two very loving parents. See Tucker v. Tucker, 910 P.2d 1209, 1215 (Utah 1996) (“A trial court need not find one parent inadequate before awarding custody to the other.”).

¶52      In conclusion, because the court abused its discretion in not considering every factor it was statutorily required to, we remand this matter with instructions that the court reconsider its joint legal custody award in light of all the factors listed in section 10(2) and section 10.2(2), and in particular each parent’s “past conduct and demonstrated moral character,” Utah Code Ann. § 30-3-10(2)(d), as explained in Part I.B.

II. Emotional Abuse

¶53      Father argues that the court’s finding of his “substantial emotional abuse of [Child] through false allegations” was against the clear weight of the evidence. He primarily asserts that the court did not address the evidence of Child’s repeated injuries (cuts, bruises, and welts) that prompted him to alert authorities, and that “Mother presented little to no evidence that Child was [harmed], or even affected by the reports.”

¶54      As discussed above, under section 30-3-10.2(2) of the Utah Code, the court must address all the factors included in section 30-3-10(2) and make comparative findings for those factors. This includes consideration of “evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, the parent, or a household member of the parent.” Utah Code Ann. § 30-3-10(2)(a) (LexisNexis Supp. 2023). Here, the trial court expressed concern about “Father’s use of emotional and sometimes indirect physical abuse of [Child] by claiming [Mother] has harmed [Child] without sufficient justification” that “exposed [Child] to unnecessary emotional trauma and invasive physical examinations.” The court then provided three pages of findings concerning this factor, including a list of some, but not all, of the reports of physical abuse Father made to the authorities about Mother and their outcomes.[15] But because neither party presented expert testimony at trial to establish or rebut whether Father’s many reports amounted to emotional abuse in a diagnostic sense, the court’s reference to emotional abuse is properly understood as usage in a more colloquial sense with a rather limited purpose.

¶55 The court limited its findings relating to emotional abuse to its legal custody award. Although emotional abuse resulting in harm to Child would absolutely play a significant role in a physical custody determination, the court made no mention of it when it awarded the parties joint physical custody of Child. Instead, the court concluded that it was in Child’s best interest that “Father be actively involved in her life” and “have frequent and consistent time with” her.

¶56 And in addressing legal custody, the court discussed its emotional abuse findings in the limited context of discussing the issue of Mother and Father being unable “to set aside their personal differences and focus on the needs of” Child, which formed the basis for the court’s determination that the presumption in favor of joint legal custody had been rebutted. The court awarded Mother sole legal custody because she was better able to set aside her differences, while “Father is not able to set aside his differences with Mother to give first priority to the welfare of [Child] and reach shared decisions in [Child’s] best interests.” Father’s “subjecting [Child] to repeated interviews and physical examinations when he repeatedly raises allegations of abuse against Mother without sufficient cause” was one such example of this.

¶57 Also notable is that the trial court applied the statutory presumption in favor of joint custody in its analysis (holding that it had been rebutted) when such a presumption does not apply in cases involving emotional abuse. See id. § 30-3-10(3)(a) (stating that the presumption in favor of joint legal custody does not apply in cases involving, among other things, “emotional abuse”). This further illustrates the very limited purpose for which the court applied its findings on “emotional abuse,” focusing on how it reflected that Father’s hostility toward Mother was paramount even if it entailed exposing Child to repeated interviews and physical exams—and not on any harm Child actually suffered as a result.

¶58 With this limited view in mind, we conclude that the court’s findings were sufficiently supported by the evidence. Even in light of all the evidence Father presented at trial supporting the various cuts, bumps, and bruises that prompted him to alert authorities, the court’s finding that his “reports of abuse were vexatious and were calculated and designed to harm Mother” is supported by the sheer number of reports Father made that never resulted in criminal charges being filed against Mother or in DCFS taking enforcement action against her. Several different agencies all investigated Mother and each investigation produced the same result. Although, as Father points out, they could not conclusively rule out the possibility that Mother abused Child, the many investigations did not produce sufficient evidence of abuse to cause intervention by the authorities. After multiple reports of such injuries to various authorities and medical professionals did not produce the desired intervention, it was not unreasonable for the court to find that Father’s primary motivation in continuing to file such reports was his desire to harm Mother.[16]

¶59 For these reasons, and given the limited role the court’s findings related to “emotional abuse” served in the legal custody analysis, we do not disturb those findings.

III. First Expert’s Testimony

¶60      Father argues that the trial court abused its discretion in not excluding First Expert’s testimony as unreliable under rule 702 of the Utah Rules of Evidence. In support of this argument, he points to the court’s ultimate agreement with Second Expert’s testimony that, among other things, First Expert’s “opinions based on testing should not be considered” and that First Expert “did not utilize many of the standard tests and methods for determining parenting capacity and therefore his opinions on parenting capacity are not helpful.” But even assuming, without deciding, that the court’s decision to allow First Expert to testify amounted to an abuse of discretion, such error was harmless here.

¶61      “Not every trial error requires reversal.” State v. Leech, 2020 UT App 116, ¶ 42, 473 P.3d 218 (quotation simplified), cert. denied, 481 P.3d 1039 (Utah 2021). “Unless an appellant demonstrates that an error is prejudicial, it will be deemed harmless and no appellate relief is available.” Huish v. Munro, 2008 UT App 283, ¶ 8, 191 P.3d 1242 (quotation simplified). “An error is harmless and does not require reversal if it is sufficiently inconsequential that we conclude there is no reasonable likelihood that the error affected the outcome of the proceedings.” State v. Reece, 2015 UT 45, ¶ 33, 349 P.3d 712 (quotation simplified).

¶62 Here, after agreeing with several of Second Expert’s concerns and critiques of First Expert’s rule 35 evaluation of Father, the court stated that it ultimately “found little value in much of his diagnostic expert opinion” and that it agreed with only some of his “conclusions regarding characteristics and personality traits” of Father. But even here, the court stated that First Expert’s opinions with which it agreed “are consistent with other evidence presented to the Court regarding Father’s historical demonstration of” certain negative personality traits, specifically records submitted into evidence and other trial testimony. Thus, First Expert’s testimony did not serve as the sole basis for the court’s findings regarding some of Father’s characteristics and personality traits. Indeed, the court seemed to emphasize that its agreement with First Expert in that regard was based on the corroboration furnished by the court’s own review of some of the records First Expert examined and on other trial testimony.

¶63 For these reasons, Father has not demonstrated a reasonable likelihood that First Expert’s testimony affected the outcome of the trial, and this argument therefore fails.

IV. Mother’s Imputed Income

¶64 Father contends that the court abused its discretion by imputing Mother’s income at only the federal minimum wage, when a higher income was in order given the evidence before the court. Because the trial court misapplied the controlling legal standard, we agree.

¶65      “Because income imputation itself is primarily focused on a spouse’s ability to produce income, it is not unusual for courts to impute income to a spouse who has not worked during the marriage (or who has not worked for a number of years preceding the divorce) but who is nevertheless capable of producing income.” Petrzelka v. Goodwin, 2020 UT App 34, ¶ 26, 461 P.3d 1134 (quotation simplified). “The purpose of such imputation is to prevent parents from reducing their child support or alimony by purposeful unemployment or underemployment.” Connell v. Connell, 2010 UT App 139, ¶ 16, 233 P.3d 836 (quotation simplified).

¶66 Section 78B-12-203 of the Utah Code establishes the guidelines by which income may be imputed. It provides that in contested cases, a trial court may not impute income to a party without first holding a hearing on the matter and entering “findings of fact as to the evidentiary basis for the imputation.” Utah Code Ann. § 78B-12-203(8)(a) (LexisNexis 2022). The statute further provides that the court’s imputation of income “shall” be based on the following ten factors, “to the extent known”: “(i) employment opportunities; (ii) work history; (iii) occupation qualifications; (iv) educational attainment; (v) literacy; (vi) age; (vii) health; (viii) criminal record; (ix) other employment barriers and background factors; and (x) prevailing earnings and job availability for persons of similar backgrounds in the community.”[17] Id. § 78B-12-203(8)(b).

¶67 Here, the trial court deemed Mother voluntarily underemployed and found that she “has experience and skills in the workforce that would enable her to find employment in marketing and public relations work.” The court further found that “[i]f Mother were able to find employment as either a PR Specialist or in Advertising Sales her likely income would start around $2,500 to $2,800” per month. But the court opined that to become employed full-time, “Mother would necessarily incur childcare costs for a six (6) year old with transportation to and from school and would need to terminate or significantly modify her current study program” and that the evidence presented at trial “does not provide a calculation of the costs of day care expense necessary for Mother to become full time employed.” The court further stated that “the evidence provided is insufficient for the Court to determine that there is current employment available in either of her experience categories, or what the current rate of pay would be,” presumably given the impact of the COVID-19 pandemic. Based on those considerations, the court imputed to Mother “the federal minimum wage of $1,257 per month.”

¶68      The court’s reasons for reducing Mother’s imputed income from between $2,500 and $2,800 per month to the federal minimum wage go against the legal standard set forth in section 78B-12-203. As an initial matter, the reasoning that Mother would need to make adjustments to her schooling in order to pursue full-time employment has no legal basis. “[T]he pursuit of a higher education simply does not preclude employment.” Mancil v. Smith, 2000 UT App 378, ¶ 17, 18 P.3d 509. Although section 78B-12-203 provides that a trial court may not impute an income to a parent who “is engaged in career or occupational training to establish basic job skills” when such training “is not of a temporary nature,” Utah Code Ann. § 78B-12-203(8)(d)(iii), this is not the case here. Mother already had a bachelor’s degree and was pursuing a graduate program. Moreover, the court already found that she possessed skills and experience in the field of marketing and public relations. See Fish v. Fish, 2010 UT App 292, ¶ 18, 242 P.3d 787 (“The basic job skills training envisioned by the statute is training which can aid a person in achieving an income beyond the minimum wage job which can be had with no training at all, i.e., training for the starting point on a consecutive progressive career track.”) (quotation simplified). Thus, the court incorrectly based its reduction in Mother’s imputed income on her pursuit of higher education.

¶69 As for daycare expenses, at age six, Child would begin school soon, thus drastically reducing childcare costs as well. In any event, Utah law provides that “[t]he child support order shall require that each parent share equally the reasonable work-related child care expenses of the parents.” See Utah Code Ann. § 78B-12-214(1) (LexisNexis 2022). Accordingly, the child support order—and not Mother’s imputed income—was the appropriate means by which to address childcare costs.

¶70      Lastly, section 78B-12-203(8) mandates that the trial court base its imputation of income on “employment potential and probable earnings” by evaluating the ten enumerated factors, “to the extent known.” Id. § 78B-12-203(8)(b) (emphasis added). The statute thus expressly provides for possible uncertainty regarding the factors. Here, the vocational expert, whom the trial court found to be “qualified and credible,” provided a projection of future job openings in the field and stated that the unemployment rate in the area had doubled from the previous year due to the COVID-19 pandemic. Insofar as the court felt that additional information regarding current employment opportunities in the area was necessary, the uncertainty regarding this factor did not support a reduction of the already determined likely beginning wage of between $2,500 and $2,800 per month to the federal minimum wage. To be sure, the trial court has discretion when weighing the statutory factors, but because the statute expressly allows for uncertainty regarding the factors, that uncertainty cannot rationalize the court’s somewhat speculative decision.

¶71      For these reasons, the trial court abused its discretion by applying the wrong legal standard when imputing Mother’s income. See T.W. v. S.A., 2021 UT App 132, ¶ 15, 504 P.3d 163. We therefore reverse the trial court’s imputation of federal minimum wage income to Mother and remand for recalculation of her imputed income consistent with this opinion.

V. Attorney Fees and Costs

¶72      Finally, Father contends that in awarding attorney fees and costs to Mother, the trial court misapplied Utah law by incorrectly applying the “substantially prevailed” standard and by basing its decision, in part, on Father’s greater ability to pay. We agree.

¶73      A trial court may award attorney fees in a divorce action pursuant to section 30-3-3 of the Utah Code. “Both the decision to award attorney fees and the amount of such fees are within the district court’s sound discretion.” Lobenduhn v. Lobenduhn, 2023 UT App 137, ¶ 44, 540 P.3d 727 (quotation simplified). But the court must still “make detailed findings of fact supporting its determination.” Connell v. Connell, 2010 UT App 139, ¶ 27, 233 P.3d 836.

¶74      Section 30-3-3 “creates two classes of attorney fees—those incurred in establishing court orders and those incurred in enforcing court orders.” Id. ¶ 28 (emphasis in original). Subsection (1) provides,

In any action . . . to establish an order of custody, parent-time, child support, alimony, or division of property in a domestic case, the court may order a party to pay the costs, attorney fees, and witness fees, including expert witness fees, of the other party to enable the other party to prosecute or defend the action. The order may include provision for costs of the action.

Utah Code Ann. § 30-3-3(1) (LexisNexis Supp. 2023) (emphasis added). “[T]he party to be awarded attorney fees under this [subsection] has the burden to prove (1) that the payee spouse has a financial need, (2) that the payor spouse has the ability to pay, and (3) that the fees requested are reasonable.” Lobendahn, 2023 UT App 137, ¶ 44.

¶75      Subsection (2) provides,

In any action to enforce an order of custody, parent-time, child support, alimony, or division of property in a domestic case, the court may award costs and attorney fees upon determining that the party substantially prevailed upon the claim or defense. The court, in its discretion, may award no fees or limited fees against a party if the court finds the party is impecunious or enters in the record the reason for not awarding fees.

Utah Code Ann. § 30-3-3(2) (emphasis added). In contrast to subsection (1), when “awarding fees under subsection (2), the court may disregard the financial need of the moving party” using the “substantially prevailed” standard as “the guiding factor.” Connell, 2010 UT App 139, ¶ 28 (quotation simplified).

¶76 The differing standards of the two subsections are attributed to the different purposes each subsection serves. See id. ¶ 29. “Attorney fees are granted under subsection (1) to enable a party to prosecute or defend the action.” Id. (quotation simplified). Otherwise, “a spouse lacking a separate income would be unable to meaningfully participate in divorce proceedings.” Id. “Consequently, the moving spouse’s need is a sine qua non of a subsection (1) award.” Id. Conversely, “fee awards under subsection (2) serve no equalizing function but allow the moving party to collect fees unnecessarily incurred due to the other party’s recalcitrance.” Id. ¶ 30.

¶77      Here, in addressing the question of attorney fees and costs, the trial court prefaced its findings with the observation that the litigation in this matter “was contentious and relied on a significant amount of documents, which caused a significant amount of fees to be incurred by the parties.” The court first denied Father’s request for attorney fees “as a sanction for [Mother’s] unreasonableness in requiring these proceedings to go to trial,” ruling that “[a]ttorney’s fees as sanctions are not applied because a party has been unreasonable in requiring disputes to go to trial.” The court then turned to Mother’s competing request premised on her “having ‘substantially prevailed.’” The court stated that Mother “did substantially prevail, not only at trial, but at interim hearings on motions prior to trial.”

¶78 Following this preface, the court entered findings regarding the parties’ need and ability to pay. The court found that Mother “has limited income, if any, at this time,” and it noted Father’s annual salary. The court then proceeded to make findings on the parties’ expenses and disposable income, prefacing its findings by stating that it “has limited information regarding each party’s monthly expenses.” The court found that Father has “approximately $44,500 in disposable funds annually.” Turning to Mother next, the court first noted that neither party provided any evidence of her expenses, leaving the court “with no basis to find Mother has any expenses beyond those which are covered by her need for child support.”[18] The court thus found that Mother “has no income and no evidence of expenses.” The court also noted that “it received no evidence that Mother can pay for her costs and attorney fees.” Based on this, the court found that “[a]s between Father and Mother, Father has the greater ability to pay attorney’s fees” and held that “Mother should be awarded her reasonable costs and attorney fees.”

¶79      The court then addressed the reasonableness of Mother’s attorney fees. It again prefaced its findings by stating that “[a]lthough the issues of custody, parent time, and child support are routinely dealt with in our courts, this case is not a ‘usual’ case” because “[t]he parties have been unusually accusatory, intransigent, and uncooperative which has significantly raised the costs of this litigation to both parties.” The court noted that “Father’s decisions caused Mother to successfully bring multiple orders to show cause, motions to compel, and statements of discovery issues,” and have “forced Mother to incur otherwise unnecessary legal costs.” Against this backdrop, the court found that not all Mother’s requested costs and fees, totaling almost $410,000, were “reasonable and necessary,” and it ultimately awarded her $161,066.94 in attorney fees and costs. The court largely based this reduction on Mother’s “duplication of legal services, unnecessary review and consultation between multiple attorneys, and inefficiencies in presenting evidence at trial,” which the court deemed to be unreasonable.

¶80      There are two problems with the trial court’s award. First, the court conflated the two distinct bases for awarding fees under section 30-3-3, resulting in an undifferentiated attorney fees award. See Connell, 2010 UT App 139, ¶ 31. The court began its analysis by stating that Mother “substantially prevail[ed], not only at trial, but at interim hearings on motions prior to trial.”[19] This statement in and of itself is concerning as the purpose of the ten-day bench trial was largely “to establish an order of custody, parent-time, [and] child support,” thereby implicating subsection (1). See Utah Code Ann. § 30-3-3(1). But subsection (1) does not apply a “substantially prevailed” standard. See Lobendahn, 2023 UT App 137, ¶ 44; Connell, 2010 UT App 139, ¶ 29.

¶81      Although some pre-trial motions dealt with enforcing the court’s temporary orders regarding “custody, parent-time, child support, alimony, or division of property,” thereby falling under the ambit of subsection (2), see Utah Code Ann. § 30-3-3(2), the court did not distinguish between the two distinct statutory bases for awarding attorney fees. Rather, the court took the total amount of attorney fees Mother sought and reduced the amount to the sum it considered reasonable based on multiple inefficiencies on Mother’s part.

¶82 The second problem is that in awarding attorney fees under subsection (1), the court did not expressly find that Father “has the ability to pay” the requested attorney fees. Lobendahn, 2023 UT App 137, ¶ 44. Instead, the court found that between the two, “Father has the greater ability to pay attorney’s fees.” Whether Father is in a better position than Mother to pay attorney fees and whether Father has an actual ability to pay both his and Mother’s attorney fees are two different inquiries. Although the answer to both questions may, on remand, end up being the same, the court nonetheless did not make the required finding when awarding Mother attorney fees. See Connell, 2010 UT App 139, ¶ 27 (stating that as part of its attorney fees award, the court “must make detailed findings of fact supporting its determination”).

¶83      In sum, we reverse the trial court’s award of attorney fees and costs and remand with instructions that the court distinguish the fees that fall under subsection (1) and subsection (2) of section 30-3-3, and that it apply the corresponding legal standard to each group of fees. In the course of this effort, the court also needs to make a specific finding regarding Father’s ability to pay Mother’s attorney fees as to any fees awarded under subsection (1).

CONCLUSION

¶84      There remain issues that require additional attention and must be revisited on remand. Although we affirm certain of the trial court’s findings of fact and evidentiary rulings relating to its award of sole legal custody of Child to Mother, we reverse and remand with instructions that the court reevaluate its legal custody award by considering all the statutorily mandated custody factors, in particular the one focused on past conduct and moral character. We likewise reverse and remand for further consideration of Mother’s imputed income and the award of attorney fees and costs in Mother’s favor.[20]

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


[1] “On appeal from a bench trial, we view the evidence in a light most favorable to the trial court’s findings, and therefore recite the facts consistent with that standard.” Chesley v. Chesley, 2017 UT App 127, ¶ 2 n.2, 402 P.3d 65 (quotation simplified).

[2] As relevant here, rule 35(a) of the Utah Rules of Civil Procedure states, When the mental or physical condition or attribute of a party or of a person in the custody or control of a party is in controversy, the court may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner or to produce for examination the person in the party’s custody or control. The order may be made only on motion for good cause shown.

[3] Mother also underwent a rule 35 examination, but it does not appear that those results were admitted into evidence at trial.

[4] The trial court initially found First Expert “to be credible although not entirely unbiased.” But following Father’s post-trial motion, the court did not include that statement in the amended findings of fact and conclusions of law that it later issued.

[5] Specifically, the court rejected First Expert’s opinion that Father “is prone to bouts of depression”; that he “appears to have a disconnect between his emotions and his cognitive abilities, which impedes his ability to utilize constructive feedback and an inability to learn from his experience and mistakes”; and that “[i]t is likely that Father has not emotionally separated, or moved on from his relationship with Mother.”

[6] A vocational expert, whom the court found to be “qualified and credible,” opined at trial that Mother could earn “approximately $2,800 to $3,750 gross per month” as a public relations specialist. But the court stated that the expert’s calculations did not take the COVID-19 pandemic’s impact on the job market into consideration, and although the expert provided a projection of future job openings in the field, he did not identify any current job openings or pay rates.

[7] We recount the relevant details of the trial court’s attorney fees award in Part V.

[8] Father does not challenge the trial court’s physical custody award on appeal.

[9] Father also contends that the trial court erred in ordering him to sign medical releases for his mental health records without first undertaking the analysis set forth in Debry v. Goates, 2000 UT App 58, 999 P.2d 582, cert. denied, 9 P.3d 170 (Utah 2000). See id. ¶ 26. But because Father did not raise this issue below, and instead opposed the release of the records only on prejudice and scope-of-the-stipulation grounds, this argument is not preserved, and we do not address it further.

[10] The presumption in favor of joint legal custody does not apply in cases that include, among other things, “emotional abuse.” Utah Code Ann. § 30-3-10(3)(a) (LexisNexis Supp. 2023). Although the trial court in this case did make several findings regarding emotional abuse, the court nonetheless applied the presumption but found that it was rebutted by the parties’ inability “to set aside their personal differences and focus on the needs of” Child.

[11] Father also argues that the trial court made unsupported findings concerning Mother’s financial stability, Father’s involvement in Child’s life, and the parties’ communications. But because Father has not marshaled the evidence in support of these findings, he has not carried his burden of persuasion. See Pankhurst v. Pankhurst, 2022 UT App 36, ¶ 15, 508 P.3d 612 (“A party will almost certainly fail to carry its burden of persuasion on appeal if it fails to marshal the evidence sufficient to overcome the healthy dose of deference owed to factual findings.”) (quotation simplified).

[12] The other two factors, the “ability to provide personal care rather than surrogate care” and the “previous parenting arrangements in which the child has been happy and well-adjusted in the home, school, and community,” Utah Code Ann. § 30-3-10(2)(c)(iii), (n) (LexisNexis Supp. 2023), are more germane to a physical custody rather than to a legal custody determination, and Father conceded as much during oral argument before this court.

[13] The case of Allen v. Allen, 2014 UT App 27, 319 P.3d 770, provides a good example of how appropriate comparison between the parents works in practice. After considering the applicable factors and concluding that “both parents appeared nearly equally capable of caring for” their child, the district court in that case determined that, with respect to two factors where the parents were not equally strong, “the stability offered by [the father] outweighed the apparent empathy of [the mother].” Id. ¶ 5 (quotation simplified). See id. ¶ 12 (holding that given the district court’s observation that the parties were “nearly equally capable of caring for” the child and its findings of fact supporting that determination, the court had adequately considered the “character and quality of [the child’s] bonds with both parents”). The deciding factors in the district court’s view were the father’s stability and the mother’s immaturity, “with a tendency to put her needs above those of others, including” the child. Id. ¶ 10. On appeal, this court concluded that the district court’s “discussion of the parties’ relative maturity, stability, and ability to care for [the child] constitutes adequate consideration of both parties’ ‘past conduct and demonstrated moral standards.’” Id. ¶ 11 (quoting Utah Code Ann. § 30-3-10(2)(d) (LexisNexis 2013)).

[14] On this point, Father contends that our decision in Twitchell v. Twitchell, 2022 UT App 49, 509 P.3d 806, requires a trial court to make a finding on all evidence presented by either party. Father misinterprets that decision. In Twitchell, we determined that “to ensure that the trial court’s custody determination, discretionary as it is, is rationally based, it is essential that the court set forth in its findings of fact not only that it finds one parent to be the better person to care for the child, but also the basic facts which show why that ultimate conclusion is justified.” Id. ¶ 24 (quotation simplified). The premise of Twitchell is not that a court must make a specific finding regarding each piece of evidence, but simply that a court must make findings on the “basic facts” that support its ultimate conclusion.

[15] The trial court acknowledged that its list was not a comprehensive one. Mother asserts that she presented evidence at trial that Father instigated a total of 28 investigations against her.

[16] In any event, although Father argues that the trial court’s findings are against the clear weight of the evidence given the evidence of Child’s various injuries presented at trial, he has not marshaled the evidence supporting the court’s findings. To successfully challenge a finding, it is not enough to focus only on “evidence that points to an alternate finding or a finding contrary to the trial court’s finding of fact.” Taft v. Taft, 2016 UT App 135, ¶ 19, 379 P.3d 890 (quotation simplified). Accordingly, Father has also not carried his burden of persuasion on appeal. See Pankhurst v. Pankhurst, 2022 UT App 36, ¶ 15, 508 P.3d 612 (“A party will almost certainly fail to carry its burden of persuasion on appeal if it fails to marshal the evidence sufficient to overcome the healthy dose of deference owed to factual findings.”) (quotation simplified).

[17] The statute further provides that in cases where “a parent has no recent work history,” a court may impute “an income at the federal minimum wage for a 40-hour work week,” and that “[t]o impute a greater or lesser income, the judge in a judicial proceeding . . . shall enter specific findings of fact as to the evidentiary basis for the imputation.” Utah Code Ann. § 78B-12-203(8)(c) (LexisNexis 2022). Although Mother was not working at the time of trial, this did not form the basis for the trial court’s decision to impute the federal minimum wage to her. Rather, it found that she had the potential of earning between $2,500 and $2,800 per month but reduced this amount based on other factors as explained in paragraph 67.

[18] Father argues that Mother bore the burden of establishing her expenses and that the court incorrectly faulted him for not providing evidence of her expenses. But the inability to establish Mother’s expenses only benefitted Father—admittedly to a very limited degree—as the court ultimately did not attribute any expenses to Mother apart from those that are covered by her need for child support in its calculation of disposable funds available to her.

[19] The court awarded some attorney fees to Mother for her success in pre-trial motions along the way. The court also reserved for later determination the issue of attorney fees on certain other pre-trial motions.

[20] Father recently asked that we take judicial notice of developments in legal proceedings involving other parties that he believes are germane to this case. Mother opposes Father’s motion. We are not persuaded that the matters we are asked to take notice of bear on the issues presented in this appeal and so deny the motion. If relevant to the issues the trial court will address on remand, Father may renew his request in that forum.

Tags: , , , , , , , , , , , , , , , , , , , , , , , , , ,

In re H.H. – 2024 UT App 25 – termination of parental rights

In re H.H. – 2024 UT App 25

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF H.H. AND N.H.,

PERSONS UNDER EIGHTEEN YEARS OF AGE.

T.H. AND D.H., Appellants, v.  STATE OF UTAH,  Appellee.

Opinion

Nos. 20220803-CA and

20220820-CA

Filed February 29, 2024

Second District Juvenile Court, Farmington Department

The Honorable Jeffrey J. Noland

Nos. 1163279 and 1163280

Scott L. Wiggins, Attorney for Appellant T.H.

Emily Adams, Sara Pfrommer,

Hannah Leavitt-Howell, Marjorie Christensen, and

Melissa Jo Townsend, Attorneys for Appellant D.H.

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

John M. Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE RYAN M. HARRIS authored this Opinion, in which

JUDGES MICHELE M. CHRISTIANSEN FORSTER and JOHN D. LUTHY

concurred.

HARRIS, Judge:

¶1        After a lengthy bench trial, the juvenile court found grounds to terminate the parental rights of D.H. (Father) and T.H. (Mother) (collectively, Parents) regarding their two youngest children, H.H. (Hannah) and N.H. (Noah).[1] The court found that Father was an unfit parent because he had subjected four of his children, including Hannah and Noah, to “serious emotional abuse,” inflicted through a strict and intimidating parenting style, that “resulted in two of the children considering suicide as an option to end the maltreatment.” As to Mother, the court found that her continued support of Father rendered her incapable of “exercising proper parental care.”

¶2        In its initial post-trial ruling, the court determined that it was in Hannah’s and Noah’s best interest for Father’s parental rights to be terminated, but that it was not in their best interest for Mother’s rights to be terminated. Instead, the court imposed a permanent guardianship arrangement in favor of an adult sibling (Oldest Sister). Later, however, after the guardian ad litem (the GAL) filed a motion for reconsideration, the court amended its initial ruling and ordered Mother’s rights terminated as well.

¶3        In separate appeals that we consider together in this opinion, Parents challenge the termination of their parental rights on several grounds, asserting chiefly that the “juvenile court process” that led to termination violated their constitutional rights and that the court erred in concluding that termination of their parental rights was strictly necessary. For the reasons that follow, we reject all of Parents’ arguments and affirm the court’s termination order.

BACKGROUND[2]

The Family Situation and the Initial Removal

¶4        Parents are the natural parents of six children: four daughters and two sons. By the time this case was initiated in 2018, the two oldest children (Oldest Sister and Older Brother) had reached adulthood and were living on their own. Some years earlier, when she turned eighteen but while she was still in high school, Oldest Sister moved out of Parents’ home because, in her view, Parents had created “a very horrible living situation” that left her “scared to go home.” In 2013, when Older Brother was seventeen and a junior in high school, he also elected, for apparently similar reasons, to move out of the family home; at that point, he moved in with Oldest Sister—who is some nine years older than Older Brother—and her husband (Brother-in-Law). The four younger children—Chloe, Felicity,[3] Hannah, and Noah—all still lived with Parents.

¶5        In May 2018, Utah’s Division of Child and Family Services (DCFS) received a report that Chloe—who was fifteen at the time—had confided to a teacher that her home life was so unbearable that she was considering suicide, on a “constant basis,” as a means of escape. As Chloe described it, Parents were constantly screaming and fighting and taking their anger out on the children. Physical violence, both real and threatened, and verbal abuse were tools that Parents—especially Father— frequently used against the children. Father also forced the children to do seemingly endless chores, and he required them to pay him for basic amenities like fresh food (as opposed to “expired” food storage), computer usage, and rides to school. Chloe told a DCFS caseworker that she was suicidal because “she couldn’t handle being home alone with [Father] all summer.”

¶6        Spurred by the report it received about Chloe’s suicidal ideations, DCFS conducted an investigation during the summer of 2018. Among other things, it administered a “suicide severity” test to Chloe and concluded that Chloe scored “very high.” When DCFS reported this score to Parents, they “both scoffed” and responded that Chloe was a “drama queen” who was “just trying to get attention.” At the end of the investigation, DCFS made a supported finding of “emotional maltreatment” against Parents and offered them “voluntary services” to assist them in improving the situation. DCFS also spoke with Oldest Sister, who was familiar with the family dynamics and the living situation at Parents’ home. Oldest Sister committed to keeping an eye on her siblings and promised to notify DCFS “if the situation escalated.”

¶7        DCFS then notified Parents, by letter, of its “emotional maltreatment” finding. When Parents received this letter, they became “enraged” and responded by “blam[ing] the children” and acting “very vindictive” toward them. In particular, Parents warned the children that, “if they were to speak with authority figures,” including “church leaders” or anyone at DCFS, about events occurring in the home, they would be “severely punished.”

¶8        Notwithstanding this warning, in August 2018 the three younger daughters—Chloe, Felicity (then fourteen), and Hannah (then twelve)—sought guidance from one of their church “young women” leaders (YW Leader). The family—including Parents as well as all six of their children—are practicing members of The Church of Jesus Christ of Latter-day Saints, a church that has relatively structured youth programs with local lay leaders

assigned to provide supervision and guidance. Both YW Leader and the president of the family’s local church unit (Branch President) had counseled the girls—without Parents’ knowledge—to “contact one of [them] if things got too bad at home and they needed an escape or someone to talk to.” When the girls sought YW Leader’s advice, she brought them in to meet with Branch President in his office at the local church.

¶9        As the meeting between the girls and Branch President was nearing its end, Father—having gotten wind of the meeting— appeared at the church; Branch President observed that Father was very upset and “quite agitated,” and Father demanded “to know what [the girls] were doing at the church.” Father “backed [the] girls into a corner” of Branch President’s office and “started angrily interrogating them” and “berating them in a loud, almost yelling tone” before then “turn[ing] on” YW Leader when she tried to intervene. The girls began “sobbing and begging him to stop.” Branch President, perceiving that the girls “were terrified,” also asked Father to stop, telling him that his behavior was “inappropriate.” Father then “angrily” “turned on” Branch President, put a “finger in [his] face,” and accused Branch President of “trying to divide his family.” He also “unloaded on” Chloe, “telling her that she was nothing but a drama queen and that if she hadn’t been threatening suicide just to get attention” the family “wouldn’t be in this mess.” His verbal assault was so fierce that Chloe “threw up her arms in front of her face” in an effort to protect herself. YW Leader was “shocked and quite upset” and “couldn’t believe what she was seeing.” Eventually, Father left the building, and after the incident, Branch President decided to take a step he’d never before taken in his years as a religious leader: he wrote a four-page single-spaced letter to DCFS describing the situation generally, and the incident at the church specifically, offering his view that the “terror and anguish the girls are experiencing” are “real” and that the situation requires attention. He requested that DCFS reopen the family’s case and that, “at a minimum,” the girls “be given a chance to be evaluated by professional counselors.”

¶10      Over the next few days, the situation in the family home continued to deteriorate. During this time, Chloe continued to talk about suicide, and she did so even more seriously; Brother-in-Law reported that Chloe was now saying that she had “a plan” for committing suicide. And Brother-in-Law reported that Felicity, for the first time, was also talking about suicide, even going so far as saying “it was the only way to escape this life as she could no longer deal with it.” On at least one occasion during this time frame, Felicity contacted DCFS to provide additional information.

¶11      Also during this time period, Parents often “cornered” the girls at home, separated them into “different rooms,” and “interrogat[ed]” them for “several hours” about whether they were “sharing information with” DCFS and, if so, what they had shared. During these interrogations, Parents would scream and yell, would threaten to send the children “to juvey,” and would tell them that they would be responsible if the “family was destroyed” and that, in that event, the children would end up in “foster care” where they would likely “be beat[en] and raped.”

¶12 On August 29, 2018, the day after an especially long evening interrogation, Felicity and Hannah went to school— which had just begun for the year—but were so distraught when classes ended that they were afraid to return home, so they contacted Brother-in-Law and asked him to pick them up. When Brother-in-Law arrived at the school, he found the girls “cowering” in the front office and “shaking uncontrollably,” behavior Brother-in-Law considered uncharacteristic; they also would not “let go of each other’s hands.” Brother-in-Law later reported that Felicity was “panicked out of her mind to have to return home to the situation” there. Brother-in-Law took the girls to his house, and he contacted DCFS; he told the caseworker that he “didn’t feel comfortable letting them go home because” he was concerned they might “hurt themselves.”

¶13 The DCFS caseworker assigned to the case traveled to Oldest Sister’s house and spoke with the girls, and she determined that “the family situation had risen to a dangerous level.” At that point, DCFS “sought and received a warrant for the removal” of all four minor children “from the custody and guardianship” of Parents. Later that evening, Parents arrived at Oldest Sister’s house and were served with the removal warrant. DCFS officials, accompanied by law enforcement, informed Parents that the children had been removed from their home. The children were eventually officially placed with Oldest Sister and Brother-in-Law; Hannah and Noah have remained in that placement ever since, and Chloe and Felicity remained in that placement until they reached adulthood.

The State’s Petition and the Shelter Hearing

¶14      The next day, the State filed a petition asking the court to award custody and guardianship of the children to DCFS. In its petition, the State discussed the situation in the home and asserted that both Chloe and Felicity had been having “suicidal thoughts and ideations” as a result. The petition included allegations of the constant chores Father required the children to perform, as well as Father’s requirement that the children pay him for basic necessities. It also included detailed allegations of verbal abuse by Parents, asserting that they were “swearing and spitting” in the children’s faces, calling them “little shits” and “worthless,” and telling the girls in particular that they were “ugly” and that Parents “wishe[d]” they hadn’t been born. The State alleged that Father used physical force as part of his dominion over the children, often “push[ing]” them and “pull[ing] the back of their hair.” Mother would sometimes “threaten[] to kill herself” and then disappear, causing the children distress and creating “panic”as they wondered whether Mother might have followed through with her threats. The State requested that the children be placed “in the custody and guardianship” of DCFS and that any visitation between Parents and the children be at the direction of DCFS and in consultation with a guardian ad litem.

¶15 At a shelter hearing held a few days later, the court considered evidence by proffer from several witnesses, including Parents, the four minor children, Oldest Sister, Brother-in-Law, the DCFS caseworkers, and Branch President.[4] At the conclusion of the hearing, the court found that the children were “suffering emotional harm” and there was “nothing and no services” that could be “placed into the home to ameliorate the harm.” Accordingly, the court concluded that the children could “not be safely returned” to Parents and awarded temporary custody of the children to DCFS, with Parents to have supervised visitation. The court also appointed the GAL to represent the interests of the children, and it later appointed attorneys to represent Mother and Father, separately.

The Failure of Group Therapy

¶16 During the fall of 2018, the court held hearings in the case on nearly a weekly basis, as disputes arose over even rather basic things. For instance, the State wanted all four children to have a mental health assessment, but Parents objected; the court held a hearing and ordered that the evaluations take place and that Parents were not allowed to attend them. The evaluations eventually occurred, and the children began therapy—both individual and group therapy—with a counselor in October 2018. Some of the group therapy was designed to include Parents; indeed, the court ordered that, for Chloe and Felicity, all visitation “shall be therapeutic until further order of the court.”

¶17 At first, the children were reticent to even see Parents, much less participate in group therapy with them. The therapist facilitating the group therapy (Therapist) asked the children— prior to the appointments with Parents—if there were “things that [Therapist] could put into place” that would help them “feel comfortable” with the arrangement, and the children—“together as a collaborative process”—came up with a set of guidelines they thought would help. Among other things, the children asked that there be “no hugs” between them and Parents, “no talking about money,” and “no talking about religion” or “church stuff.” Therapist communicated these child-created guidelines to Parents on October 24, 2018, just prior to the first group therapy session.

¶18      Parents objected to these guidelines, especially the “no talking about religion” rule, and at a hearing held just over a month later, the court removed the “no talking about religion” rule but overruled Parents’ objections to the other rules. During the short time the “no talking about religion” rule was in place, however, Parents—and Father in particular—pointedly refused to abide by it; indeed, Therapist later testified that Father brought up religion in “nearly every visit.”

¶19 For instance, during one session between Father, Felicity, and Chloe, Therapist had to ask Father “seven times” to stop talking about religion. In previous sessions, Therapist had asked Father to focus on “listening” to the girls, because he “spoke so much” during the sessions that the girls typically did not “have the opportunity to share” their feelings. But in this session, and despite Therapist’s attempts to intervene, Father continued his behavior of dominating the discussion and refusing to listen to the girls’ concerns, explaining that “he had the power from God, that he had the power of the priesthood” and they did not, which gave him the right to direct all decisions for the family generally and for the girls specifically. At times physically standing up and towering over the girls, he told them that Brother-in-Law had no right to take decision-making power away from Father and that “God gave [Father] the right” to make decisions for the children as he saw fit. The girls reacted by “hiding” and “cover[ing]” themselves with pillows, and “scoot[ing] closer together” in solidarity. They appeared “very defeated” and “stopped talking”; Therapist observed that they “completely withdrew and shut down and were done having any interaction at that point.”

¶20      As time went on, and recognizing that no progress could be made as long as Father dominated the discussion during therapy, Therapist attempted to make future sessions more “child-focused.” During one session, Chloe and Felicity “started to express” how they often felt bullied by Father, and he responded by stating “that people who get bullied . . . are victims because they allow themselves to be.” He told the girls that it was “their fault” that they were being bullied and that he had done “nothing” wrong. In an effort to get through to Father, Therapist then attempted a “role reversal” technique whereby Felicity would portray Father and Father would portray Felicity; the purpose of this exercise was to give Father an “understanding of how his children felt when he lectured them.” Once Felicity (pretending to be Father) began her lecture, Father “started fighting back instantly.” Therapist informed Father that he was not “doing the role reversal the right way” because, as Father had already explained, “he expects complete compliance” from the children when he lectures. To fully engage with the role-reversal exercise, Therapist instructed Father “to sit there” and “listen” just as he expected his children to do for him. This instruction angered Father, who turned on Therapist, declaring that she should not be “allowing his children to bully him” and that she was “undermin[ing] his parenting skills.” He also accused Therapist of “taking away his religious rights” by engaging in this role reversal, offering his view that Therapist was attempting to indoctrinate the children with her “secular views.”

¶21      In another session, Therapist instructed the children to write down the details of some of the different traumas they had experienced. The plan was to then have each child share their thoughts and have Father “meet the child[ren] emotionally” and “validate” their feelings, and then have an opportunity to explain the intention behind his actions. As the children began to explain what they had written, Father interrupted and began to argue and “discredit” what the children were saying. Father, who was now on his feet, tried to take control of the session, reaching out to grab the papers from the children so he could read them and address them in the manner he saw fit. At this point, Felicity asked “for a two-minute break,” which Therapist agreed would be a good idea. Watching the children defer to Therapist for permission to leave the room further agitated Father. He began telling Therapist that he was the one “who gets to decide what his children do” and that Therapist does not “get to undermine him and his parental authority.” Therapist tried to explain that it was okay to take a brief break, given that things were “getting rough,” and she stated that if Felicity needed a break, she should be allowed to have one. Father disagreed, situating himself in the doorway and blocking the exit. Therapist tried to maneuver Felicity around Father while gathering the children’s papers, at which point Father began “lunging” at Therapist and trying to snatch the papers out of her hands. Therapist was forced to hold the papers behind her back, telling Father the documents belonged to the children and he was not permitted to take them. Father started yelling that these were “his kids” and he was therefore “entitled” to see whatever they wrote on the papers. He then turned his anger on the children, telling them “it was time for them to be punished and that they need[ed] to have their consequence.” At this point, Therapist determined that the session was over, and she began escorting the children to the reception area. Father was following close behind, continuing his tirade and informing Therapist “what [he was] going to do to [Therapist], what [he was] going to do to the caseworkers, [and] what he’s going to do to the kids.”[5]

¶22 After that point, the therapists who had been working with the family came to the collective conclusion that group therapy sessions were doing more harm than good. For one thing, the sessions were “unproductive”; Father had “made it very clear, from the beginning, that he didn’t think [therapy] was necessary” and that he did not need to be there because “nothing needed to change” and he “wasn’t going to make changes.” In addition, and perhaps more significantly, the therapists “no longer felt that it was safe to continue having family therapy sessions that included [Father].” In particular, Therapist wrote in a report that, “[t]herapeutically speaking,” it would “be detrimental to the children to continue family therapy” because it would only further “damag[e] their relationship[s].” She believed, however, that it was critical that individual therapy still continue.

¶23 Given the tenor of the group therapy sessions, the GAL filed a motion to suspend all visitation—even in a therapeutic setting—between Father and the children. Father objected to this request, and he took the opportunity to advance his own view of the group therapy sessions. In a filing he made with the court, Father opined that the children were “being coached and groomed in an attempt to avoid reunification with” Parents. Father believed he—as religious leader of the family—had a right to review all recordings of the children’s individual therapy sessions, and he took issue with Therapist’s refusal to provide him any such recordings. Father concluded his filing with a request that a new therapist be appointed, one that would not engage in the “foisting of secular values” upon his family.[6] At a hearing in January 2019, the court ordered that therapeutic visitation with Chloe and Felicity be “discontinued until the issues are adjudicated.” But the court also indicated that the children “may visit” with Parents “if approved” by the DCFS caseworker and the GAL and “with input from the children’s therapists.” The court did not order that any change of therapists take place.

Mother’s Adjudication

¶24 Mother did not contest the allegations in the State’s petition, admitting to some of them and, with regard to the rest, electing to proceed pursuant to rule 34(e) of the Utah Rules of Juvenile Procedure.[7] Based on the uncontested allegations in the petition, the juvenile court found that all four children were neglected as to Mother. The court determined that Chloe, Felicity, and Hannah were neglected because Mother subjected them “to mistreatment or abuse and/or” because they “lack[ed] proper parental care by reason of the fault or habits of [Mother], and/or” because Mother had “failed to provide proper and necessary subsistence, education or medical care when required or any other care necessary for [the] health, safety, morals or well being of the children.” The court determined that Noah was neglected because he was “at risk of being neglected or abused because another child in the same home [was] neglected or abused.”

¶25      At a dispositional hearing that took place a few weeks later, the juvenile court set reunification as the primary permanency goal, and it ordered that Mother receive reunification services and comply with a child and family plan (Mother’s Plan). In particular, the court ordered Mother to “complete a domestic violence assessment,” complete an “in home peer parenting” program, undergo a “neuro-psychological evaluation,” and “complete individual therapy.”

Father’s Adjudication

¶26      Father, on the other hand, elected to contest the allegations in the State’s petition, and the matter proceeded toward an adjudication trial, which was held over five trial days in March and April 2019. During the first day of trial, Father was represented by counsel, but he then requested that the court “replace his second appointed attorney”—Father had already switched appointed counsel once—which request the court denied. Father then elected to represent himself for the remainder of the trial, although the court determined that Father’s second appointed attorney should “continue as standby counsel.” During the trial, the court heard testimony from the four minor children, Branch President, several DCFS caseworkers, Oldest Sister, Brother-in-Law, and Father.

¶27 Following the trial, the court took the matter under advisement, and it issued a written decision in June 2019. In its conclusion, the court determined that all four minor children had “been emotionally abused” in a “continuing pattern of emotional maltreatment” by Father and that this “ongoing abusive environment has emotionally damaged the children.” The court’s findings, made in support of this determination, are remarkable and are worth describing in some detail.

¶28      The court found, by clear and convincing evidence, that the allegations contained in the State’s petition were generally correct. It found that, in May 2018, Chloe wrote an “alarming letter” to her teacher describing “her home environment” and expressing “her desire to kill herself on a constant basis.” The home environment in question was one dominated and directed by Father, who—in an ostensible attempt to “promot[e] the necessity and value of work and chores”—was “unhealthily” using these principles “to control and subjugate the children.” He assigned “continuous chores” to the children and demanded that each task be performed timely—often using the mantra “housework before homework”—and perfectly, assigning additional chores and requiring the children to stay home from school if chores were not performed to his satisfaction. And he required the children to pay him for even basic household privileges, like eating “fresh food” (as opposed to “expired food stores”), using the computer, and getting rides to school.

¶29      The court found that Father often used physical force—or the threat of it—to control Mother and the children. On one occasion, Father roughly “grabbed the car keys” from Mother’s hand, “which resulted in a cut on [Mother’s] hand.” On another occasion, Father “threw the family dog out the back door because the children would not kneel down for family prayer.” Once when Noah apparently did not kneel down fast enough for family prayer, Father threw “a headlamp” at him. Other times, Father “grabbed” the children “by the wrists to make them do something.” Father once “brought [Noah] to his feet by . . . grabbing the back of his hair,” and another time he “slapped [Hannah] on the mouth.”

¶30 The court found that Chloe was not the only one of the children experiencing suicidal ideations: it found that, “as a result of the continuing emotional trauma, [Felicity] felt trapped and became suicidal; she thought about dying as a way to escape the home.” Parents were not receptive or attentive to Chloe and Felicity in this regard; although Mother did take Chloe to one appointment for a mental health assessment, there was no follow-up or any actual treatment rendered and her “suicidal thoughts were not properly addressed.” Indeed, the children were told not to speak to anyone—including church leaders and DCFS officials—about the conditions in the home, and they were threatened with punishment if they did. Felicity was even told, by one of the Parents, that “if [Chloe] were to commit suicide, it would be her fault.”

¶31 The court also found credible Branch President’s account of his meeting with the girls in August 2018, and found that the meeting occurred as set forth in Branch President’s letter to DCFS (as described above). And it found that DCFS had acted appropriately by seeking a warrant for removal in August 2018.

¶32 The court then examined the statutory definition of “emotional abuse,” as well as Utah case law interpreting that definition. The court specifically noted that a finding of “abuse” requires a finding of “harm,” which—as applied to emotional abuse—requires a finding that a child has suffered “a serious impairment in the child’s growth, development, behavior, or psychological functioning.” With this standard in mind, the court concluded that all four children had been “emotionally abused by” Father and that, in addition, Chloe was also “a neglected child due to the lack of proper parental care” from Father. The court found that the threats Father constantly made to the children had “caused emotional upheaval” in their lives “and negatively impacted [their] development.” And the court found “a continuing pattern of emotional maltreatment of the children which [had] resulted in two of the children considering suicide as an option to end the maltreatment,” and it found that “these suicidal ideations and thoughts demonstrate a serious impairment to” the affected children’s “psychological functioning.” In particular, the court found that Father,

[t]hrough the use of chores, yelling, physical control, the use of access to food, the harm to a family pet, insulting comments, blaming and payment for basic things, and the daily arguing and sometime[s] physically aggressive behavior between . . . [P]arents that the children witness, . . . has created a hostile environment, which is manifested in the children feeling unsafe and being terrified of being at home with [P]arents.

The court concluded by noting that “this ongoing abusive environment has emotionally damaged the children.” While the court did not find “physical abuse as defined” by Utah law, it did conclude that “the children’s testimony was credible about the use of physical force to submit to the requests of [Father].” The court concluded that these “physical actions” on Father’s part “were part of” the “emotionally abusive parenting style” that he “used to intimidate and control the children.”

¶33 Father appealed the court’s adjudication order, but he raised only one argument—a procedural one—in his appellate petition. Specifically, he asserted that “the juvenile court lacked jurisdiction to enter the [adjudication] order because the adjudication trial was not held within sixty days after the shelter hearing,” which Father asserted was required by Utah law. Father mounted no appellate challenge to the substance of the court’s adjudication order. In an unpublished order, we rejected Father’s procedural argument and affirmed the adjudication order, concluding that Father had not preserved his procedural argument in the juvenile court and that Father could not demonstrate plain error.

¶34      Soon after the juvenile court issued its adjudication ruling, it held a dispositional hearing regarding Father. At the conclusion of that hearing, the court set a primary permanency goal of reunification and ordered that Father receive reunification services. The court also ordered that Father “comply with all of the provisions of” a child and family plan (Father’s Plan). Among other things, Father’s Plan required Father to obtain a mental health evaluation, follow any and all recommendations made by the evaluator, and participate in therapy.

The Permanency Hearing

¶35 A few months after entering its adjudication order regarding Father, the court held a permanency hearing, which took place over three trial days in September and October 2019. Again, the court heard testimony from members of the family as well as from therapists, DCFS caseworkers, and others. At the conclusion of the hearing, the court found, as to both Parents, that DCFS had made “reasonable efforts” to facilitate Parents’ compliance with their plans and to facilitate reunification.

¶36      With regard to Mother, the court found that she had made some positive efforts to comply with Mother’s Plan. In particular, Mother had “participated in visits with the children,” “obtained a psychological evaluation and engaged in therapy,” and completed an “assessment for domestic violence.” But the court also noted that Mother “continues to not give any credence to the children’s testimony about the conditions and treatment within the home” and, because of this belief, “no progress has been accomplished in family therapy.” As part of Mother’s Plan, Mother had also been instructed “to provide a safe and stable home.” The court found that Mother was not “capable or willing to do this given the continued denial of any concerns of emotional abuse of the children with her or [Father].” Thus, even though Mother had made some progress “on a number of the services ordered,” the court concluded that she had made insufficient progress “in the most essential areas of family therapy and personal insight to have the children safely returned home at this time or in the next 90 days.” For those reasons, the court terminated reunification services for Mother.

¶37      With regard to Father, the juvenile court found that he had “not substantially complied with” Father’s Plan. First of all, Father had refused “to obtain a mental health evaluation,” despite the fact that DCFS caseworkers had set up appointments for Father to receive the evaluation and had “encourage[d] him to complete” it “prior to the permanency hearing as it would show his efforts in the reunification process.” In addition, the court found that Father had failed to “participate in meaningful family therapy.” And most significantly, it found that Father had failed in his overarching task of providing “an emotionally safe or stable home to which the children may be returned.” The court specifically noted that Father, through his testimony at the hearing, had shown that there had “been no change in his perception of the facts which facilitated the [S]tate’s involvement.” Accordingly, the court terminated reunification services for Father and set adoption as the new “primary permanency goal” for the children, with a secondary goal of permanent custody and guardianship with Oldest Sister.

The Termination Trial

¶38 In October 2019, soon after the permanency hearing, the State filed a petition to terminate Parents’ parental rights regarding all four minor children. But due to a series of delays— caused by numerous factors, including motions to disqualify the judge, attempts to appeal certain orders, requests by both Parents for new counsel, disputes over discovery and subpoenas, and (most significantly) the emergence of the COVID-19 pandemic— the termination trial did not begin until July 2021. And the trial, once it began, was quite lengthy, spanning parts of nineteen trial days and involving the testimony of more than twenty different witnesses. Due to scheduling and pandemic-related concerns, the juvenile court was unable to hold the trial in one large block of time; instead, the trial occurred on scattered dates over the course of eleven months. In the meantime, both Chloe and Felicity turned eighteen and became adults, and they each chose to be adopted— as adults and in separate district court proceedings—by Oldest Sister and Brother-in-Law. By the time the termination trial ended, only Hannah and Noah were still minors and still within the jurisdiction of the juvenile court.

¶39      First to testify at trial were three DCFS caseworkers, who told the court that it had been difficult working with Parents, especially Father. One testified that whenever difficult subjects arose, Father would become “visibly upset,” raise his voice, and stand very close to her and wave his finger. Mother was less confrontational, but the caseworkers reported that the children felt that they could not be entirely honest with Mother “because they felt that she was just collecting information to use against them” and “that she was taking notes to provide to [Father].” At one point, one of the caseworkers had advised Mother that it would be “unlikely” that her reunification with the children would be successful “if [Mother] and [Father] were still together” and if Father continued to refuse to engage in services.

¶40 The court also heard about an incident in October 2019 when Father and a caseworker had gone with Chloe to visit a child psychiatrist (Psychiatrist) to discuss Chloe’s suicidal ideations. Psychiatrist testified that Father made it clear from the beginning that he was against the appointment because he believed there was “nothing wrong” with Chloe and that she “did not need medication.” Father became “confrontational” with Psychiatrist, in terms of both his “voice tone” and his “physical posturing,” and demanded to see a copy of Psychiatrist’s credentials. Father acted similarly toward Psychiatrist’s office staff. Psychiatrist found Father’s behavior so remarkably inappropriate that he wrote a letter to the court—the first time Psychiatrist had done so in decades of practice—asking that Father be kept away from his office and prohibited from contacting his employees regarding Chloe’s medical care.

¶41      Mother’s therapist testified that Mother felt that DCFS became involved only because the children had made up “a bunch of lies” just so they could have “an easier life.” Mother also had a habit, similar to Father’s, of raising her voice and shaking her finger at the therapist and would accuse her “of being involved” in “the efforts” to keep the children “away from [Mother].” The therapist met with Mother seventeen times, but she indicated that, “at the point of discharge,” Mother had made “little progress.”

¶42      The court also heard testimony—from DCFS caseworkers as well as from the psychologist tasked to perform the assessment—that Father refused to undergo a mental health evaluation, as ordered by the court pursuant to Father’s Plan. Father’s stated concern was that he did not want DCFS to have a copy of the psychologist’s eventual report, apparently because he believed that DCFS was “kind of out to get him”; the psychologist explained to Father that he had been retained by DCFS and therefore DCFS was going to get a copy of the report. The psychologist testified that he had completed more than 4,000 assessments for DCFS over several decades and that this was the first time anyone had refused to participate on the ground that they did not want DCFS to receive a copy of the report.

¶43 Mother, on the other hand, did participate in a mental health evaluation; the psychologist who performed her evaluation testified that Mother had dependent personality disorder, obsessive-compulsive personality disorder, and dementia. The psychologist went on to note that she could not rule out aphasia as another possible diagnosis but, to be certain, Mother would need to undergo an evaluation with someone more qualified in speech and language. According to this psychologist, someone in Mother’s position would likely struggle with daily life and would need “a lot of assistance and accommodations.”

¶44      Oldest Sister testified, and she offered her perspective on what it had been like to live with Parents; in addition, she told the court about one incident that took place after she had moved out. She recounted how she would sometimes return to Parents’ house to visit her siblings, and on one such occasion, Father struck Oldest Sister. The incident began with Father demanding that, while Oldest Sister was visiting, she “clean the house” for Parents. Oldest Sister decided to stand up to Father and tell him that she was happy to help around the house while she was visiting but that she was not there to be Father’s “maid.” At this, Father “backhanded” Oldest Sister, knocking her to the floor. While on the floor, Oldest Sister threatened to call the police, at which point Mother “jumped on top” of her, warning her not to call law enforcement and that if she did, it would “ruin” the family.

¶45      Oldest Sister also offered her account of the circumstances that caused DCFS to become involved in this case, and she described that she has a strong bond of love and affection for her siblings and that they are thriving in her care. She noted that she and Brother-in-Law have three children of their own, and she stated that her four siblings have integrated well with her three children. She also testified that her siblings “know that we love them no matter what” and that they are no longer “afraid.” She told the court that she was ready and willing to adopt all four of her siblings—she had not yet adopted Chloe and Felicity—even if it meant that her own relationship with Parents would suffer.

¶46 The court also heard testimony from all four minor children, which testimony we describe here in some detail.

¶47 Chloe’s Testimony: Chloe testified over two trial days in July and August 2021, just before she turned nineteen and was about to leave on a religious mission. Chloe described herself as a religious person, and she noted her appreciation to Parents for teaching her religious principles. But she expressed disagreement with the manner in which Father often exercised his authority within the family, offering her view that Father would “force” religion “down [the children’s] throats” and “use it against” them, which Chloe believed “was tearing [the family] apart.” She stated that it had been the children’s idea to prohibit Father from talking about religion during group therapy sessions. At home, Chloe had never felt like she could express herself or “say anything,” because Father always had to be “in control” and it was always “his way or the highway.” She described how the children were “scared” of Father and would sometimes hide in a closet, “all huddled up together,” because they were “terrified.” Chloe described instances where she had witnessed Father physically hurting members of the family. On one occasion, shortly before Older Brother had moved out, she saw Older Brother arguing with Father when Father “grabbed” Older Brother and “put him in a choke hold.” When Older Brother broke free of Father’s grasp, Chloe witnessed Father “push[ing] him down the stairs.” She confirmed that she had been “suicidal when [she] was in [Parents’] house.” When she told Father about it, his response was, “If you commit suicide, you’re going to go to hell.” She also confirmed that Father had interfered with a medical appointment in which she was attempting to see Psychiatrist to discuss medication and treatment. And she described how Father would make the children eat expired food, even sometimes when it had “mold on it” or when “the expiration date [was] . . . more than two or three or sometimes even five years past.”

¶48 In addition, Chloe offered her view that Father had not “done the things the [c]ourt asked him to do” in order to reunify with his children, and she stated that she did not think she could have meaningful contact with Father going forward. She viewed Father’s unwillingness to engage with reunification services as a sign that he “didn’t want us,” because if Father had wanted them, he “would have gone through the process” that the court set out instead of “fighting so hard to be like ‘I’m right and you’re not going to tell me what I can and cannot do’” regarding the children.

¶49      Chloe was more equivocal about Mother, stating that she believed she could potentially have a good relationship with Mother if Mother were no longer with Father, and that she and Felicity had expressed that sentiment to Mother at one point. In Chloe’s view, Mother acted merely as Father’s “puppet” and did not feel free to offer “her true feelings.” Mother reacted negatively to the girls’ suggestion that she should leave Father, telling Chloe, “[D]on’t you dare ever make me choose.”

¶50      Chloe acknowledged that, as an adult, she had chosen to be adopted by Oldest Sister and Brother-in-Law, and she stated that she had wanted that outcome all along, even when she had been a minor, and that she had chosen adoption because she wanted “a loving and supportive” place “to call home” and didn’t feel like she ever had that with Parents. She noted that there had been challenges, initially, transitioning from “sister to daughter overnight” in relation to Oldest Sister, but she described her life with Oldest Sister and Brother-in-Law as, on balance, “pretty freaking amazing.”

¶51      Felicity’s Testimony: Felicity testified in November 2021, about a month before she turned eighteen. She stated that her home with Parents was “really scary” and not “safe.” Parents “yelled all the time,” fed the children “expired” food unless they paid Father for fresh food, and made the children do endless chores that somehow could never be “done good enough.” She recalled one occasion in which Father kept her up until 2:00 a.m. on a school night because he thought she hadn’t cleaned the kitchen counters well enough; Felicity finally went to bed, but Father came into her room “and poured water over [her] head” to wake her up and made her “go finish” cleaning the counters. And she recalled another occasion in which Father threw her dog outside because she “didn’t kneel down for prayers fast enough.”

¶52 Felicity confirmed that, while she lived with Parents, she struggled with “anxiety and depression” and “thought about killing [her]self.” She perceived Parents as being unsupportive of her during this time; Mother in particular was resistant to helping Felicity obtain medication for her depression, telling her instead to just “read the scriptures.”

¶53      Since being placed with Oldest Sister and Brother-in-Law, Felicity has had visits with Parents, but she testified that she doesn’t like the visits. During the visits, Parents would “act like . . . everything’s fine” and would refuse to engage with the problems in the home. She stated that the visits with Father, in particular, didn’t go well. On one occasion, she asked to take a break while Father was talking to her, and Father became angry, telling her she was not allowed to leave the room while he was addressing her. After that visit, she and the caseworkers came up with a kind of “safe word” for her to use if she needed a break during a visit: she was to say that she needed to use the restroom.

¶54 She confirmed that group therapy with Parents had not been productive because Parents “would just deny” everything and would “refuse to say that they did something wrong.” She offered her perception that Parents, during the reunification period, “haven’t done anything to change.”

¶55      Finally, Felicity testified that she liked living with Oldest Sister and Brother-in-Law because “they’re kind and they care about” her and she feels like she is “actually loved.” She testified that she does not “want to have a relationship with” either one of her Parents and that she wanted to be adopted by Oldest Sister and Brother-in-Law. Indeed, in March 2022—before the trial ended but after she testified and after she turned eighteen—she elected to be adopted by Oldest Sister and Brother-in-Law.

¶56      Hannah’s Testimony: Hannah testified in September 2021, when she was fifteen. She confirmed that she and her siblings had been removed from Parents’ home because “it wasn’t really safe” there. She testified that there was “a lot of contention” in the home and that there was “so much screaming and yelling” that she and Noah would sometimes “go hide in a closet” because they were “really scared.” She discussed several incidents in which Father used physical force, once on Mother—when he forcibly “grabbed the keys” out of her hand—and sometimes on the children: she described Father throwing a “headlamp” at Noah and once “slapp[ing] her across the face.” Often, the yelling was about the children’s chores and involved Parents indicating that they were dissatisfied with the manner in which the children had performed their tasks. She said that “every time” Parents started yelling, she “was afraid they were going to hit” her, which caused her “anxiety” and was “really scary.” She testified that, in those situations, she “couldn’t talk back” because, if she did, she would “get in more trouble.”

¶57      She testified that the post-removal visits were “pretty scary at first” because she worried that Parents “were going to take all of their anger” about the removal “out on” the children. Hannah did not believe that the visits were productive, and she testified that she felt “released” and “happy” when visits with Father were “canceled.” She believed that the group therapy sessions, in particular, were unhelpful, largely because Parents refused to ever acknowledge that they might have done anything wrong.

¶58      And she testified that living with Oldest Sister and Brother-in-Law was “pretty awesome” because she feels “loved there” and feels “like someone cares for” her and that she wasn’t “scared anymore.” She told the court that she wanted to be adopted by Oldest Sister and Brother-in-Law, and that she would “run away” if she were forced to return to Parents’ home.

¶59 Noah’s Testimony: Noah testified in September 2021, a few weeks before his thirteenth birthday. He also testified that Parents’ home “wasn’t a safe environment” due to the constant “yelling and contention,” offering his view that “there was almost never . . . peace and happiness.” He recalled Parents waking him up by spraying him “with a water bottle,” and he recalled the headlamp incident.

¶60 His view of the post-removal visits was that he “didn’t really want to have them” because he didn’t “want to have a relationship with [Parents] anymore.” He found the visits “odd at first” but then, after a while, he just found them “boring” and “a waste of time” because Parents would just ask “the same questions.” He also believed that Parents “wouldn’t try and improve” themselves through the visits and group therapy.

¶61      And Noah testified that he “really like[s]” living with Oldest Sister and Brother-in-Law and that he wants to “live permanently” with them. He testified that Oldest Sister’s home is “a loving environment” where they “help each other . . . try to get better and improve.” He stated that he doesn’t “want [Parents] to be [his] parents,” and that he would not “feel safe” if he was returned to Parents’ custody. He expressed a desire “to have [Oldest Sister and Brother-in-Law] be [his] parents.”

¶62      Finally, the court heard extensive testimony from Parents. Father testified over three trial days and was the only witness to testify on two of those days. Mother also testified over three trial days. For the most part, in the interest of brevity, we present their testimony through our description of the juvenile court’s ruling, set forth immediately below. But in general, Parents refused to acknowledge that they had acted in any way inappropriately, and they defended their behavior as a means of instilling discipline and religious-based values in their children.

The Court’s Post-Trial Ruling

¶63 Following the presentation of evidence, the attorneys presented their closing arguments over parts of two days. After that, the juvenile court took the matter under advisement and, a few weeks later, issued a fifty-three-page written decision. In that decision, the court summarized the testimony that had been presented; in particular, the court spent some twelve pages summarizing Parents’ lengthy testimony.

¶64 The court noted that Father described Oldest Sister as “spoiled” and described Chloe’s expression of suicidal ideations as “play[ing] the suicide card.” Father acknowledged that he had awakened the children with water, thrown a headlamp at Noah, and “raised his voice” during the meeting with Branch President. But he justified these behaviors as merely strict religious-based parenting. The court noted Father’s stated belief that “the [State] had invaded his family” and was “taking over his stewardship,” as well as Father’s contention that the assigned therapists “had replaced his religious beliefs” by instituting rules for the therapy sessions with which he disagreed. And the court noted Father’s testimony that Branch President was “highly judgmental and lacking in integrity,” as well as Father’s stated belief that DCFS, Branch President, and Oldest Sister “got together with malice to engage in child kidnapping and child trafficking” so that Oldest Sister could “enslave[]” the children to “serve [her] family.”

¶65      With regard to Mother, the court noted that she had been married to Father for thirty-five years and “intends to stay married to him.” Mother testified that, at one point, the GAL and DCFS caseworkers told her that “she had to choose between [Father] and the children,” and that she “told them no, that they are not going to break up the family.” The court noted Mother’s belief that she had attempted to comply with Mother’s Plan, and that Mother “wants to have a special relationship with all of her children and would like the family to be together.”

¶66 After summarizing the voluminous testimony presented at trial, the court made certain findings and conclusions. It found that Father “uses religious, familial, and authoritative vocabulary to intimidate the children,” and that he “has used his physical presence” in that manner as well “by standing up, making his body larger, [and] power posing [to] the children.” The court found that Father “has not engaged in purposeful family therapy with the children to address the issues” in the case and that Father “has never acknowledged that he” might bear some responsibility for the situation. The court noted that the “family never moved from square one in talking about the real issues that led [Chloe] to be suicidal and had [Noah] and [Hannah] hiding in the closet.” The court declared that, “[w]ithout addressing and correcting the problems in the home as to parenting style and the environment, the children and [Father] will never have a healthy relationship.” The court found that “there does not exist a bond of love and affection between the children and [Father].” And it observed that Father certainly “has the constitutional right to parent his children” but that the “children also have the right to be free from emotional abuse.” In summary, the court found that Father “is an unfit parent” and that Hannah and Noah could not “safely be returned to [Parents’] home to reside with [Father] since he has made no efforts,” or “only token efforts,” to address and eliminate “the issues of emotional abuse which exist in the home.”

¶67    As to Mother, the court found that she “supported [Father] in his harmful treatment of the children as he tried to control their lives,” and that she “minimized the emotional maltreatment that was occurring in the home and the extent of the emotional trauma” the children experienced. It found that Mother “continues to deny . . . any emotional . . . maltreatment of the children,” that she “laughs when questioned about these things and continues to blame the children and [Oldest Sister] for [DCFS’s] intervention,” and that she “has never considered for a moment that she or [Father] have done anything untoward or harmful to the children.” The court found that Mother’s “continued association with [Father] puts the children at risk should they be returned to her custody and care.” The court found grounds sufficient to justify termination of her parental rights, concluding that Mother was “unable or unwilling to remedy the circumstances that caused the children to be in an out-of-home placement” and that she had made only “token efforts to eliminate the risk of serious harm to the children.”

¶68      Having found grounds sufficient to justify termination of Parents’ rights, the court then turned to the best-interest question. The court determined “that it is in the children’s best interest and strictly necessary to terminate” Father’s parental rights. The court considered whether to impose a permanent custody and guardianship arrangement with Oldest Sister and Brother-in-Law, but it did “not find this alternative to be in the children’s best interest.” The court noted that both Branch President and Psychiatrist had considered Father so aberrant that—in an effort to keep Father away from the children—they had each taken action they had never taken before. And the court noted that, “if permanent custody and guardianship were granted” to Oldest Sister, Father “would still be in the orbit of the two remaining [minor] children” and would be able to “assert[] his will as to basic medical and otherwise personal decisions in the care of the children.” For these reasons, the court concluded that the State had demonstrated, by clear and convincing evidence, that termination of Father’s rights was strictly necessary to advance the children’s best interest. The court therefore ordered that Father’s rights be terminated.

¶69 As to Mother, however, the court reached a different conclusion. The court first noted “the legislatively mandated position that wherever possible family life should be strengthened and preserved,” and it observed that the children were in the custody of a relative—Oldest Sister—and were not “in a home unrelated to” Parents. The court noted that the children’s visits with Mother had gone better than their visits with Father, and that their relationship with Mother—unlike their relationship with Father—does not cause “the children emotional or mental harm.” Accordingly, the court concluded that, with regard to Mother, “the children can be equally protected and benefited by an option other than termination.” The court therefore declined to terminate Mother’s rights, and it placed the children in a permanent custody and guardianship arrangement with Oldest Sister and Brother-in-Law.

The GAL’s Rule 59 Motion

¶70      Shortly after the issuance of the court’s initial post-trial ruling, the GAL filed a motion—grounded in rule 59 of the Utah Rules of Civil Procedure—requesting that the court reconsider its decision not to terminate Mother’s parental rights. The GAL asserted that, in making its decision not to terminate Mother’s rights, the court had viewed matters too much from Mother’s point of view and not enough from the children’s point of view. Mother opposed the motion.

¶71      During a hearing on the motion, the GAL began to discuss events that had occurred since the conclusion of the termination trial, and Mother’s counsel objected. The court determined that it would permit counsel to “put in a memorandum or affidavit” the “additional information supporting” its argument, and it would then allow all other parties “to file an affidavit or other response.” Following the hearing, the GAL filed with the court an affidavit from Brother-in-Law in which he described, among other things, the effects that post-trial visits with Mother had been having on Hannah and Noah.

¶72 A few weeks later, the juvenile court issued a written ruling granting the GAL’s motion. In the introductory paragraph of that ruling, the court noted that, in preparing to make its decision, it had reviewed “the filings and arguments of the parties, the oral argument on the [m]otion and the prior testimony from the termination trial and the original findings and order.” But the court made no specific mention, anywhere in its ruling, of the post-trial events described in Brother-in-Law’s latest affidavit. Instead, the court stated that it was reconsidering its prior ruling and, this time, it was ordering termination of Mother’s parental rights; it explained that, in its initial ruling, it had “failed to give the proper weight to the children’s expressed wishes to be adopted” by Oldest Sister and Brother-in-Law. The court noted that the “children have been direct in seeking to be adopted.” And it noted that it was statutorily commanded to “give the minor’s wishes added weight” if the minor in question was fourteen years old or older, a stipulation that, in the court’s view, applied to all of the children (Noah having recently turned fourteen). After reconsidering its prior decision in light of the added weight given to the children’s stated wishes, the court determined that termination of Mother’s rights was in the children’s best interest, and it therefore ordered that her rights be terminated.

ISSUES AND STANDARDS OF REVIEW

¶73      Parents now appeal, and they raise several issues for our review. First, they contend that the juvenile court violated their constitutional rights. “Constitutional issues, including questions regarding due process, are questions of law,” and the conclusions of the juvenile court on such issues are reviewed “for correctness.” In re adoption of K.T.B., 2020 UT 51, ¶ 15, 472 P.3d 843 (quotation simplified). Along with this argument, Parents also assert that the constitutional issues they raise indicate that the court erred in concluding that DCFS made reasonable efforts to facilitate reunification. To the extent that Parents’ constitutional arguments raise “reasonable efforts” questions, we review the court’s ruling more deferentially. See In re P.J.R., 2023 UT App 27, ¶ 24, 527 P.3d 1114 (“A court’s determination that DCFS made reasonable efforts to provide reunification services involves an application of statutory law to the facts that presents a mixed question of fact and law, requiring review of the juvenile court’s factual findings for clear error and its conclusions of law for correctness, affording the court some discretion in applying the law to the facts.” (quotation simplified)), cert. denied, 534 P.3d 750 (Utah 2023).

¶74      Second, Parents assert that their respective attorneys provided ineffective assistance of counsel at various points throughout the litigation. “An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law.” In re D.G., 2022 UT App 128, ¶ 6, 522 P.3d 39 (quotation simplified), cert. denied, 527 P.3d 1106 (Utah 2023).

¶75 Third, Father argues that some of the juvenile court’s factual findings were against the clear weight of the evidence. “In order to overturn the juvenile court’s decision the result must be against the clear weight of the evidence or leave [this] court with a firm and definite conviction that a mistake has been made.” In re G.D., 2021 UT 19, ¶ 70, 491 P.3d 867 (quotation simplified).

¶76      Finally, while Parents do not take issue with the juvenile court’s ruling that statutory grounds for termination existed, Parents do challenge the court’s ruling that termination was strictly necessary to promote the children’s best interest. We review a trial court’s “best interest determination deferentially, and we will overturn it only if [the 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.” In re D.S., 2023 UT App 98, ¶ 15, 535 P.3d 843 (quotation simplified), cert. granted, Jan. 25, 2024 (No. 20230877). But “because the evidentiary standard applicable in termination of parental rights cases is the clear and convincing evidence standard, we will assess whether the juvenile court’s determination that the clear and convincing standard had been met goes against the clear weight of the evidence.” Id. (quotation simplified).

¶77 Along with her best-interest argument, Mother raises an additional issue: she asserts that the juvenile court erred by allowing the GAL to submit new evidence of post-trial matters in support of the rule 59 motion. “We generally disturb a trial court’s grant or denial of a rule 59 motion only if it constitutes an abuse of discretion.” Bergmann v. Bergmann, 2018 UT App 130, ¶ 12, 428 P.3d 89 (quotation simplified). And we will not reverse that decision if the only errors in it were harmless. See State v. Loose, 2000 UT 11, ¶ 10 n.1, 994 P.2d 1237 (“We do not reverse a trial court for committing harmless error.”); Proctor v. Costco Wholesale Corp., 2013 UT App 226, ¶ 9, 311 P.3d 564 (“[A] harmless error does not require reversal.”), cert. denied, 320 P.3d 676 (Utah 2014).

ANALYSIS

  1. Constitutional Claims

¶78      We first address Parents’ assertion that the “juvenile court process” that resulted in the termination of their parental rights violated their constitutional rights. We describe Parents’ specific claims in more detail below, but before we discuss the particulars of those claims, we pause to emphasize two critical background points, one legal and one factual, that help frame our analysis.

¶79      The legal background point is straightforward and should go without saying: a parent has no general right, whether statutory or constitutional, to abuse or neglect a child for religious reasons.

¶80 Utah’s child welfare statutes regarding abuse of a child have no exceptions allowing abuse to occur on religious grounds. In the child welfare context, “[a]buse” means (among other things) “nonaccidental harm of a child” or “threatened harm of a child.” Utah Code § 80-1-102(1)(a). The governing statute specifies that “reasonable discipline” of a child does not constitute “[a]buse,” nor does “reasonable and necessary physical restraint or force” applied in defense from or protection of the child or others. Id. § 80-1-102(1)(b). But there is no statutory exception excusing abuse simply because it might be religiously motivated.

¶81      Similarly, in the child welfare context, “[n]eglect” includes “action or inaction causing . . . lack of proper parental care of a child by reason of the fault or habits of the parent,” and includes “action or inaction causing . . . failure or refusal of a parent . . . to provide proper or necessary subsistence or medical care, or any other care necessary for the child’s health, safety, morals, or well­being.” Id. § 80-1-102(58)(a)(ii), (iii). The statutory definition of neglect does include one religious-based exception: a parent who is “legitimately practicing religious beliefs and who, for that reason, does not provide specified medical treatment for a child” has not neglected that child. Id. § 80-1-102(58)(b)(i).[8] But other than this narrow exception, Utah’s statutes offer no room for a parent, on religious grounds, to take actions that would otherwise constitute neglect of a child.

¶82      Nor is there any constitutional right to abuse or neglect a child in the name of religion. To be sure, parents have a right to teach their children religious principles and to encourage them to comply with the tenets of a chosen religion. Kingston v. Kingston, 2022 UT 43, ¶ 24, 532 P.3d 958 (stating that “parents have a fundamental right” under the United States Constitution “to encourage their children in the practice of religion”). But such rights peter out where a parent’s religious practices result in mistreatment of a child. See Zummo v. Zummo, 574 A.2d 1130, 1154–55 (Pa. Super. Ct. 1990) (noting that parents are “free to provide religious exposure and instruction” to their child as they see fit, “unless the challenged beliefs or conduct of the parent are demonstrated to present a substantial threat of present or future, physical or emotional harm to the child” (quoted in Kingston, 2022 UT 43, ¶ 67)); see also Prince v. Massachusetts321 U.S. 158, 166–67 (1944) (stating that “the state has a wide range of power for limiting parental freedom and authority in things affecting the child’s welfare,” including in “matters of conscience and religious conviction,” and noting that the state’s “authority” in this regard “is not nullified merely because the parent grounds his claim to control the child’s course of conduct on religion or conscience”); Koch v. Koch, 207 So. 3d 914, 915 (Fla. Dist. Ct. App. 2016) (noting courts’ ability to restrict a parent’s rights where there is “a clear, affirmative showing that the [parent’s] religious activities . . . will be harmful to the child” (quotation simplified)); In re Edward C., 178 Cal. Rptr. 694, 699 (Cal. Ct. App. 1981) (“Mistreatment of a child . . . is not privileged because it is imposed in the guise of freedom of religious expression.”); Amos N. Guiora, Protecting the Unprotected: Religious Extremism and Child Endangerment, 12 J.L. & Fam. Stud. 391, 405 (2010) (“Religious belief and conduct cannot be used as justification for placing children at risk; government, law enforcement and the general public cannot allow religion to hide behind a cloak of ‘religious immunity.’”).

¶83 Next, the factual background point is simply this: as discussed above, Parents have already been adjudicated to have abused or neglected the children, and those adjudications were not substantively challenged on appeal.

¶84 With regard to Father, the juvenile court found—after a five-day adjudication hearing—that Father had “emotionally abused” all four children. The court specifically discussed the rather stringent statutory definition of “emotional abuse” and recognized that it required a finding that a child has suffered “a serious impairment in the child’s growth, development, behavior, or psychological functioning.” See Utah Code § 80-1-102(37)(b). But the court comfortably made such findings with regard to Father, concluding that Father had engaged in “a continuing pattern of emotional maltreatment of the children which has resulted in two of the children considering suicide as an option to end the maltreatment.” The court also found that Father had “created a hostile environment” for the children that caused them to suffer “emotional damage[],” and it found that Father’s “use of physical force” was part of the “abusive parenting style” that he “used to intimidate and control the children.”

¶85 With regard to Mother, the court determined—based on Mother’s own rule 34(e) admissions—that all four children were neglected. In particular, the court concluded that Chloe, Felicity, and Hannah were neglected because Mother subjected them “to mistreatment or abuse and/or” because they “lack[ed] proper parental care by reason of the fault or habits of [Mother], and/or” because Mother had “failed to provide proper and necessary subsistence, education or medical care when required or any other care necessary for health, safety, morals or well being of the children.” And the court found that Noah was neglected as to Mother since he was “at risk of being neglected or abused because another child in the same home is neglected or abused.”

¶86 Mother did not appeal the court’s adjudication order. Father did, but he raised only one argument—a procedural one— in his appellate petition; he mounted no appellate challenge to the substance of the court’s adjudication order. In an unpublished decision, we rejected Father’s procedural argument and affirmed his adjudication order.

¶87 Thus, Parents have been adjudicated to have abused or neglected the children, and those adjudications were either not appealed or were affirmed on appeal. In light of these facts, Father’s attorney agreed, at oral argument before this court, that the adjudication order is now part of the case and that we, for purposes of this appeal, must therefore take it “as it is.” As we understand it, this concession is in keeping with Utah law. An adjudication order is “final for purposes of appeal,” see In re S.A.K., 2003 UT App 87, ¶ 13, 67 P.3d 1037, and “where a final ruling or order of the trial court goes unchallenged by appeal, such becomes the law of the case, and is not thereafter subject to later challenge,” see SRB Inv. Co. v. Spencer, 2023 UT App 120, ¶ 29, 538 P.3d 231 (quotation simplified). We have, on several occasions, refused to allow parents to re-litigate adjudication orders in the context of appeals from later orders. See In re D.G., 2014 UT App 22, ¶ 5, 319 P.3d 768 (stating that “matters relating to the adjudication hearing are barred” from consideration on appeal from a termination order where the parent “did not appeal the adjudication order”); see also In re E.T., 2014 UT App 206, ¶ 2, 335 P.3d 394 (per curiam) (stating that where a parent “failed to timely appeal [an] adjudication order, we lack jurisdiction to consider an appeal of that order” in an appeal from a later order).

¶88 Given these background principles and facts, Parents cannot—and here make no serious attempt to[9]—argue that the adjudication findings should be reversed, or that their underlying abuse and neglect should be excused on religious grounds. Instead, they make narrower constitutional arguments.

¶89      They begin by asserting, in general terms, that the “juvenile court process” that led to the termination of their parental rights violated their constitutional rights to parent their children and, in particular, their right to encourage their children in the practice of religion. They then point out—citing Kingston, 2022 UT 43, ¶ 29— that “any state interference with parents’ right to encourage their children in the practice of religion . . . is subject to strict scrutiny.” And they conclude by arguing that their right to encourage their children regarding religion was infringed during the case, specifically asserting that DCFS “cannot have made reasonable efforts to provide reunification services if it does not employ the least restrictive means available.”

¶90 As examples of what they claim to have been “state interference” with their right to encourage the children in the practice of religion, Parents point to two things: (1) the rule Therapist put in place, at the behest of the children, that Parents not discuss religion with the children during family therapy sessions; and (2) the court’s refusal to grant Father’s request that Therapist be removed from the case and replaced with “a therapist more understanding of his religious beliefs.”[10] We find Parents’ arguments unpersuasive.

¶91 We first discuss Parents’ arguments regarding the rule forbidding them from discussing religion during family therapy. In this case, we need not decide whether Parents’ constitutional right to encourage their children in the practice of religion requires the State to allow Parents to offer such encouragement during therapy sessions provided by the State as part of reunification services. Nor do we need to decide—even assuming there is such a requirement—whether the rule imposed here satisfied strict scrutiny review by being “narrowly tailored to protect a compelling government interest.” Id. ¶ 61 (quotation simplified). Given the record before us, we may avoid these questions because even assuming, for purposes of the discussion only, that there was a constitutional violation in this regard, any such violation was clearly harmless here. See In re A.R., 2017 UT App 153, ¶¶ 11−13, 402 P.3d 206 (affirming the termination of a parent’s rights in the face of an asserted constitutional violation because, even if the court committed constitutional error, the error was harmless); see also In re I.M.L., 2002 UT 110, ¶ 9 n.3, 61 P.3d 1038 (“Generally, we avoid reaching constitutional issues if a case can be decided on other grounds.”). The evidence presented at the termination trial showed that Father paid no heed to the rule in any event and simply went ahead—against the children’s request, communicated through Therapist—and discussed religion with the children during the family therapy sessions.[11] Given Father’s refusal to follow it, Parents do not explain how the rule’s short-lived existence made any difference here; in particular, they make no effort to demonstrate how the therapy sessions would have been different or more productive had the rule not been in place. Moreover, and perhaps most significantly, the rule was only in effect for about five weeks, because the juvenile court ordered it removed at the first opportunity. As soon as Parents asked that the rule be removed, the court granted that request; Parents do not explain what the juvenile court could have done better or more speedily with regard to this rule. In short, we see no reasonable likelihood that the temporary imposition of a rule disallowing Parents to discuss religion during therapy sessions affected the outcome of the proceedings.[12]

¶92 Next, with regard to Parents’ second example of asserted “state interference”—their claim that they had a constitutional right to a therapist whose religious beliefs matched their own— we likewise reject Parents’ argument without entirely reaching its merits. Even if we assume—without deciding, and for purposes of the argument only—that Parents had a constitutional right to a therapist whose religious beliefs matched their own, Parents’ argument on this point nevertheless fails because Parents have not explained exactly how—or even whether—Therapist’s religious beliefs or practices differed from their own. The record is silent as to what Therapist’s religion was—we therefore do not know whether she was a member of Parents’ religion or not. And Father conceded, during his testimony, that his objection to Therapist was not based on whether she shared his religion or not, explaining that he doesn’t “just look at a person on an LDS basis.” He explained, instead, that he wanted the children to have a therapist who agreed with him on the “eternal values or principles” that he “believe[d] govern the universe.” But in his briefing, Father makes no effort to identify what those “values or principles” are, whether they derive from his religion or from some other source, or how they might have differed from Therapist’s religious beliefs and practices.

¶93 Indeed, the GAL argues, with some force, that Father’s objectionable behavior was not grounded in the tenets of any religion but, instead, simply amounted to Father’s personal belief that, as head of the household, he had the right to bully and intimidate his children and to say whatever he wanted whenever he wanted during family therapy sessions. After all, even Father’s own religious leader considered Father’s similar behavior during the meeting at the church to be inappropriate and by no means compelled by tenets of their shared religion. And it is noteworthy that all four children—even after removal and despite the abuse and neglect they experienced—have remained steadfast adherents of the religion they share with Parents. Thus, one might reasonably conclude that Father’s conflict with Therapist had nothing whatsoever to do with specific religious tenets and everything to do with Father’s personality. At a minimum, Parents have not carried their appellate burden of persuading us that the situation is otherwise. And we note that courts have rejected similar claims in analogous cases on the basis that the parent had not “establish[ed] a clear relationship between” his or her “religious faith” and the specific “discipline” imposed on the children. See, e.g.Jakab v. Jakab, 664 A.2d 261, 265 (Vt. 1995); see also In re H.M., 144 N.E.3d 1124, 1148 (Ohio Ct. App. 2019) (noting that the “record is scant on defining the parents’ actual religious beliefs” and whether they motivated the behavior in question).

¶94      For these reasons, we see no constitutional infirmity in the juvenile court’s refusal to grant Father’s request for a different family therapist in this case.

¶95      We note again that Parents’ overarching argument is that

“the State could not have made reasonable efforts if its actions do not pass strict scrutiny.”[13] Yet as to the two ways Parents allege that the State’s actions do not pass muster, Parents have in one instance failed to show any actual infringement of a constitutional right, and in the other they have failed to persuade us that reunification services would have been more successful in the absence of the alleged constitutional violation. Thus, we perceive no error in the juvenile court’s reasonable efforts determination, and we reject Parents’ claims that, during the “juvenile court process,” their constitutional rights were violated.

  1. Ineffective Assistance of Counsel

¶96 Next, Parents assert that they received ineffective assistance of counsel during the termination proceedings. “To establish [an] ineffective assistance of counsel claim, [a party] must show that counsel’s performance was objectively deficient and that counsel’s deficient performance prejudiced the case.” In re D.G., 2022 UT App 128, ¶ 9, 522 P.3d 39 (quotation simplified), cert. denied, 527 P.3d 1106 (Utah 2023). “Failure to establish either prong of the test is fatal to an ineffective assistance of counsel claim,” and therefore we are “free to address [Parents’] claims under either prong.” In re C.M.R., 2020 UT App 114, ¶ 19, 473 P.3d 184 (quotation simplified).

¶97 Parents each make one argument in this regard. We first address Father’s contention that his attorney was ineffective for not objecting to “improper bolstering evidence” presented during the termination trial. Second, we address Mother’s argument that her attorney rendered ineffective assistance “by failing to object to” the terms of Mother’s Plan. For the reasons set forth below, we conclude that neither Father nor Mother has borne their burden of establishing that their attorneys rendered ineffective assistance.

  1. Father’s Claim

¶98      Father asserts that his attorney rendered constitutionally ineffective assistance by failing to object to certain testimony, offered by the State’s witnesses during the termination trial, that Father characterizes as “improper bolstering evidence.” Father points to three statements that he believes amounted to improper bolstering of the children’s accounts of things that happened in the family home. First, he points to Therapist’s statements that Chloe was “not exaggerating her symptoms or faking how she was feeling” when reporting suicidal ideations and seeking medication and that she was being “pretty honest” in her descriptions, as well as to Therapist’s similar statement that the threats of suicide that Chloe and Felicity had made were not “fabricated” and were not “attention getters.” Second, he complains about a different therapist’s testimony that “there was never anything that [Noah] or [Hannah] told [her] relating to their experiences” at home “that would lead [her] to believe they were being dishonest.” Finally, Father identifies Branch President’s testimony that, during his communication with Chloe, Felicity, and Hannah in the August 2018 meeting, he had no concerns that “the girls were making these things up.”

¶99      Father asserts that these statements were inadmissible and that a reasonable attorney would have objected to these statements in an effort to keep them out. He further asserts that, given the importance of the children’s credibility to the issues before the court, the admission of these statements was ultimately prejudicial to him and led the court to believe the children’s accounts over his own.

¶100 We have our doubts about whether a reasonable attorney would have objected to these statements, given the importance of many of them to therapeutic diagnosis and treatment. But even assuming, for the purposes of argument, that Father’s attorney performed deficiently by not objecting to these statements, the admission of these statements did not prejudice Father on the specific facts of this case. To establish prejudice, Father must do more than “show that the errors had some conceivable effect on the outcome of the proceeding.” State v. Samora, 2023 UT 5, ¶ 22, 529 P.3d 330 (quotation simplified). He bears the burden of demonstrating “that the decision reached would reasonably likely have been different absent trial counsel’s alleged errors.” Id. (quotation simplified). Father cannot meet that burden here.

¶101 By the time the termination trial rolled around, the court had already conducted numerous hearings in this case; most notably, it had held a five-day adjudication trial in which it had heard from the children and from various therapists and caseworkers, and it had already entered extensive findings and conclusions. In particular, as noted above, the court had already engaged in the process of determining whether Chloe and Felicity had felt genuine suicidal ideations, and concluded that they had; likewise, the court had already engaged in the process of determining whether Father had emotionally abused the children and concluded that he had. Given that the court had already made these findings, which were not substantively appealed, we cannot conclude that there is any reasonable likelihood that—absent the challenged statements—the court would, at the termination trial, have changed its entire outlook on the events in the home and made antipodally different findings than the ones it had already made at the adjudication trial.

¶102 Under these circumstances, Father cannot demonstrate that he was prejudiced by any deficient performance on the part of his attorney. Accordingly, his ineffective assistance of counsel claim necessarily fails.

  1. Mother’s Claim

¶103 Mother asserts that her attorney rendered constitutionally ineffective assistance by failing to object to the terms of Mother’s Plan and to “the State’s failure to provide the recommended services,” and by not requesting a “modified service plan” better tailored to Mother’s needs. According to Mother, “[r]easonable counsel would have understood the importance of the service plan and the services recommended by it,” and she maintains that, if she had received the benefit of a modified plan, there is a “reasonable likelihood that the court would not have determined that Mother had failed to complete the services.”

¶104 During the termination trial, the psychologist who evaluated Mother testified that Mother has dependent personality disorder, obsessive-compulsive personality disorder, and dementia, and that Mother might also suffer from aphasia but would need additional testing for that diagnosis to be confirmed. The psychologist opined that someone with Mother’s conditions would likely experience some struggles in daily life and may need “assistance and accommodations.” At the time, Mother’s attorney did not object to Mother’s Plan or assert that it should include any additional services to accommodate these diagnoses.

¶105 Now, however, Mother asserts that her attorney should have objected and should have requested that Mother’s Plan include additional services intended to assist Mother with these diagnoses and conditions. But here on appeal, Mother does not identify—let alone meaningfully discuss—any specific services she now wishes counsel would have requested, and she has therefore failed to demonstrate that she was prejudiced by counsel’s failure to make a request. Without identifying any specific services she would have liked to have received, it is impossible for her to show that such services would have been reasonably likely to have made a difference here, especially in the face of the established facts: that Mother was steadfast in her loyalty to Father, that she at all times refused to acknowledge any responsibility for the situation, and that she failed to undertake efforts to remedy the circumstances that caused the children to be in an out-of-home placement.

¶106 Like Father, Mother has not borne her burden of demonstrating that she was prejudiced by any deficient performance on the part of her attorney. Accordingly, her ineffective assistance of counsel claim likewise fails.

III. Challenges to the Juvenile Court’s Factual Findings

¶107 Next, we address Father’s assertion that a handful of the juvenile court’s factual findings were clearly erroneous and unsupported by the evidence presented at the termination trial. Father identifies four such findings; we discuss each of them, in turn, and conclude that none of them are problematic.

¶108 First, Father challenges the court’s finding that Chloe “spoke about suicidal thoughts while she lived at home.” This finding is amply supported by the evidence presented at the termination trial. Chloe testified, on direct, that she had told Father that she was “suicidal,” and that he responded by telling her that if she killed herself she would “go to hell.” On cross-examination, she explained that she had told Father that, when he treats her “like crap,” it makes her “feel like [she] just want[s] to commit suicide.” She did acknowledge that she made the comment in a kind of in-passing way, and that “it wasn’t like [she] sat [Father] down and said, ‘Dad this is a serious thing. I’m seriously considering [suicide].’” But this testimony is more than enough to support a finding that Chloe “spoke about suicidal thoughts while she lived at home.”

¶109 Moreover, the court had already found, in the adjudication trial, that Chloe’s suicidal ideations were genuine. In these earlier proceedings, the court had already learned that Parents had been informed of Chloe’s feelings well before the children were removed from the home and that they had downplayed any concerns, calling Chloe a “drama queen” and indicating that they did not believe her. Under these circumstances, ample evidence supported the court’s finding that Chloe spoke about her suicidal ideations while still living in Parents’ home.

¶110 Second, Father challenges the court’s characterization that Brother-in-Law testified that the children attended post-removal visits with Father “because it [was] what they [were] supposed to do and [they] [didn’t] engage very well.” Father asserts that the court’s characterization of Brother-in-Law’s testimony is inaccurate, and he points to a different statement Brother-in-Law made indicating that the children did not like the visits because “it interrupt[ed] their schedule.” While it’s true that Brother-in-Law said that the visits interrupted the children’s schedule, the record also shows that he testified that the children were “not very engaged” during visits but “[t]hey underst[ood] that’s what they [were] supposed to do, and so they [attended], begrudgingly sometimes, but they [were] there.” We fail to see how the juvenile court’s omission of Brother-in-Law’s additional statement that the visits interrupted the children’s schedule somehow renders the court’s finding erroneous.

¶111 Third, Father challenges the court’s statement that Noah testified that he would not feel “safe” at home. Father argues that this statement is erroneous because, as he sees it, Noah later “retracted that statement” and testified that he “didn’t mean to say safe.” Father then directs us to the portion of Noah’s testimony he believes supports his position. At this point in his testimony, Noah was being asked about the circumstances surrounding Oldest Sister’s departure from Parents’ home. He was specifically asked what he meant by his statement that she left because it “wasn’t safe.” Noah then clarified that he “probably didn’t mean to say safe” and that what he meant to convey was that Oldest Sister had gone through similar experiences to his own in living with Parents and that was the reason she left. But Noah’s statement that he did not mean to say that Oldest Sister left because it was not safe is not a retraction of his earlier statement that it was his personal belief that Parents’ house “wasn’t a safe environment.” Father mischaracterizes the record on this point and has fallen far short of persuading us that the court’s finding on this issue was clearly erroneous.

¶112 Finally, Father challenges the court’s finding that Brother-in-Law testified that the children “stopped hoarding food in their bedrooms.” Father argues that the actual testimony was about “hiding” food—not “hoarding” food—and asserts that there was no evidence that the children were malnourished or underfed while in Father’s care. We do not see a significant difference, in this context, between “hiding” food and “hoarding” food—however characterized, there is no question that the children secreted food in their bedrooms; Brother-in-Law explained that the children were “afraid to ask for more food” so they would take extra snacks to their bedrooms and “store” the food for later. Under these circumstances, we do not consider the court’s characterization of the evidence to have been clearly erroneous.

¶113 Accordingly, we reject each of Father’s challenges to the juvenile court’s factual findings.

  1. Best Interest/Strictly Necessary

¶114 Finally, we address Parents’ various challenges to the court’s conclusions that termination of their rights was strictly necessary to promote the best interest of Hannah and Noah. Both Parents raise a direct challenge to the substance of the court’s decision. In addition, Mother raises additional issues regarding the court’s handling of the GAL’s rule 59 motion. We first discuss Father’s substantive challenge, and then separately discuss Mother’s two arguments.

  1. Father’s Claim

¶115 Before the rights of any parent are terminated, the party seeking termination must establish (1) that “at least one of the enumerated statutory grounds for termination [is] present” and (2) that the “termination of parental rights [is] in the best interest of the affected children.” In re D.S., 2023 UT App 98, ¶ 16, 535 P.3d 843 (quotation simplified), cert. granted, Jan. 25, 2024 (No. 20230877). Parents do not challenge the juvenile court’s determination that sufficient statutory grounds for termination are present, but they do challenge the court’s conclusion that termination of their rights is in the children’s best interest.

¶116 The best-interest inquiry is “wide-ranging” and “asks a court to weigh the entirety of the circumstances” of a child’s situation, including “the physical, intellectual, social, moral, and educational training and general welfare and happiness of the child.” See In re J.M., 2020 UT App 52, ¶¶ 35, 37, 463 P.3d 66 (quotation simplified); see also In re H.F., 2019 UT App 204, ¶ 14, 455 P.3d 1098 (“The best-interest test is broad, and is intended as a holistic examination of all the relevant circumstances that might affect a child’s situation.” (quotation simplified)).

¶117 Our legislature has mandated that termination of parental rights is permissible only when such termination is “strictly necessary.” Utah Code § 80-4-301(1). Our supreme court has interpreted this statutory requirement to mean that “termination must be strictly necessary to promote the child’s best interest.” See In re B.T.B., 2020 UT 60, ¶ 60, 472 P.3d 827. Indeed, a court’s inquiry into the strict necessity of termination should take place as part of the best-interest inquiry that comprises the second part of the termination test. See id. ¶ 76 (“[A]s part of [the best-interest] inquiry, a court must specifically address whether termination is strictly necessary to promote the child’s welfare and best interest.”). And our supreme court has noted 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 the parent’s 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.

Id. ¶ 67 (quotation simplified). “If the child can be equally protected and benefited by an option other than termination, termination is not strictly necessary.” Id. ¶ 66.

¶118 In this case, the court seriously considered one non-termination option: imposing a permanent custody and guardianship arrangement in favor of Oldest Sister and Brother-in-Law. However, for various reasons, the court concluded that this option was not in the children’s best interest, and therefore it ordered termination of Parents’ rights. Parents each challenge the court’s conclusion in this regard.

¶119 With regard to Father, the court stated that it did “not find this alternative [of permanent custody and guardianship] to be in the children’s best interest,” and it offered “[a] couple of examples” to “illustrate the basis for this decision.” First, the court pointed to both Psychiatrist and Branch President, and noted that they had each found Father’s behavior to be so aberrant that they had taken action they’d never before taken: they sent letters to DCFS or to the court indicating their belief that Father was a danger to the children. Second, the court raised a concern about Father retaining residual parental rights, noting that, under a permanent custody and guardianship arrangement, Father “would still be in the orbit of” Hannah and Noah and could “assert[] his will as to basic medical and otherwise personal decisions in the care of the children.”

¶120 Father challenges the court’s best-interest determination, and he makes two arguments, one categorical and one fact-specific. First, Father asserts that parental rights can never be terminated where children are in a kinship placement, as these children are here with Oldest Sister. We reject this position. No Utah statute mandates this position, and we have never so held. See In re A.H., 2022 UT App 114, ¶ 49, 518 P.3d 993 (“We stop well short of holding that, where an acceptable kinship placement exists, it can never be strictly necessary to terminate a parent’s rights.”), cert. granted, 525 P.3d 1279 (Utah 2023). To be sure, “[i]f there exists a completely appropriate kinship placement through which the family can remain intact, the ‘strictly necessary’ showing becomes significantly harder to make.” Id. But such a showing is not impossible; indeed, staking out the categorical position Father advocates makes no sense in this context. It does not take much imagination to think of situations in which a parent’s relationship with a child is so harmful and abusive that it is strictly necessary, if the child’s best interest is to be promoted, to permanently sever that relationship, regardless of whether the child is placed with a relative. We therefore reject Father’s assertion that a parent’s rights can never be terminated if the children are placed with a relative.

¶121 Second, Father takes issue with the court’s residual rights concern. Here, Father points out that, in a permanent custody and guardianship situation, he would retain only four residual rights and duties: “(i) the responsibility for support; (ii) the right to consent to adoption; (iii) the right to determine the child’s religious affiliation; and (iv) the right to reasonable parent-time unless restricted by the court.” See Utah Code § 80-1-102(70)(a). Because the first of these is a duty and the last of these can be restricted by the court, Father asserts that we need be concerned only with the second and the third: Father’s right to consent to adoption and his right to determine the children’s religious affiliation. Father asserts that his residual rights would therefore not allow him to “assert his will” with regard to “basic medical and otherwise personal decisions,” as the juvenile court stated.

¶122 We acknowledge Father’s point, and we note our own recently expressed concern that juvenile courts may, in many cases, be overly concerned about parents retaining residual rights where permanent custody and guardianship arrangements are imposed. See, e.g.In re A.H., 2022 UT App 114, ¶ 55 (questioning “whether—in many cases . . . —a parent’s desire to re-engage in their child’s life should be viewed as negatively as the juvenile court appeared to view it”); In re D.S., 2023 UT App 98, ¶¶ 23–24 (explaining why that case was “not one of those cases” in which “fear of a parent’s residual rights might reasonably counsel in favor of terminating” a parent’s rights).

¶123 But we also note, again, that we review best-interest determinations “deferentially,” and we overturn them only if the 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.” In re D.S., 2023 UT App 98, ¶ 15 (quotation simplified). On a couple of recent occasions, we have reversed juvenile courts’ best-interest/strictly-necessary decisions, even applying this deferential standard, because in our view “the evidence presented at trial did not constitute clear and convincing evidence that termination of [the parents’ rights] would be in the best interest” of the affected children. See In re A.H., 2022 UT App 114, ¶ 38; see also In re D.S., 2023 UT App 98, ¶ 31 (stating that, “[i]n the end, the facts of this case simply don’t add up to strict necessity”). But in other situations—like this one, for the reasons we discuss—the facts as presented at trial lend themselves to more than one possible conclusion. In such cases, our somewhat deferential standard of review will lead us to affirm, because either result will be supported by the facts of the case and will be within the discretion of the court.

¶124 In this vein, we draw an illustrative contrast between the facts of this case and the facts of In re D.S. In that case, the father was incarcerated, and he conceded that he was unable to care for his children and that therefore statutory grounds existed for termination of his parental rights. See 2023 UT App 98, ¶ 13. But he nevertheless resisted termination, asserting that it was not in the children’s best interest for that to occur. Id. ¶ 15. He had maintained regular virtual visits with the children throughout his incarceration—visits that had gone fairly well, although the children sometimes were bored during the visits— and he expressed a desire to “have a stronger relationship with” his children upon his release. Id. ¶ 11. The children were placed with the father’s own mother, who wanted to adopt them. Id. ¶¶ 9, 14. The juvenile court ordered the father’s rights terminated because it viewed adoption by the paternal grandmother as offering “stability,” and because it believed that adoption was necessary to “protect” the children “from [the father’s] desire to have ongoing and frequent visitation” after his release. Id. ¶¶ 13– 14.

¶125 We reversed the termination order. We noted that “there is no indication that [the father’s] continuing relationship with [the children] is harmful to them, rather than merely perhaps inconvenient.” Id. ¶ 24. In particular, we noted that there were no allegations of abuse or neglect regarding the father, and that the children had been “found only dependent—not abused or neglected—as to him.” Id. And we observed that, given “the absence of a ‘harmfulness’ component” to the father’s relationship with the children, there was “no basis for the juvenile court’s view that [the children] need ‘protections against [the father’s] commitment for increased and continued visitation.’” Id. ¶ 27. Relatedly, we noted the absence of any evidence that the father and the grandmother had “the sort of relationship where [the father] would be likely to exercise undue control over custody and care decisions in a guardianship arrangement.” Id. ¶ 32.

¶126 Finally, we placed “almost no stock in” the juvenile court’s reference to the desires of the children, for two reasons. Id. ¶ 29. First, the children were quite young—eleven and six—and the court had made no determination that they were old enough to offer a meaningful opinion as to the differences between adoption and guardianship. Id. Second, and more substantively, “the trial testimony did not support any finding on this issue more specific than that [the children]—quite understandably— wanted to remain in [their grandmother’s] care.” Id. ¶ 30. In particular, “no witness offered any testimony that could support a finding that either of [the children] actually understood and appreciated the distinction between adoption and guardianship, and that, based on that understanding, they preferred adoption.” Id.

¶127 In this case, by contrast, the operative facts are quite different. First, and most importantly, there is a significant “harm” component to this case that was entirely absent in In re D.S. Here, the juvenile court found—after a lengthy adjudication trial—that all four minor children had “been emotionally abused” in a “continuing pattern of emotional maltreatment” by Father and that this “ongoing abusive environment [had] emotionally damaged the children.” Father mounted no substantive appeal from these adjudicated facts, and he agrees that we must take those facts as they are. Moreover, Father failed to take advantage of any of the services provided to him to address his abusive behavior; indeed, the court found—in findings not appealed here—that Father had “made no efforts,” or “only token efforts,” to address and eliminate “the issues of emotional abuse which exist in the home.” At the conclusion of the termination trial, the juvenile court therefore had every reason to believe that Father— if allowed a continuing relationship with the children—would continue his abusive behavior just as he had in the past. Under the particular circumstances of this case, the juvenile court’s concern about residual rights was entirely justified.

¶128 Second, given the emotional abuse issues present here, there is also good reason to believe that Father—if allowed to retain residual rights—would leverage the fact that he still had parental rights to attempt to exercise undue control over custody and care decisions, and would not just limit his role to consenting to adoption and any change in religious affiliation. In the past, Father had attempted to exercise his domineering ways over Oldest Sister, even once “backhand[ing]” her when, as an adult, she declined his demand to clean his house during a visit. And the incident involving Father’s attempt to interfere with Chloe’s medical appointment—even after removal—is well-documented and has already been discussed. We therefore view the court’s finding regarding Father’s propensity to interfere in custody and care decisions as entirely supported by the record here.

¶129 Finally, the court in this case had strong evidence of what the children’s individual desires were. Unlike in In re D.S., all four of the children here, by the conclusion of the trial, were at least fourteen years old, and all of them were able to articulate clear opinions about what their desired outcome was. And all of them told the court, in no uncertain terms, that they wanted to be adopted by Oldest Sister and that they did not want to have any relationship with Father.[14] As noted below, the juvenile court was to give the children’s desires in this regard “added weight.” See Utah Code § 80-3-409(15).

¶130 For all of these reasons, then, we see no reversible error in the juvenile court’s conclusion that, in this case, it was in the children’s best interest for Father’s parental rights to be terminated. Such a decision was within the discretion of the juvenile court and was supported by the record.

  1. Mother’s Arguments

¶131 With regard to Mother, the court initially declined to terminate her rights, instead imposing a permanent custody and guardianship arrangement in favor of Oldest Sister. After consideration of the GAL’s rule 59 motion, however, the court changed course and terminated Mother’s rights along with Father’s, concluding that it had failed to give the proper weight to the children’s stated wishes for adoption.

¶132 Mother challenges the court’s termination order on two grounds. First, she asserts that the court erred by allowing the GAL to submit evidence, in connection with the rule 59 motion, of certain post-trial events. Second, she mounts a substantive challenge, similar to Father’s, to the court’s conclusion that termination of her parental rights was strictly necessary to promote the children’s best interest. We discuss these two arguments in turn.

1

¶133 After oral argument on the GAL’s rule 59 motion, the court allowed the GAL to submit a “Report and Recommendation” that included an affidavit from Brother-in-Law describing events that had occurred after the termination trial. Mother believes that the court erred by considering this “new evidence” in reaching its decision to terminate Mother’s parental rights. We take Mother’s point that evidence of post-trial proceedings should ordinarily play no role in considering whether to grant a new trial. See In re C.L., 2007 UT 51, ¶ 14, 166 P.3d 608 (“A motion for a new trial or amended judgment cannot be based on facts occurring subsequent to trial . . . .” (quotation simplified)). But even assuming, for the purposes of the argument, that the court erred by allowing the GAL to submit this evidence, any such error was harmless here because there is no indication that Brother-in-Law’s affidavit played any role in the court’s decision.

¶134 In its ruling granting the GAL’s motion, the court included an introductory paragraph informing the parties that, before making its decision, it had “review[e]d” rule 59, “the filings and arguments of the parties,” the “prior testimony from the termination trial,” and its “original findings and order.” The court made no specific mention of Brother-in-Law’s post-argument affidavit. And later in its order, when setting forth the actual basis for its decision, it explained that it was amending its initial order because “the children’s wishes or voice were not given proper weight” as mandated by governing statute. It noted again that it had reviewed its own “previous findings and conclusions” as well as “the trial testimony and exhibits,” especially the children’s testimony in which they were “direct in seeking to be adopted” by Oldest Sister. In explaining the substance of its decision, the court made no mention at all of any post-trial events or of Brother-in-Law’s affidavit, and it explained that the basis for its decision rested on entirely different grounds.

¶135 Under these circumstances, any error on the part of the court in allowing the submission of evidence of post-trial events did not affect the court’s grant of the GAL’s rule 59 motion. We therefore see no basis for reversal of the court’s rule 59 decision in the arguably improper submission of Brother-in-Law’s affidavit. See State v. Loose, 2000 UT 11, ¶ 10 n.1, 994 P.2d 1237 (“We do not reverse a trial court for committing harmless error.”).

2

¶136 Next, Mother challenges the substance of the court’s decision to terminate her parental rights. Here, we reach the same conclusion we reached in considering Father’s similar challenge: while the juvenile court could potentially have imposed a permanent custody and guardianship arrangement on these facts, we perceive no reversible error in its conclusion that termination of Mother’s rights was strictly necessary to promote the children’s best interest.

¶137 As an initial matter, the court correctly interpreted the statutes governing a child’s stated desires. Under Utah law, “if the minor desires an opportunity to address the juvenile court or testify,” the court “shall . . . allow the minor” to do so. Utah Code § 80-3-108(4)(a)(ii). Moreover, when “determining whether termination is in the best interest of the child,” the court should consider the relevant factors “from the child’s point of view.” Id. § 80-4-104(12)(b). The juvenile court heard from Hannah and Noah, and thereafter correctly noted that they “were straightforward in stating that they wished to be adopted by” Oldest Sister and Brother-in-Law. The court also noted that, when a minor is fourteen years old or older, “the juvenile court shall give the minor’s wishes added weight” and, if the court’s decision “differs from a minor’s express wishes,” then the court must “make findings explaining” its decision. Id. § 80-3-409(15). At the time the court issued its ruling, Hannah was seventeen and Noah was fourteen; the statute thus required the court to give their wishes “added weight.” And that is exactly what the court did. After further analyzing “the testimony and evidence from the trial on the termination petition, with emphasis on the children’s testimony, and with further review” of the relevant statutes, the court was persuaded that its previous order should be amended and that Mother’s parental rights should be terminated. We perceive no error in the court’s procedure in this regard.

¶138 Mother further challenges the court’s substantive decision, and we acknowledge that, with regard to her, certain factors weigh perhaps more in her favor—or, at least, not as strongly against her—than they do with regard to Father. Her relationship with the children was less actively harmful than Father’s, and there is little if any evidence that she tended to attempt to manipulate her relationship with Oldest Sister. We therefore understand, at some level, the juvenile court’s initial inclination to keep her relationship with the children intact, even while terminating Father’s.

¶139 But ultimately, we agree with the State and the GAL that sufficient evidence exists in this record to support the juvenile court’s reconsidered determination to terminate Mother’s rights as well. There was evidence supporting the conclusion that Mother’s relationship with the children was harmful, even if to a lesser extent than Father’s. And Mother adamantly elected to remain in a relationship with Father, an adjudicated emotional abuser who refused to take steps to remedy the situation. We have previously noted that juvenile courts “have minimal empathy for parents whose strong emotional ties to their spouses or significant others jeopardize their children’s safety.” See In re T.M., 2006 UT App 435, ¶ 20, 147 P.3d 529; see also In re G.B., 2002 UT App 270, ¶ 17, 53 P.3d 963 (upholding a juvenile court’s finding that termination of a mother’s parental rights was in the children’s best interest where the mother continued to foster a relationship with the children’s abusive father, “had no intention of separating from” him, and “continue[d] to deny that any abuse occurred”), cert. denied, 63 P.3d 104 (Utah 2002).

¶140 And the children were adamant that they wanted to be adopted and that they wanted no continuing relationship with Parents, a consideration to which the court was statutorily obligated to give “added weight.” See Utah Code § 80-3-409(15). Mother appears to recognize that the juvenile court’s decision came down to a “weighing of factors,” asserting in her appellate brief that the court “performed an inappropriate weighing of factors.” While a different judge might have weighed the factors differently and opted to keep Mother’s relationship with the children intact, we cannot say that the juvenile court, on this record, committed reversible error by exercising its discretion in the opposite direction.

CONCLUSION

¶141 In sum, Parents have not carried their burden of demonstrating any violation of their constitutional rights. Parents have also not established that either of their trial attorneys provided ineffective assistance. Additionally, we perceive no clear error in any of the challenged factual findings. The juvenile court’s determination that termination of Parents’ parental rights was strictly necessary to advance the children’s best interest was supported by the record, and we perceive no reversible error in the court’s grant of the GAL’s rule 59 motion.

¶142 Affirmed.

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


[1] Hannah and Noah are pseudonyms, which we elect to employ here to avoid continued and potentially confusing repetition of similar-sounding initials.

[2] In cases like this one, where parties are appealing the determination made following a termination trial, “we recite the facts in the light most favorable to the juvenile court findings.” In re S.T., 2022 UT App 130, n.2, 521 P.3d 887 (quotation simplified).

[3] Chloe and Felicity are also pseudonyms.

[4] All four children waived the clergy testimonial privilege to allow Branch President to testify at this and other proceedings throughout this matter.

[5] A second therapist also recalled this incident, later testifying that Father became “aggressive” and was yelling at Therapist about DCFS “framing his family” and how there was a “large conspiracy . . . brought on through DCFS” and “the State of Utah.”

[6] During later testimony, Father testified about the group therapy sessions and, specifically, about the issues he had with Therapist, and he attempted to explain his perception that Therapist did not have “the same values” as Father. When specifically asked whether he wanted a therapist who was a member of The Church of Jesus Christ of Latter-day Saints (LDS), Father stated that he doesn’t “just look at a person on an LDS basis.” He explained, instead, that he wanted the children to have a therapist who agreed with him on the “eternal values or principles” that he “believe[d] govern the universe.”

[7] Mother later asked the court to “set aside” her rule 34(e) plea and requested “that a new trial be ordered to address the allegations” in the State’s petition. See Utah R. Juv. P. 34(e). The basis for this request was that Mother claimed “she was not certain of what a [r]ule 34(e) proceeding involved and the resulting consequences.” The court denied Mother’s request, stating that Mother had “affirmatively waived her right to a trial” and that the court had “confirmed that she understood she was waiving her right to trial.” The court had even gone a step further and “had a colloquy specifically with [Mother] and her counsel wherein she indicated she understood” the implications of proceeding under rule 34(e) “and the resulting findings that would be made as a result of that course of action.”

[8] At the adjudication stage, Mother—the parent who was found to have neglected (as opposed to abused) the children—did not attempt to invoke this religious-based statutory exception. Nor does she invoke it here on appeal. Accordingly, as far as we are aware, this exception is not at issue in this case.

[9] 9. As noted, Parents do not challenge the determination that statutory grounds for termination of their parental rights were present in this case. But Parents do assert, in their briefs, that the State interfered with their “right to make value-based decisions regarding the upbringing” of the children. This argument is not independently developed, and—especially in light of Father’s attorney’s concession at oral argument—we do not interpret it as a frontal attack on the juvenile court’s adjudication findings. However, to the extent it is intended as such, we reject that challenge not only because it is inadequately briefed but also because any challenge to the adjudication findings needed to have been made in an appeal from the adjudication order. See In re D.G., 2014 UT App 22, ¶ 5, 319 P.3d 768.

[10] In addition to these two arguments, Mother complains—in passing, during the “constitutional” section of her brief—that the court improperly “utiliz[ed]” her “continued association with Father as evidence that she had failed to make adequate effort to adjust her conduct to substantially correct the circumstances that led to” the children’s removal. But Mother does not develop this argument; in particular, she makes no attempt to explain how this argument might have constitutional dimension. As noted, infra ¶ 139, it is not improper for a juvenile court to take into account, in making a termination decision, the fact that a parent insists on continuing a relationship with an abusive person.

[11] The rule also seemingly had little to no impact on Mother’s therapy sessions with the children. Mother testified that she only remembered being told about the children’s rules during the first two therapy sessions and, from her recollection, the children “brought all those things up” anyway.

[12] We also wonder whether there was any state action involved here at all, given that the rule in question was envisioned and requested by the children themselves. See In re adoption of B.Y., 2015 UT 67, ¶ 16, 356 P.3d 1215 (stating that the constitution protects “against state action,” not against “the actions of private parties”). But this issue was not briefed by the parties, and we therefore offer no opinion on the subject.

[13] While Parents couch their claim, at times, in the language of “reasonable efforts,” we note that their claim is not a traditional challenge to a juvenile court’s reasonable efforts determination. In particular, Parents do not directly argue that either of the two things they challenge—the requirement that they participate in family therapy with Therapist or the no-talking-about-religion rule—were not part of a “fair and serious attempt to reunify a parent with a child prior to seeking to terminate parental rights.” In re K.F., 2009 UT 4, ¶ 51, 201 P.3d 985 (quotation simplified).

[14] In this case, Parents make no argument that any of the children were too young, or were for any other reason incompetent, to offer trial testimony about their desires regarding placement, adoption, and their ongoing relationship with Parents.

Tags: , , , , , , , , , , , , ,

Is Court-Ordered Therapy Over-Used? By Braxton Mounteer, legal assistant.

Whether you believe that everyone needs (or could benefit from) therapy or that it is only for the most dysfunctional families, you, like most people, likely agree some therapy has a place in family law matters. For all the benefits of court-ordered therapy, however, therapy can be misused and abused.

For therapy to be effective in these kinds of settings, if you don’t have willing and earnest participation, it’s not going to work. It is hard work to confront your own faults and the faults of those who may have hurt you. It’s hard to better yourself. It’s hard to reconcile with past abuse, betrayals, and other kinds of mistreatment. One who is forced into therapy will, in most cases, refuse to participate or even actively oppose it. Is it any wonder why?

Courts often order too much therapy, with “too much” meaning either ordering therapy too often, or ordering therapy for too long. There are many reasons for this, but two of the worst are virtue signaling courts and greedy therapists.

Many judges and commissioners order therapy so that they can’t be accused of not being thorough, of not being sufficiently sensitive and caring and protective. This results in therapy being ordered even when it’s not needed or even warranted. It’s easy for courts to order therapy. It feels good. It’s a cheap, easy way for courts to look good. It doesn’t cost the commissioners and judges a penny to order therapy.

The point of ordering family members into therapy is rarely “eh, see if it helps.” Not everyone needs therapy. Some problems aren’t problems (or big enough problems) to warrant therapy. It’s likely a safe bet that most people might benefit from a little therapy. We’re all flawed. “Better safe than sorry” is tempting, but forcing people into therapy who aren’t dysfunctional can itself cause dysfunction.

I am referring to the emotional equivalent to scraping your knee. Those situations wouldn’t require the emergency room or physical therapy. However, when a court orders therapy left, right, and center, is making something that can help a lot of people into a hammer and every potential problem a nail.

You may say, “Well, even if the only benefit that therapy provides is a place to voice your problems, it is still better than nothing.” and you would be wrong. What if a child is handling the divorce well and putting him or her in therapy makes the child falsely feel he or she is being treated for a non-existent problem? Money wasted on needless therapy could leave one unable to pay for other needs in other aspects of one’s life and the life of one’s children.

If you are an aggressive and abusive husband or an emotionally abusive and cheating wife and your children take issue with that, it’s your fault. Therapy isn’t glue to keep your family together. You can’t expect someone to keep a ship afloat if you are constantly drilling holes in the hull. Sometimes you really are the problem and could benefit from facing and fixing your issues. When courts default to ordering therapy as a catch-all cure-all, they’re phoning it in. No one benefits from that. If you’re afraid to oppose therapy because you’re afraid you’ll be labeled anti-child or anti-caring, don’t be. If the court can’t make a cogent case that therapy is truly necessary or clearly warranted, have the gumption and courage to object. If you don’t, then you have no one to blame but yourself, if needless knee-jerk therapy is ordered in your case

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

Tags: , , , , , , , ,

How do you survive if the narcissist won custody of your kids and you have to accept it?

Hard truths incoming.

When dealing with a co-parent who is afflicted with a personality disorder, do these things, and do them all at the same time:

1) Examine your own personality flaws first. Acknowledge and work to correct your own personality flaws. You may gain insights into the other parent you couldn’t see before. If you must complain about the other parent’s personality flaws, do not do so without acknowledging and working to correct your own personality flaws. Be gracious (and that means when you don’t want to be).

In short: be humble, meaning open-minded, principled, and focused on solving the problem, not on self pity. Otherwise, you risk overlooking some (perhaps all) of the solutions, if there are any, to the problems you have with the other parent.

3) Adjust and adapt. When dealing with a co-parent who is afflicted with a personality disorder, you’re almost surely wasting time if you try to force or even to persuade the other parent to change. It is not fair that you have to do all the adjusting and adapting, but lamenting that fact is a waste. You need to understand and accept (“agree” is even better than “accept”) the fact that adjusting and adapting may be the only way to reach what peace and happiness there is to be had under the circumstances.

4) Engage in all of your dealings with the other parent with class. Fighting fire with fire burns you up emotionally and spiritually. Our children notice far more than we believe. “The true test of a man’s character is what he does when no one is watching.” ― John Wooden

5) Reach out to God, sincerely. Lay your burdens at his feet and ask Him for help and guidance. He will “reach your reaching”.

For you own sake, be this way. It will take time and effort, but it will bring you peace and enable you to make the best of your situation).

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

Tags: , , , , , , ,

Encourage Your Legislators to Vote Against H.B. (House Bill) 272 (2024 Utah General Legislative Session)

According to the “General Description” of H.B. 272, what’s not to like?:

Highlighted Provisions:

This bill:

▸ defines terms;

▸ in certain proceedings involving child custody:

  • specifies requirements for the admission of expert evidence; and
  • requires a court to consider evidence relating to domestic violence or abuse by a parent;

▸ imposes certain requirements and limitations regarding orders to improve the relationship between a parent and a child;

▸ requires the state court administrator to make recommendations regarding the education and training of court personnel involving child custody and related proceedings;

▸ requires that certain protective order proceedings comply with specific standards; and

▸ makes technical and conforming changes.

H.B. 272’s intentions are laudable, but the implementation, if H.B. 272 was made law, would be disastrous (and I choose my words carefully).

We don’t need more laws to prevent domestic violence and child abuse, reason being that more laws never have prevented and never will prevent (because they cannot prevent) domestic violence and child abuse.

Can you identify a single domestic violence victim who wouldn’t have been victimized but for a lack of legislation? Laws in the abstract don’t protect anyone. It’s the fair, effective, creation and enforcement of (needed) laws that protects. Passing more laws cannot guarantee anyone’s safety; laws and court orders don’t stop fists and bullets.

There are real DV and child abuse cases in the courts, but there are far too many fake ones in the courts (more than you likely imagine), and everyone knows why courts are afraid to acknowledge and condemn it: because they’re afraid they’ll be branded as “insensitive” and “uncaring” about DV and child abuse. So judges and commissioners who don’t want to “get it wrong,” overcompensate by “finding” DV and abuse that isn’t there. That way, nobody can claim the courts don’t care, and if innocent people go to prison and become pariahs as a result, “well, better him/her than me.” That’s not justice. That’s not rule of law.

Regarding the proposal in H.B. 272 for amending Section 30-3-10, determining credibility is the sole province of the court. Thus, the problem with “a credible allegation of child abuse” is that few courts can resist the temptation to err on the side of caution by treating virtually any allegation of child abuse as “credible”. To err on the side of caution is still error. Worse, it’s error knowingly committed for the sake of protecting the commissioner or judge from being criticized (or worse) for “getting it wrong.” See the article: Erring on the Side of Hidden Harm.

When judges are told “you need to do a better job identifying protecting DV and child abuse victims,” you’re telling judges to do a job that is not theirs. Overwhelmed judges will (unfortunately) respond to such unfair burdens simply by “finding” more DV and child abuse victims, and then say to the legislature, “Satisfied now?” That benefits no one. It erodes public trust in the courts.

There is a tremendous volume of false DV and child abuse claims. Indeed, I deal with more false claims than real claims at the district court level as a divorce and family law attorney. If you feel judges must “get more training” in the field of DV and child abuse, then requiring them to learn how better to identify real DV and child abuse inherently requires requiring them to learn how better to identify fake DV and child abuse claims.

It is unfair to demand of judges that they compensate for what the litigants might fail to do, i.e., gather and present the evidence necessary to prevail.

“More DV and abuse detection training for judges” sounds good but isn’t. If the state can’t afford more and better judges (and we need to accept that, if it can’t), “more DV and abuse training” is a counterproductive half-measure. If the legislature wants to spend more money on judge training, then spend that money helping judges learn and develop better command of the law, of evidence, and of sound adjudication.

The idea that state district court judges “need more training” in every particular dispute they hear is a problem generally. Our judges cannot become experts on every area of law, nor are they expected to be. All that a judge needs to do competently (and can be expected to do competently) is weigh the evidence presented to him/her correctly and apply the facts to the law that governs the case correctly.

We could “protect kids” from abuse by locking up every parent–that way they can’t abuse their kids. Of course, that way they can’t love and take care of their kids either. We will never solve DV and child abuse with more laws, but we will victimize the innocent if we howl for more witch hunt lawmaking.

Draconian creation and/or enforcement of laws like those proposed by H.B. 272 “protects” some by violating the rights of others. As does legislating and adjudicating on a “better safe than sorry” basis (regardless of whether it’s sincere), instead of on the facts (including the lack thereof). Experts can be helpful, but most cause more confusion than they dispel. Child custody cases today don’t suffer from a lack of expert input, rarely from a lack of needed or even warranted expert input, competent expert input, or justice-promoting expert input. “Expertise” on abuse (whatever this ever-expanding definition of “abuse” is coming to mean) is too subjective and pseudoscientific. This is why HB 272 would ultimately do more harm than good.

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

Tags: , , , , , , , , , ,

Dirty Tricks to Watch Out for in Divorce

I often encounter sneaky spouses who after separation and/or after a divorce action has been filed, start sending text messages and emails to the other spouse making false claims like:

  • “Where did you take my _____” or
  • “Why did you take my _____” or
  • “Bring back my _____ that you took/stole” or
  • “Why did you give away or sell or destroy my _____.”

The items of property mentioned are either safely in the lying spouse’s possession or don’t exist at all. So why make such false claims?

To obtain ill-gotten judgments for money against the innocent spouse for “taking, hiding, destroying, selling, or giving these items away. When spouses who engage in such shenanigans succeed, it’s usually because the innocent spouse takes a “I won’t legitimize your bogus claims with a response.” But that’s exactly the trap into which the lying spouse wants you to fall. Because when you don’t respond, your spouse can then claim “See, my spouse doesn’t deny it!” ‘Think this doesn’t happen? ‘Think it doesn’t work? Think again. Don’t let this happen to you. If your spouse start making such false claims to or against you, respond immediately and unequivocally AND IN WRITING (e-mail is best for this, but text message is OK too—make sure you keep the written record that shows the date and time you sent it to your spouse):

  • “I did not take your _____. It’s in the garage right where you left it.”
  • “There is nothing to bring back because I did not take your _____. It’s in the garage right where you left it.”
  • “I did not give away or sell or destroy your _____ because you don’t own any such thing and never have.”
  • “I did not give away or sell or destroy your _____ because you gave that away to the thrift store two years ago. ”

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

Tags: , , , , , , , , ,

What Good Parents Need to Know About Child Custody Disputes with an Evil Parent

You hear and read on attorney websites stuff like, “Navigating child custody arrangements during divorce can be challenging.” That’s not the half of it. Child custody disputes with an evil parent are nastier and harder (and orders of magnitude more expensive) than most parents expect or can even imagine. I’m not exaggerating. I am really not exaggerating. Really, I am not exaggerating. Here are some crucial tips to consider for a smoother process.

  • If there is no valid child custody order issued by a court, the police cannot help you “enforce” your “child custody rights”. This is because you have no right to control what the other parent does with the children when it comes to exercising custody. The other parent can deny your requests to spend time with the children. He/she can even deny your requests to call the children on the phone or chat with them over video.

 

o   Even if there is a court order that clearly identifies the child custody and parent-time orders, it’s only as good as the will of the courts and the police to enforce it. Many police departments will either outright refuse to assist you in enforcing the order or will act as if “I can’t understand what the order means, so I can’t help you.”

  • Defend your reputation, your good name, and your parental fitness with everything you have.

o   Courts are afraid of making a mistake when they issue child custody and parent-time orders. Evil parents exploit this fear by accusing innocent, loving parents of terrible traits and acts, so that the court will “protect” the children from them by awarding custody to the other parent and/or restricting parent-time. Mere accusations—if they’re scary enough and skillfully spun—can be enough to force a court’s hand.

o   What kinds of accusations? Abuse! Abuse! Abuse! Physical abuse, sexual abuse, emotional abuse, and substance abuse are the most “successful”.

o   If you are accused wrongfully, defend yourself with everything you have. Point out the dearth of support for the allegations. If you can, get overwhelming amounts of proof in your favor. Live as perfect life as you possibly can. Be as perfect a parent as you can. Sure, it’s unfair unrealistic, but don’t expect the court to be sympathetic with you (especially if you’re a father). Don’t give the court any way to take the path of least resistance, to act “out of an abundance of caution,” or to indulge “better safe than sorry” thinking.

  • Document everything pertaining to the child custody and parent-time awards. Gather as much proof as you possibly can in support of your parental fitness, of your efforts to be there for your children, to spend time with them, to take care of them (feed them, bathe and clothe them, help with homework, play with them, exemplify good morals and values, etc.), so that the court cannot deny your requests without looking biased, ignorant, and/or incompetent.

o   Know what factors the court must consider when making the child custody and parent-time awards, then ensure you satisfy every single one of them beautifully (and if you cannot satisfy them all, explain why, and why that should not disqualify you from being awarded as much custody and parent-time as is in the best interest of the children

  • Here are the factors considered in Utah:
  • In a nutshell: the child’s needs and the parent’s ability to meet them
  • In total:

Utah Code § 30-3-10

–          evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, the parent, or a household member of the parent;

–          the parent’s demonstrated understanding of, responsiveness to, and ability to meet the developmental needs of the child, including the child’s:

–          physical needs;

–          emotional needs;

–          educational needs;

–          medical needs; and

–          any special needs;

–          the parent’s capacity and willingness to function as a parent, including:

–          parenting skills;

–          co-parenting skills, including:

(A) ability to appropriately communicate with the other parent;

(B) ability to encourage the sharing of love and affection; and

(C) willingness to allow frequent and continuous contact between the child and the other parent, except that, if the court determines that the parent is acting to protect the child from domestic violence, neglect, or abuse, the parent’s protective actions may be taken into consideration; and

–          ability to provide personal care rather than surrogate care;

–          in accordance with Subsection (10), the past conduct and demonstrated moral character of the parent;

–          the emotional stability of the parent;

–          the parent’s inability to function as a parent because of drug abuse, excessive drinking, or other causes;

–          whether the parent has intentionally exposed the child to pornography or material harmful to minors, as “material” and “harmful to minors” are defined in Section 76-10-1201;

–          the parent’s reasons for having relinquished custody or parent-time in the past;

–          duration and depth of desire for custody or parent-time;

–          the parent’s religious compatibility with the child;

–          the parent’s financial responsibility;

–          the child’s interaction and relationship with step-parents, extended family members of other individuals who may significantly affect the child’s best interests;

–          who has been the primary caretaker of the child;

–          previous parenting arrangements in which the child has been happy and well-adjusted in the home, school, and community;

–          the relative benefit of keeping siblings together;

–          the stated wishes and concerns of the child, taking into consideration the child’s cognitive ability and emotional maturity;

–          the relative strength of the child’s bond with the parent, meaning the depth, quality, and nature of the relationship between the parent and the child; and

–          any other factor the court finds relevant.

Utah Code § 30-3-10.2 (when seeking a joint custody award, and “joint custody” does not necessarily mean “equal time”; in Utah means that a parent exercises no less than 111 overnights with the children annually)

–          whether the physical, psychological, and emotional needs and development of the child will benefit from joint legal custody or joint physical custody or both;

–          the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interest;

–          co-parenting skills, including:

–          ability to appropriately communicate with the other parent;

–          ability to encourage the sharing of love and affection; and

–          willingness to allow frequent and continuous contact between the child and the other parent, except that, if the court determines that the parent is acting to protect the child from domestic violence, neglect, or abuse, the parent’s protective actions may be taken into consideration; and

–          whether both parents participated in raising the child before the divorce;

–          the geographical proximity of the homes of the parents;

–          the preference of the child if the child is of sufficient age and capacity to reason so as to form an intelligent preference as to joint legal custody or joint physical custody or both;

–          the maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents;

–          the past and present ability of the parents to cooperate with each other and make decisions jointly; and

–          any other factor the court finds relevant.

 

Utah Code Section 30-3-34 (this is for determining parent-time, but the factors are equally relevant to the child custody award)

–          whether parent-time would endanger the child’s physical health or mental health, or significantly impair the child’s emotional development;

–          evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, a parent, or a household member of the parent;

–          the distance between the residency of the child and the noncustodial parent;

–          a credible allegation of child abuse has been made;

–          the lack of demonstrated parenting skills without safeguards to ensure the child’s well-being during parent-time;

–          the financial inability of the noncustodial parent to provide adequate food and shelter for the child during periods of parent-time;

–          the preference of the child if the court determines the child is of sufficient maturity;

–          the incarceration of the noncustodial parent in a county jail, secure youth corrections facility, or an adult corrections facility;

–          shared interests between the child and the noncustodial parent;

–          the involvement or lack of involvement of the noncustodial parent in the school, community, religious, or other related activities of the child;

–          the availability of the noncustodial parent to care for the child when the custodial parent is unavailable to do so because of work or other circumstances;

–          a substantial and chronic pattern of missing, canceling, or denying regularly scheduled parent-time;

–          the minimal duration of and lack of significant bonding in the parents’ relationship before the conception of the child;

–          the parent-time schedule of siblings;

–          the lack of reasonable alternatives to the needs of a nursing child; and

–          any other criteria the court determines relevant to the best interests of the child.

Utah Code Section 30-3-35.2 (when seeking an award of equal physical custody)

–          A court may order the equal parent-time schedule described in this section if the court determines that:

–          the equal parent-time schedule is in the child’s best interest;

–          each parent has been actively involved in the child’s life; and

–          each parent can effectively facilitate the equal parent-time schedule.

–          To determine whether each parent has been actively involved in the child’s life, the court shall consider:

–          each parent’s demonstrated responsibility in caring for the child;

–          each parent’s involvement in child care;

–          each parent’s presence or volunteer efforts in the child’s school and at extracurricular activities;

–          each parent’s assistance with the child’s homework;

–          each parent’s involvement in preparation of meals, bath time, and bedtime for the child;

–          each parent’s bond with the child; and

–          any other factor the court considers relevant.

–          To determine whether each parent can effectively facilitate the equal parent-time schedule, the court shall consider:

–          the geographic distance between the residence of each parent and the distance between each residence and the child’s school;

–          each parent’s ability to assist with the child’s after school care;

–          the health of the child and each parent, consistent with Subsection 30-3-10(6);

–          the flexibility of each parent’s employment or other schedule;

–          each parent’s ability to provide appropriate playtime with the child;

–          each parent’s history and ability to implement a flexible schedule for the child;

–          physical facilities of each parent’s residence; and

–          any other factor the court considers relevant.

o   Be a class act at all times in your dealings with the other parent, no matter how much mud is slung and no matter how uncooperative antagonistic the other parent is. All the goodwill you’ve built up over a lifetime can be discounted and dismissed in an instant with just one angry outburst (no matter how much the other parent had it coming)

o   You do not build yourself up as a parent by tearing or trying to tear the other parent down. Be as honestly complimentary of the other parent as you can. No, don’t deny serious defects and faults, but unless the other parent is truly a monster, don’t try to paint the other parent as one—it’s not only evil, but it can backfire.

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

Tags: , , , , , , , , ,

Divorce and Social Media By Braxton Mounteer

Most people fundamentally misunderstand what the Internet and social media are. Many believe that social media is a web of interconnections where you can send and receive updates about your life or the lives of people you are involved in with those who are connected to you. This is completely true, but not truly complete. Social media is like what happens when groups of people chat around campfires in the dark in close proximity to each other. The sound travels. Every other group can hear what you and your friends are discussing around your campfire. So can the things hiding in the woods.

Another thing that people misunderstand is that what is posted on social media is a nearly permanent record. Every post you make might as well be etched into stone. There will almost always be a record of it somewhere, whether you delete it from your personal account.

What does this have to do with divorce? Your social media activity isn’t a tiny echo chamber of your inner circle or your personal diary. You aren’t screaming into the void. If you air your dirty laundry on social media, there will likely be a permanent record of it, and—for anyone who tries hard enough—for prying eyes and ears to access.

What you do and say online can be used against you. And it likely will be used against you.

You would be best served by keeping your online “mouth” shut. Keep your social media “business as usual,” post the updates about your children’s milestones and major life achievements that you normally would. Post the funny meme. But don’t bash your spouse online. Don’t pour your heart out about your personal vices and demons online. Don’t discuss your divorce or subjects that can affect your divorce online. Some things are better left unsaid.

Tags: , , , , , , , , ,

In re G.H. – 2023 UT App 132 – juvenile court grandparent guardianship

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF G.H. AND R.H.,

PERSONS UNDER EIGHTEEN YEARS OF AGE.

L.G.,

Appellant,

v.

R.G. AND R.G.,

Appellees.

Opinion

No. 20220920-CA

Filed November 2, 2023

Seventh District Juvenile Court, Price Department

The Honorable Craig Bunnell

No. 1210014

Steve S. Christensen and Clinton Brimhall,

Attorneys for Appellant

Colleen K. Coebergh, Attorney for Appellees

Martha Pierce, Guardian ad Litem

JUDGE DAVID N. MORTENSEN authored this Opinion, in which

JUDGES RYAN M. HARRIS and AMY J. OLIVER concurred.

MORTENSEN, Judge:

¶1        The maternal grandparents of two children filed a petition for guardianship, alleging neglect by both parents and abuse at the hands of the children’s father. The guardianship was contested, and a trial was held. After trial, the juvenile court granted the petition, finding facts consistent with the allegations of the petition and determining that the guardianship was in the best interest of the children. Further, the juvenile court determined that the mother’s parent-time, if any, would take place at the unfettered discretion of the grandparents. The mother appeals, claiming the juvenile court erred in determining neglect, erred in failing to order parent-time, and wrongfully denied a motion to change venue as to one of the children. For the most part, we affirm. However, the juvenile court’s findings regarding the mother’s parent-time rights are inadequate, and we therefore remand this matter for the entry of further findings and conclusions as necessary.

BACKGROUND

¶2        AG (Mother) and JH (Father) are the natural parents of GH and RH (the Children).[1] In April 2022, Mother’s parents, RG and RG (Grandparents), petitioned for guardianship and custody of the Children, alleging that such a placement was in the best interest of the Children due to Father’s abuse and both parents’ neglect. A few days later, Grandparents filed an ex parte motion for temporary custody of the Children, and the juvenile court granted the request.

¶3        At a pre-trial hearing, Mother asked for an expedited evidentiary hearing regarding temporary custody. The court declined that request and instead held a combined adjudication and disposition hearing over two trial days in July and August 2022.

¶4        After that hearing, the court issued an order setting forth findings of fact and conclusions of law regarding adjudication and disposition. Because Mother does not dispute the findings of fact, we recite the facts directly from the juvenile court’s findings.[2]

¶5        The court took judicial notice of a 2019 order in which the same court terminated Mother’s parental rights to an older child, who was adopted by Grandparents shortly thereafter. Mother stated she had “no idea” why her maternal rights for the older child were terminated, but the record shows that it was primarily due to Mother’s neglect.

¶6        Mother moved in with Grandparents in Price, Utah, in July 2019 and lived with them through the first part of January 2022. From June through September 2021, Mother worked evenings (5:00 p.m. to 9:00 p.m.). She had surgery for “a minor thing” in September 2021. Mother was unemployed until she obtained full-time employment in December 2021. At this job, she worked ten-hour shifts (10:00 a.m. to 8:00 p.m.) four days per week.

¶7        While living with Grandparents, Mother “relied on [Grandparents] almost exclusively and for nearly everything for [the Children] . . . . [Grandparents] were the primary caretakers for [the Children’s] day-to-day physical, developmental, medical, and financial needs.”

¶8        With regard to the Children’s physical needs, Mother “did very little to make arrangements for [the Children], provide basic care, or assist with household duties,” even when asked to do so. She did not provide “day-to-day food or meals” for the Children, nor did she help with potty training GH.

¶9        Regarding developmental needs, Grandparents provided for “the vast majority of [the Children’s] indoor and outdoor activities, toys, and one-on-one parent-role interactions.” Mother “did very little to actually parent [the Children] or care for their needs,” and she did not assist with “mothering” the Children. When asked to care for the Children, other than watching the Children for about five hours some weekdays when Grandparents were both working, “Mother would often say she was too tired, too busy, be on her phone or smoking, or on her bed resting or lounging.”

¶10      Mother’s sister (Sister) would often visit Grandparents’ house (about two times each week when Grandparents were not there), and she observed Mother being “verbally abusive or terse with [the Children],” leaving them “unattended or unsupervised, not changing diapers as needed, or not caring for them.” The court also found, based on Sister’s testimony, that Mother would often “come to [Sister’s] house (at times unannounced) without child­care supplies or clothes,” asking for help with the Children because Mother was “tired, needed a break, going out with friends, or going to work (although, at times, she did not go to work, but went back to [Grandparents’] house to sleep or smoke).”

¶11 Financially, Mother sometimes shared her government food assistance card but relied on Grandparents for most of the Children’s financial needs. She also relied on Grandparents to provide birthday or Christmas gifts for the Children. She did, however, reimburse Grandparents a few hundred dollars and paid for some daycare.

¶12 Regarding medical needs, Mother took the Children for immunizations, but she did not take them to other types of medical appointments or help Grandparents when the Children were sick with ear infections, colds, or other maladies.

¶13 In January 2022, Mother moved in with another relative (Step-Grandmother) in Highland, Utah, which was twenty minutes from her newly acquired job. Grandparents continued as GH’s primary caretakers in Price, but RH moved to Step-Grandmother’s house with Mother.

¶14 During this time-period, RH received daily and weekly care in four different cities separated by nearly a hundred miles and by four different caregivers besides Mother, namely Step-Grandmother, Great-Grandmother, Father’s mother, and Grandparents. Essentially, Grandparents and Great-Grandmother would relieve Step-Grandmother when she was not available to watch RH. Sometimes Mother would be the one to take RH to Great-Grandmother’s house. Step-Grandmother, Grandparents, the maternal great-grandmother (Great-Grandmother), or Mother transported RH, and sometimes GH, from house to house on weekends. Mother’s mother handled most of the Children’s care coordination, “unless Mother needed to preplan to accommodate her own work schedule.” RH did not stay in “one consistent place or house” during this time-period; RH was at a “different house almost every day of the week, and each week was different than the last.”

¶15 Watching Mother with the Children “scared” Step-Grandmother, and she never saw Mother being “a mother” to the Children. Mother was “negative verbally” to the Children and “put her own wants and needs before RH’s needs.” Mother would get upset when Step-Grandmother wanted to go out, making it necessary for Mother to watch RH.

¶16 Mother provided very little assistance to Step-Grandmother with household duties, except for washing her and RH’s clothes, and “Mother’s bedroom was always cluttered (with RH’s clothes on the floor) and never cleaned.” Mother put RH to bed half the time, but Step-Grandmother noted that the time was never consistent, as Mother sometimes would come home as late as 10:30 p.m. On some Friday nights, Mother did not come home at all until later that weekend.

¶17 While living with Step-Grandmother, Mother changed RH’s diaper only about once per day; smoked cigarettes “all the time”; was “always on her phone”; did not give baby food or regular feeding; and did not read to, play with, sing to, or bathe RH.

¶18      In mid-March 2022, Mother moved into a rental house in Murray, Utah, with RH. Although Step-Grandmother no longer provided RH daily care after the move, Mother still used Grandparents, Great-Grandmother, and Father’s mother to care for RH. Mother’s work schedule changed to eight hours per day, five days per week (12:00 p.m. to 8:00 p.m. or 2:00 p.m. to 10:00 p.m.). Grandparents primarily watched RH on weekends. GH continued to live with Grandparents.

¶19 On April 5, 2022, Mother picked up Father from prison, and he lived with Mother from then until at least July 2022, when Mother learned—on the first day of trial through Father’s probation officer’s testimony—that Father had used drugs just a week before. Before hearing this testimony, “Mother did not believe he would use drugs.” Mother allowed Father to watch the Children unsupervised, and until trial, she had planned to continue living with him, despite knowing that Father was convicted of assaulting someone in prison two months prior to his release and despite complaining to Grandparents that Father was “controlling and threatening her, taking her phone and car, refusing to work, and taking advantage of her.” Father’s assault conviction “did not cause her any concern” about him being with her or the Children.[3] The court found that Mother’s reintroduction of Father into the Children’s lives “was an emphatic demonstration to the Court of Mother’s poor judgment and her continued inability (since having her parental rights terminated to an older child in 2019 and since [the Children] were born) to put [the Children’s] needs and welfare before her own.”

¶20 Mother made efforts to obtain a full-time job and to perform well at her job to provide for her and the Children.[4] But the court concluded that Mother “did not progress over the last three years as was necessary and appropriate for her to meet the daily needs” of the Children. Instead, Grandparents, Step-Grandmother, Great-Grandmother, and others provided “the crucial day-to-day parenting and caretaking that are necessary for [the Children] to thrive developmentally and otherwise.”

¶21 The court also found that the Children “thrived living together with [Grandparents] prior to Mother moving out of [Grandparents’] home in January 2022” and after being reunited in Grandparents’ home in April 2022. The court noted that Grandparents “demonstrated their reliability and consistent efforts to provide for all of [the Children’s] day-to-day physical, mental, emotional, developmental, medical, financial, and educational needs.” The court emphasized that the Children should be living together.

¶22      Based on these factual findings, the court concluded there was clear and convincing evidence that Mother neglected the Children. The court also concluded, based on clear and convincing evidence, that the Children’s best interests would be met by granting Grandparents permanent custody and guardianship. Additionally, the court ordered that Mother’s and Father’s parent-time with the Children “shall be at the discretion and under the control or management of [Grandparents].”

¶23 As relevant here, Mother moved the court to dismiss Grandparents’ petition for improper venue or to transfer venue, which the court denied. Mother now appeals.

ISSUES AND STANDARDS OF REVIEW

¶24 Mother argues that the juvenile court erred when it determined that the Children were neglected. Mother clarifies that she is not disputing the court’s findings of fact but the court’s application of these findings to the law; therefore, “we accept these findings as true in our analysis on appeal.” d’Elia v. Rice Dev., Inc., 2006 UT App 416, ¶ 24, 147 P.3d 515. “We view the question presented here as law-like because it concerns whether the facts as constituted meet the legal standard of the statute. . . .

Accordingly, we review the issue presented here giving no deference to the juvenile court.” In re A.B., 2021 UT App 91, ¶ 10, 498 P.3d 894, aff’d, 2022 UT 39, 523 P.3d 168.

¶25 Mother also argues that the juvenile court erred in not awarding her parent-time and thus failing to give due consideration to her residual parental rights. “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).

¶26 Finally, Mother argues that the juvenile court erred in denying her motion to dismiss or transfer based on venue. Venue “is a question committed to the district court’s discretion, which we review for an abuse of discretion.” Davis County v. Purdue Pharma, LP, 2020 UT 17, ¶ 7, 463 P.3d 619.

ANALYSIS
I. Neglect

¶27      “If, at the adjudication[5] hearing, the juvenile court finds, by clear and convincing evidence, that the allegations contained in the abuse, neglect, or dependency petition are true, the juvenile court shall conduct a dispositional hearing.” Utah Code § 80-3­402(1). “The dispositional hearing may be held on the same date as the adjudication hearing . . . .” Id. § 80-3-402(3). At the dispositional hearing, the juvenile court then “may vest custody of an abused, neglected, or dependent minor in the division or any other appropriate person.” Id. § 80-3-405(2)(a)(i). “If a minor has been placed with an individual or relative as a result of an adjudication . . . , the juvenile court may enter an order of permanent legal custody and guardianship with the individual or relative of the minor.” Id. § 80-3-405(2)(d)(i). “Clear and convincing evidence is an intermediate standard of proof that implies something more than the usual requirement of a preponderance of the evidence; and something less than proof beyond a reasonable doubt. Put differently, this standard requires the existence of facts that make a conclusion very highly probable.” In re K.K., 2023 UT App 13, ¶ 22, 525 P.3d 519 (cleaned up), cert. denied, 531 P.3d 731 (Utah 2023).

¶28      Neglect is statutorily defined, and can be proved in any one of several ways. See Utah Code § 80-1-102(58)(a)(i)–(vi).[6] While the juvenile court found neglect under several subsections, to affirm we need conclude only that neglect was established under one of the bases. See In re E.F., 2013 UT App 13, ¶ 3, 295 P.3d 1165 (per curiam) (upholding juvenile court’s conclusion that mother neglected child under the sole basis of lack of proper parental care by reason of parent’s faults or habits). Among other bases, the juvenile court found neglect under subsection (ii), which defines neglect as “action or inaction causing . . . lack of proper parental care of a child by reason of the fault or habits of the parent, guardian, or custodian.” Utah Code § 80-1-102(58)(a)(ii). We agree with the juvenile court that the evidence supported a finding that this basis for neglect had been proved.

¶29      First and foremost, the factual findings demonstrated that Mother did not attend to the Children’s basic health and welfare needs, such as feeding and bathing them, changing their diapers regularly, and obtaining medical care for them when they were sick. Mother also did not show any interest in potty training GH.

¶30      Moreover, Mother did not behave in a manner consistent with parenting a child. For example, Mother did not demonstrate a desire to play with the Children, read or sing to them, or buy them birthday and Christmas presents. And Grandparents were the ones to provide the Children’s indoor and outdoor activities and toys rather than Mother.

¶31      Similarly, the findings revealed that Mother lacked interest in being around the Children, and she would refuse to care for them when asked by the family members with whom she was living. Mother would complain that “she was too tired” or “too busy,” or she would prefer to “be on her phone or smoking, or on her bed resting or lounging.” Likewise, Mother would drop off the Children unannounced at Sister’s house—“without child-care supplies or clothes”—because Mother was “tired, needed a break, [or was] going out with friends, or going to work,” although, at times she went back to Grandparents’ house “to sleep or smoke” instead. Mother also would get upset when Step-Grandmother wanted to go out some evenings, thus leaving Mother to care for the Children. In addition, “Mother did not do household duties when asked to do so.”

¶32 Although the court did acknowledge Mother’s commendable efforts with her current job, it still found that Mother “did not progress over the last three years as was necessary and appropriate for her to meet the daily needs of each of [the Children].”

¶33 Furthermore, the findings demonstrate that Mother was not troubled by Father being with her or the Children. Even though Mother knew that Father was convicted of assaulting someone while in prison and said that he was “controlling and threatening her, taking her phone and car, refusing to work, and taking advantage of her,” Mother allowed Father to watch the Children unsupervised and, until learning of his continued drug use at trial, had planned to go on living with him. Additionally, despite Father’s history with drug use, Mother “did not believe he would use drugs.” Mother’s reintroduction of Father into the Children’s lives demonstrated to the court “emphatic[ally]” that Mother showed “poor judgment and [a] continued inability (since having her parental rights terminated to an older child in 2019 and since [the Children] were born) to put [the Children’s] needs and welfare before her own.”

¶34 The court also highlighted that during the time when Mother lived with Step-Grandmother, the Children were cared for by many different caregivers other than Mother. The court found that Grandparents were the main caregivers for GH, and the court emphasized that RH’s daily and weekly care was provided by five different caregivers located in four different cities. Mother argues that a “child is not without proper parental care solely because that care is not always at the hands of a parent” and that it is “not uncommon for parents, especially single working mothers, to place children in daycare or arrange for care with family.” In support of her argument, Mother cites In re A.B., 2021 UT App 91, 498 P.3d 894, aff’d, 2022 UT 39, 523 P.3d 168, where we held that a child is not neglected if the child receives proper parental care, “even if not always at [a mother’s] hand.” Id. ¶ 20.

¶35 We agree with Mother that it can be completely appropriate for parents to arrange for others to help them in caring for their children, and we empathize with single parents whose childcare arrangements may not always seem ideal to others of greater means and opportunity. But Mother’s behavior in this case is distinguishable from that in In re A.B. Here, the juvenile court found, and Mother does not dispute, that Mother did “very little to make arrangements” for the Children, would drop off the Children at Sister’s “at times unannounced,” would not come home when she was expected to, and would not take care of the Children when at home. In contrast, In re A.B. concerned a child who spent summers with “welcoming relatives[,] . . . and on agreement, summer turned into a whole year.” Id. ¶ 1 (emphases added). Moreover, that mother arranged the child’s care with the relatives, id. ¶¶ 2–3, and she never refused to take care of her child when she oversaw the child’s care, id. ¶ 19. Therefore, Mother’s reliance on In re A.B. misses the mark.

¶36 Based on the foregoing, we conclude that the juvenile court’s findings of fact meet the legal standard of neglect. See Utah Code § 80-1-102(58)(a)(ii). Therefore, we affirm its grant of permanent custody and guardianship to Grandparents. See id. § 80-3-405(2)(d)(i).[7]

II. Parent-Time

¶37      Mother next argues that the juvenile court erred by failing “to even consider providing Mother parent-time in the final analysis order.” While we don’t quite agree with Mother’s characterization of the order as a complete failure to consider Mother’s residual rights, we agree that remand on this issue is necessary.

¶38 When the juvenile court vests custody of a child in someone other than the child’s natural parent, the court “shall give primary consideration to the welfare of the minor.” Utah Code § 80-3-405(2)(a)(ii)(A). Here the court did so by awarding custody to Grandparents, whom the court found to “have demonstrated their reliability and consistent efforts to provide for all of [the Children’s] day-to-day physical, mental, emotional, developmental, medical, financial, and educational needs.”

¶39      But the court’s responsibilities when awarding custody do not end there. The court also “shall give due consideration to the rights of the parent or parents concerning the minor.” Id. § 80-3-405(2)(a)(ii)(B). This includes consideration of awarding reasonable parent-time. Specifically, the statute provides that “[a] parent of a minor for whom a guardian is appointed retains residual parental rights and duties.” Id. § 75-5-209(5). These residual parental rights include “the right to reasonable parent-time unless restricted by the court.” Id. § 80-1-102(70)(a)(iv). Thus, our legislature intended for juvenile courts to give careful thought to an award of parent-time when granting custody and guardianship to someone else. And we note that parent-time is significant because it offers “the parent the possibility of maintaining a meaningful relationship with the child despite lack of physical custody.” Moreno v. Board of Educ., 926 P.2d 886, 890 (Utah 1996).

¶40      Yet here, the juvenile court simply stated that Mother’s and Father’s parent-time with the Children “shall be at the discretion and under the control or management” of Grandparents, without making any findings regarding the amount of parent-time that would be reasonable. Instead, the court delegated that determination entirely to Grandparents. And this could lead to Grandparents denying Mother any parent-time[8] without the court making any findings of fact to justify such a denial.[9] Here, we find the court’s findings and conclusions regarding parent-time to be inadequate.

¶41      A juvenile court’s factual findings “must be sufficiently detailed and include enough subsidiary facts to clearly show the evidence upon which they are grounded.” In re S.T., 928 P.2d 393, 398 (Utah Ct. App. 1996); see also In re M.G., 2003 UT App 313U, para. 5 (holding that “a review of the court’s oral findings reveals the subsidiary facts and basis for the juvenile court’s written findings and demonstrates that the written and oral findings, taken together, are sufficiently detailed to permit appellate review”). “Put another way, findings are adequate when they contain sufficient detail to permit appellate review to ensure that the [juvenile] court’s discretionary determination was rationally based. Indeed, the [juvenile] court’s obligation to render adequate findings facilitates meaningful appellate review and ensures the parties are informed of the [juvenile] court’s reasoning.” Lay v. Lay, 2018 UT App 137, ¶ 19, 427 P.3d 1221 (cleaned up). “Unless the record clearly and [incontrovertibly] supports the [juvenile] court’s decision, the absence of adequate findings of fact ordinarily requires remand for more detailed findings by the [juvenile] court.” Woodward v. Fazzio, 823 P.2d 474, 478 (Utah Ct. App. 1991) (cleaned up).

¶42      We are unable to determine the court’s basis for leaving all parent-time decisions in the hands of Grandparents, a situation that potentially denies Mother any parent-time with the Children.

Accordingly, we vacate the juvenile court’s decision regarding parent-time and remand this matter for specific findings demonstrating what conditions of parent-time are reasonable. If the court determines that it is reasonable to award no parent-time to Mother, then the court must make specific findings to justify such a determination.

III. Venue

¶43 Mother brought a motion to dismiss or change venue on the morning of trial, asserting that the case had been brought in the wrong venue.[10] The juvenile court took the motion under advisement and delayed ruling on the motion until it could take evidence and determine facts relative to venue. In its dispositional order, the juvenile court determined that venue was correct in the Seventh District. Now on appeal, Mother challenges that conclusion only as to RH. Mother maintains that on the day the petition for guardianship was filed, RH was living with Mother in Salt Lake County. Even assuming, for purposes of the discussion, that venue was incorrectly determined to be in the Seventh District as to RH, we affirm the decision of the juvenile court because Mother has failed to show any harm.

¶44 The guardian ad litem’s briefing maintained that Mother needs to show harm to obtain reversal based on an erroneous denial of the motion to change venue as it pertains to RH. Mother does not quibble with this legal assertion but claims that she implicitly identified and showed harm in her principal brief. As both parties have proceeded under the assumption that an appellant must show harm, we will do likewise without deciding that discrete issue.[11] The sole harm Mother points to is that the case regarding RH would have been dismissed and that dismissal would have benefitted Mother. Mother is wrong on the first point and utterly fails to meet her burden of persuasion on the second.

¶45      First, as to automatic dismissal, this result was rejected several years ago by this court when In re adoption of B.N.A., 2018 UT App 224, 438 P.3d 10, explored the consequences of hearing a case in the wrong venue. Initially, we explained that under current precedent, subject-matter jurisdiction is not implicated when a case is filed in the wrong district. Id. ¶¶ 12–24. Then we concluded that the “consequence for filing in the wrong district is not automatic dismissal.” Id. ¶ 25. Instead, “any party, upon proper motion, may request that the case be transferred to the correct district.” Id. So, if the Mother’s motion had been granted, the case would have been transferred, not dismissed. Accordingly, the argument that harm resulted because the case would have been dismissed fails.

¶46 Second, Mother fails to identify any other harm. She merely concludes that “[d]ismissal would have benefitted Mother.” But as just explained, dismissal would not have occurred. And Mother presents no argument that she would have obtained a different result had the case been transferred. Importantly, where Mother does not challenge that the case involving GH would have remained in the Seventh District, we easily foresee that upon transfer, any other juvenile court would have likely transferred the RH case back to the Seventh District under its discretionary powers, and more particularly under rule 42 of the Utah Rules of Civil Procedure.[12] Further, Mother fails to show how the result rendered in a different venue would have been better for her. Thus, Mother fails to meet her burden of persuasion that she was harmed by the denial of her motion to change venue.

¶47      Accordingly, we see no basis to reverse the judgment of the juvenile court on the issue of venue.

CONCLUSION

¶48      We affirm the juvenile court’s determination that Mother neglected the Children and that venue was proper in the Seventh District with regard to RH. We also conclude that the juvenile court made inadequate findings regarding its parent-time award. Therefore, we vacate the court’s award of sole discretion over Mother’s parent-time to Grandparents and remand the matter for further proceedings consistent with this opinion to consider Mother’s residual parental rights when determining a reasonable award of parent-time.

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


[1] RH has a twin, who has lived with the maternal great-grandmother since April 2021 and is not involved in this case.

 

[2] Mother disputes the findings of fact only with regard to venue. But as our disposition makes clear, these factual disputes are immaterial.

[3] Although the court found that Father had “an extensive and violent criminal history, including convictions for interfering with arrests, assaults, disorderly conduct, and threats of violence,” it did not make a specific finding regarding Mother’s knowledge of his violent criminal history outside of the event in prison.

[4] When asked about how Mother was performing at work, her supervisor testified, “She is incredibly reliable. She’s one of my go-to staff . . . .”

[5] Adjudication “means a finding by the court . . . that the facts alleged in the petition have been proved.” Utah Code § 80-1­102(3)(a).

[6] Utah Code section 80-1-102(58)(a) defines “neglect” as follows:

[An] action or inaction causing: (i) abandonment of a child . . . ; (ii) lack of proper parental care of a child by reason of the fault or habits of the parent, guardian, or custodian; (iii) failure or refusal of a parent, guardian, or custodian to provide proper or necessary subsistence or medical care, or any other care necessary for the child’s health, safety, morals, or well-being; (iv) a child to be at risk of being neglected or abused because another child in the same home is neglected or abused; (v) abandonment of a child through an unregulated child custody transfer under Section 78B-24-203; or (vi) educational neglect.

[7] After a dispositional hearing, the juvenile court may award permanent custody and guardianship to a relative if it finds by clear and convincing evidence either abuse or neglect by the natural parent. See Utah Code §§ 80-3-402(1), -405. Mother made additional arguments that the court erred in determining that GH was abused by Father and that Mother had standing to appeal any determinations regarding Father that contributed to a finding that Mother neglected the Children. Because we affirm the juvenile court’s determination that Mother neglected the Children, we do not need to address these arguments.

[8] Mother alleges that when she has asked Grandparents for parent-time, they have refused and told her, “You have no rights.” Mother’s allegations are not part of our appellate record, however.

[9] It is possible for a juvenile court, in an appropriate case, to determine that a parent retaining residual rights is not entitled to any parent-time. But any such determination should be rare and should be supported with findings that demonstrate why it is not reasonable, for example, for the parent to have at least short periods of unsupervised or supervised parent-time.

[10] Utah law provides that “a proceeding for a minor’s case in the juvenile court shall be commenced in the court of the district in which . . . the minor is living or found.” Utah Code § 78A-6­350(1)(b).

[11] Some courts that have decided this issue have held that harm must be shown. See Lamb v. Javed, 692 S.E.2d 861, 864 (Ga. Ct. App. 2010); Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim. App. 2014). But we do not decide this issue and leave it for another day.

[12] Mother asserts that venue rights are so substantial that a denial of a motion to change venue can be grounds for an interlocutory appeal, citing Davis County v. Purdue Pharma, LP, 2020 UT 17, 463 P.3d 619. While this is true, Mother sought no interlocutory appeal here. And other courts have held that failure to immediately appeal a denial of a motion to change venue constitutes a waiver of the venue claim. See, e.g.Patterson v. Alexander & Hamilton, Inc., 844 So. 2d 412, 415 (La. Ct. App. 2003).

Tags: , , , , , , , , , , , , , , , ,

In re A.S.G.-R. – 2023 UT App 126 – permanent custody and guardianship

In re A.S.G.-R. – 2023 UT App 126

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF A.S.G.-R.,

A PERSON UNDER EIGHTEEN YEARS OF AGE.

G.R.,

Appellant,

v.

STATE OF UTAH AND E.G.,

Appellees.

Opinion No. 20220645-CA

Filed October 19, 2023

Fourth District Juvenile Court, Provo Department

The Honorable D. Scott Davis

No. 1196726

Alexandra Mareschal and Julie J. Nelson,

Attorneys for Appellant

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

Peterson, Attorneys for Appellee State of Utah

Neil D. Skousen, Attorney for Appellee E.G.

Martha Pierce, Guardian ad Litem

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN D. TENNEY

concurred.

HARRIS, Judge:

¶1        G.R. (Mother) became convinced that E.G. (Father) was sexually abusing their daughter, A.S.G.-R. (Child). Over a nearly two-year period, Mother made or sparked some thirty reports of sexual abuse to Utah’s Division of Child and Family Services (DCFS). After investigation, however, DCFS was unable to discover any credible evidence supporting Mother’s allegations, and therefore did not substantiate any of them. And given the number and repeated nature of the reports, DCFS became concerned that Child was being harmed by the allegations and ensuing investigations, some of which had included invasive physical examinations of Child.

¶2        Eventually, the State filed a petition for protective supervision and obtained an order removing Child from Mother’s custody and placing her with Father. After affording Mother fifteen months of reunification services, including a psychological evaluation and therapy, the juvenile court determined that the services had not resulted in sufficient change to the situation and that Child would be placed at substantial risk if she were returned to Mother, and therefore terminated reunification services. And after a four-day permanency hearing, the court entered a permanent custody and guardianship order in favor of Father.

¶3        Mother now appeals, arguing that the court erred in its decisions to not extend reunification services and to award permanent custody and guardianship to Father. We discern no reversible error in those decisions, and therefore affirm.

BACKGROUND[1]

¶4        Child was born in January 2017. Mother and Father separated shortly before Child’s birth, and about two years later they finalized their divorce. In the decree of divorce, Mother and Father were awarded joint legal custody of Child, but Mother was awarded primary physical custody with Father having statutory parent-time.

¶5        Child welfare officials first became involved with this family in November 2018, when DCFS made a supported finding of domestic violence with Father as the perpetrator and Child as the victim. At some point during this same time frame, Mother obtained a protective order against Father, based on allegations that he committed domestic violence against her also.

¶6        Beginning in May 2019, Mother began to make accusations that Father was sexually abusing Child. Over the course of the next two years, Mother made at least eight direct reports to DCFS of alleged sexual abuse. In addition, Mother reported her allegations to various medical and mental health professionals, some of whom also made reports to DCFS based on Mother’s representations. In total, between May 2019 and February 2021, some thirty separate reports were made to DCFS that Father was sexually abusing Child. DCFS investigated these reports and could not substantiate any of them. In connection with some of these reports, Mother took Child to the hospital. During two of these visits, Child—approximately three years old at the time— was subjected to invasive physical examinations, including one “code-R” rape examination.[2] The examinations yielded no evidence of abuse, and in January 2020 DCFS representatives spoke with Mother about the potential harm that could result to Child from repeated unfounded allegations and needless forensic medical examinations. In addition, in April 2020 the “medical director of Utah’s [Center for] Safe and Healthy Families” program advised Mother that subjecting Child to “any further sexual assault examinations could result in an allegation of abuse for [Mother] due to the harm that unnecessary examinations can cause a child.”

¶7        During this time frame, and in an effort to expand Mother’s understanding of the relevant issues, DCFS opened a “voluntary services case” to provide Mother the opportunity to take advantage of certain services, and Mother agreed to work with DCFS to try to improve the situation.

¶8        During the pendency of the voluntary services case, however, Mother hired a private investigator to investigate the possibility of sexual abuse by Father, and she did not tell DCFS that she had done so. This investigator interviewed Child, using techniques the juvenile court later found to “violate[] nearly every guideline for child forensic interviewing,” including “ask[ing] leading questions, [making] promises to [Child] that could not be kept, and offer[ing Child] ice cream if she would tell the interviewer what ‘daddy’s secret’ is.”

¶9        Despite DCFS’s efforts to assist Mother, the voluntary services case did not have its desired effect. Mother proved unable or unwilling to follow the plan DCFS outlined, and she stopped communicating with the DCFS caseworker.[3] Eventually, DCFS closed the voluntary services case.

¶10 Sometime after that case was closed, Mother—in a continuing effort to present evidence that Father was sexually abusing Child—took a video recording of Child in an incident the juvenile court described as follows: Mother “videotaped [Child], naked on a bed, having her point to where [Father] touches her. On the video, [Mother] touches [Child’s] genitals and has her spread her legs and moves the camera angle close-up to [Child’s] genitals.” Mother provided a copy of this recording to DCFS, but caseworkers declined to view it “based on concerns that it may potentially contain child pornography.” Mother then provided the video recording to law enforcement.

¶11      In January 2021, Mother again brought Child to a hospital, alleging that Child “disclosed that [Father] had put his mouth on [Child’s] vagina just hours prior.” Another invasive physical examination was performed on Child, yet “no male DNA was found on [Child’s] genitals.” DCFS was informed about this incident, presumably from hospital personnel, and investigated it; the investigation included interviewing Child at the Children’s Justice Center. After completing its investigation, DCFS found “no corroborating evidence” and concluded that Child’s “disclosure was coached” and “not credible.”

¶12      The present case was initiated in March 2021 when Mother sought a protective order barring Father from having contact with Child, and the State responded by not only intervening in the protective order case but also by filing this action: a petition for protective supervision services in which the State asked the court to “discontinue” the protective order, conclude that Child was “abused, dependent, and/or neglected,” award DCFS protective supervision of Child, and allow DCFS to place Child in Father’s custody during the pendency of the case.

¶13      At a shelter hearing held about a week later, the juvenile court ordered Child removed from Mother’s custody and placed in the temporary custody of DCFS, which then placed Child, on a preliminary basis, with Father. Child has remained in Father’s care ever since.

¶14      Later, at a subsequent hearing, the court found, based on stipulation, that Child was dependent as to Father. With regard to Father, the court indicated that the primary permanency goal was “Reunification/REMAIN HOME,” and that the concurrent goal was “Remain Home with non-custodial parent.”

¶15      The court held an adjudication hearing as to Mother; at that hearing, Father and the guardian ad litem (the GAL) asserted that Mother’s conduct—making repeated false claims of sexual abuse, thereby subjecting Child to interviews, investigations, and physical examinations—constituted abuse, but the State argued only for a finding of neglect. After the hearing, the court found “no specific evidence” of harm to Child that could support a finding of abuse, but instead determined that Child “is neglected” as to Mother because Child “lacks proper care by reason of the fault or habits of [Mother].” For Mother, the court set a primary permanency goal of “RETURN HOME” and a concurrent permanency goal of “Permanent Custody and Guardianship with a Relative.” The court explained that it was setting “different permanency goals for each parent,” and that for Father, “the primary goal will be” for Child to “remain[] home with him,” with “the concurrent goal of reunification if she is removed from his care.” For Mother, the primary goal was “reunification, with the concurrent goal of guardianship with [a] relative.”

¶16 In connection with setting these permanency goals, the court adopted a Child and Family Plan (the Plan). Under the terms of the Plan, Mother was required to, among other things, “complete a psychological evaluation and follow through with all recommendations”; “participate in individual therapy”; participate in a “parenting class”; and “maintain stable and appropriate housing” for herself and Child. The Plan also required Mother to be “open and honest” in connection with the psychological evaluation, as well as with therapists and other mental health professionals. The Plan provided that its objectives would “be achieved when [Child] is living at [Mother’s] home” and when Mother “is providing a healthy, stable, and age-appropriate environment . . . that supports a strong co-parenting relationship with” Father. No party lodged any objection to the terms of the Plan or to the permanency goals the court set.[4]

¶17 Thereafter, Mother completed a parenting class as well as—after some delay that may or may not have been attributable to her—the required psychological evaluation. The psychologist who conducted the evaluation (Evaluator) diagnosed Mother with “unspecified personality disorder” characterized by “symptoms indicative of borderline, histrionic, and narcissistic personality disorders as well as paranoid-like features.” In particular, Evaluator noted that Mother has “a belief that she can only be understood by a few people,” a “sense of entitlement,” a “lack of empathy,” and a “pervasive distrust and suspiciousness of others” that leads her to sometimes “suspect[], without sufficient basis, that others are harming and deceiving her.” Evaluator offered his view that, “unless [Mother] overcomes her psychopathological features,” she “cannot act in [Child’s] best interest.” He noted that the “obvious recommendation” for Mother would be for her to “pursue an effective treatment program,” but he was doubtful that such a program would succeed in Mother’s case, because Mother “is convinced that she is not the problem” and because, “given her personality disorder features, . . . it would be hard for [Mother] to develop an effective psychotherapeutic alliance with her psychotherapist.”

¶18 Thereafter, DCFS sent Mother a list of recommended therapists, and Mother attended therapy sessions with at least three different mental health professionals. DCFS expressed concern that Mother “was seeking out multiple providers,” some of whom reported that Mother was attempting to “get a second opinion on the psychological evaluation,” and DCFS was worried that Mother was “continu[ing] to report” to these therapists “that [Child] was being sexually abused.” Because of this, DCFS harbored a “concern that there is no clear progress in therapy, due to minimal communication from providers, multiple providers involved and regular changes in therapy.” Mother maintains, however, that she “engaged in all recommended therapy,” an assertion no party apparently contests, although the record is far from clear about what the specific recommendations were and exactly how Mother complied with them.

¶19 After the psychological evaluation was completed, the parties appeared for a review hearing before the court. At that hearing, the results of the evaluation were discussed, and the court commented that, “if the case were closed today and things returned to how they were before the case, [Child] would be at risk of harm by” Mother. The court ordered that Child remain in DCFS custody and placed with Father, with whom the court stated it had “no safety concerns.”

¶20 As the twelve-month permanency hearing approached, Mother moved for an extension of reunification services for “at least 90 days.” Mother argued that she had complied with the Plan, in that she had completed the parenting class and the psychological evaluation and had engaged in therapy. In this motion, Mother also argued that the juvenile court could not enter an order of permanent custody and guardianship with Father, because the district court had already entered a custody order, in connection with the parties’ divorce case, and in Mother’s view the district court should be the court to enter and modify custody orders between the parents. Father opposed Mother’s motion for extended services, but the State did not register opposition. The court scheduled an evidentiary hearing to consider the matter. But due to problems with witness subpoenas, the evidentiary hearing needed to be postponed, which resulted in Mother’s motion for an extension of services being de facto granted: services were then extended for another ninety days, and the postponed evidentiary hearing was turned into a permanency hearing.

¶21      After these delays, the permanency hearing was held, over four nonconsecutive trial days, in April and June 2022. Child’s DCFS caseworker testified that she believed that Mother had been “coaching [Child] into telling people certain things.” And Child’s psychologist testified that she “did not observe significant behaviors or concerns, [or] emotions concerning expressions that would signal to [her] that [Child] has experienced sexual abuse.”

¶22      Evaluator testified at length during the trial, and discussed the specifics of his evaluation of Mother. He discussed his diagnosis that Mother had an “unspecified personality disorder.” He testified that the evaluation took longer than anticipated because Mother “did not involve herself in the evaluation in a forthright manner,” “withheld relevant information that was requested of her,” and “intentionally distorted information.” In his view, Mother did not think that she was the problem or that she had done anything wrong. Evaluator reiterated his view that unless Mother “overcomes her psychopathological features, [she] cannot act in [Child’s] best interest.”

¶23 During her own testimony, Mother continued to cling to her viewpoint that Father had been sexually abusing Child. She testified that “she does not agree with a doctor’s opinion that there was no evidence of sexual abuse.” When asked whether she “still believe[d]” that Father had sexually abused Child, she answered that she did not know, but that some “part of [her]” still believed that abuse took place, and that she still had “a suspicion” in that regard. She did not recognize any impropriety in her multiple reports of sexual abuse to DCFS and other authorities, testifying that she did not “think [she] was doing anything incorrectly” regarding the parenting of Child. And she did not agree that her behavior constituted neglect of Child.

¶24      In this same vein, Mother also called her ongoing therapist to testify at the trial. The therapist testified that he had spent some thirty hours of therapy with Mother and that she had been cooperative. The therapist opined, to the extent he was able to as a fact witness, that Evaluator’s diagnosis of an “unspecified personality disorder” was incorrect, that Mother had not neglected Child by reporting sexual abuse to the authorities, and that Father had indeed sexually abused Child.

¶25      At the conclusion of the trial, the juvenile court took the matter under advisement. A few weeks later, the court issued a written decision containing several different rulings. First, the court declined Mother’s invitation to further extend reunification services, and it terminated those services. Important to the court’s decision in this regard were its findings that—although Mother had taken certain steps, including completing parenting classes, engaging in therapy, and completing the psychological evaluation—Mother had not fully complied with the terms of the Plan, because even after all of these services, Mother “accepted virtually no responsibility for [Child] being in DCFS custody for more than one year,” “demonstrated virtually no insight regarding the harm she has caused” to Child, and offered “varied and conflicted” testimony “regarding whether she still believed” that Father had sexually abused Child, “despite there being no credible evidence that he has.” The court also determined that reunification between Mother and Child was not “probable or likely within the next 90 days” and that the extension of services was not in Child’s best interest.

¶26 Second, the court awarded “permanent custody and guardianship” of Child to Father. Important to the court’s decision in this regard were its findings that “return of [Child] to [Mother’s] care would create a substantial risk of detriment to [Child’s] physical or emotional well-being,” that there is “no credible evidence” that Father has ever sexually abused Child, and that Child “seems to be thriving and well-adjusted [and] well cared for” in Father’s care.

¶27 Finally, after denying Mother’s request for additional reunification services and granting permanent custody and guardianship in favor of Father, the court terminated its jurisdiction in the case.

ISSUES AND STANDARDS OF REVIEW

¶28 Mother now appeals, and she raises two issues for our consideration. First, she challenges the juvenile court’s decision to terminate reunification services. The juvenile court is “in the best position to evaluate the credibility of witnesses, the parent’s level of participation in reunification services, and whether services were appropriately tailored to remedy the problems that led to the child’s removal.” In re D.R., 2022 UT App 124, ¶ 9, 521 P.3d 545 (quotation simplified), cert. denied, 525 P.3d 1264 (Utah 2023). Accordingly, “absent a demonstration that the determination was clearly in error, we will not disturb the determination” to terminate reunification services. See id. (quotation simplified).

¶29      Second, Mother challenges the juvenile court’s decision to award permanent custody and guardianship to Father, her fellow parent. As part of this challenge, she takes issue with the court setting slightly different permanency goals for each parent, and with the court accomplishing two separate objectives—namely, choosing among those goals and awarding permanent custody to Father—all in connection with the same hearing. In the main, Mother’s challenges in this regard involve questions of statutory interpretation, which “are questions of law that we review for correctness.” In re S.Y.T., 2011 UT App 407, ¶ 9, 267 P.3d 930 (quotation simplified). But to the extent that Mother here challenges the court’s underlying factual findings, we adopt a more deferential standard of review. See In re L.M., 2013 UT App 191, ¶ 6, 308 P.3d 553 (“We review the juvenile court’s factual findings for clear error . . . .” (quotation simplified)), cert. denied, 320 P.3d 676 (Utah 2014).[5]

ANALYSIS

I

¶30      Mother first challenges the juvenile court’s decision to terminate reunification services. For the reasons discussed, we discern no clear error in the court’s decision.

¶31 When a juvenile court removes a child from a parent’s custody, it may afford the parent the opportunity to take advantage of certain services—e.g., mental health counseling or parenting classes—designed to address the problems that led to removal and aimed at facilitating reunification between parent and child. See Utah Code § 80-3-406. However, due to the need for swift permanence in child welfare cases, the duration of reunification services may not ordinarily “exceed 12 months” from the date of removal. See id. § 80-3-406(13)(a); see also id. § 80­3-409(6). A juvenile court may, however, extend reunification services by an additional “90 days”—for a total of fifteen months—if the court finds, by a preponderance of the evidence, “that (i) there has been substantial compliance with the child and family plan; (ii) reunification is probable within that 90-day period; and (iii) the extension is in the best interest of the minor.” Id. § 80-3­409(7)(a). And in exceptional cases, the court may extend services for a second ninety-day period—for a total of eighteen months— but only if the court can make those same three findings by clear and convincing evidenceId. § 80-3-409(7)(c).

¶32      In this case, Child was removed from Mother’s custody at a shelter hearing in March 2021. Thus, reunification services were to presumptively end in March 2022, unless the court made findings sufficient to support an extension. In early April 2022, the court commenced an evidentiary hearing for the purpose of determining whether reunification services should be terminated or extended but, due to problems with witness subpoenas, the evidentiary hearing needed to be postponed, which resulted in a de facto extension of reunification services for another three months, into June 2022. Finally, at the conclusion of the four-day hearing that same month, the court ordered that reunification services be terminated. In its order, the court—presumably out of an abundance of caution given the timing of the hearing—stated that it was “not able to find by a preponderance of the evidence, and certainly not by clear and convincing evidence, that [Mother] is in substantial compliance with [the Plan], that reunification . . . is probable or likely within the next 90 days, or that extension of services for [Mother] is in [Child’s] best interest.”

¶33 Mother challenges this decision, asserting that it goes against the clear weight of the evidence because, she asserts, she at least substantially complied with the Plan. We acknowledge that Mother did take certain actions that the Plan required, such as completing the psychological evaluation and participating in parenting classes and individual therapy, and we therefore agree with Mother’s assertion that she complied with many—if not necessarily all[6]—of the Plan’s individual requirements.

¶34      But even taking Mother’s assertion—that she completed all of the Plan’s individual subsidiary tasks—at face value, that does not necessarily compel the conclusion that Mother substantially complied with the Plan, because in this case Mother’s efforts did not bear fruit. That is, at the end of fifteen months of reunification services, Mother had not rectified the problem that led to the removal of Child from her custody. The Plan explicitly stated that its goals would be “achieved when [Child] is living at [Mother’s] home [and] where Mother is providing a healthy, stable, and age-appropriate environment . . . that supports a strong co-parenting relationship with [Father].” Child was removed from Mother’s custody because Child lacked “proper care by reason of the fault or habits of [Mother]” due to Mother’s continued unsupported reports to authorities that Father was sexually abusing Child. After fifteen months of services, the court—based at least in part on Mother’s own testimony at the evidentiary hearing— determined that the original problem still existed, and that Child could not therefore safely be returned to Mother’s custody. It is far from clear error for a juvenile court to determine that a parent who has completed many of a child and family plan’s individual requirements, but who has still not meaningfully addressed the underlying problem the plan was designed to solve, has not substantially complied with the plan.

¶35      Moreover, even if we were to assume, for the purposes of the discussion, that Mother’s actions constituted substantial compliance with the Plan, Mother must also grapple with the juvenile court’s findings that reunification was not probable within the next ninety days, and that another extension of reunification services was not in Child’s best interest. See Utah Code § 80-3-409(7)(a)(ii), (iii); see also In re H.C., 2022 UT App 146, ¶ 54, 523 P.3d 736 (“Although [the mother] subsequently complied with the child and family plan, the court nonetheless determined that [the child] could not safely be returned to her care because it found that the return posed a substantial risk of detriment to [the child’s] physical or emotional well-being.”), cert. denied, 527 P.3d 1106 (Utah 2023). While Mother spends many pages in her brief contesting the court’s “substantial compliance” finding, she does not directly engage with the court’s findings that, given her lack of progress on solving the underlying problem, she had not shown—by either evidentiary standard— that reunification was probable in the next ninety days or that reunification was in Child’s best interest. And based on our review of the record, we discern no clear error in these findings.

¶36      Accordingly, we discern no error, let alone reversible error, in the juvenile court’s decision to terminate reunification services.

II

¶37 Next, Mother challenges the juvenile court’s decision to award permanent custody and guardianship to Father. Her challenge in this regard is multi-faceted. First, she challenges the substance of the court’s decision, and asserts that the court—by considering its options limited to those set forth in section 80-3­409(4)(b) of the Utah Code—erred in its interpretation of the governing statute. And in connection with this argument, Mother asks us to overrule one of our recent opinions. Second, Mother challenges the procedure the court used in reaching its decision. For the reasons discussed, we reject Mother’s arguments.

A

¶38      Under our law, in any case in which reunification services are ordered, “the juvenile court shall, at the permanency hearing, determine . . . whether the minor may safely be returned to the custody of the minor’s parent.” See Utah Code § 80-3-409(2)(a). And “[i]f the juvenile court finds, by a preponderance of the evidence, that return of the minor to the minor’s parent would create a substantial risk of detriment to the minor’s physical or emotional well-being, the minor may not be returned to the custody of the minor’s parent.” Id. § 80-3-409(2)(b).

¶39      In this case, as already discussed, the juvenile court ordered reunification services for Mother, and therefore needed to confront, at the permanency hearing, the question of whether Child faced “substantial risk of detriment to her physical and emotional well-being if returned to [Mother’s] care.” In its findings and conclusions entered following that hearing, the court specifically found, by “both a preponderance of the evidence” and by “clear and convincing evidence, that return of [Child] to [Mother’s] care would create a substantial risk of detriment to [Child’s] physical or emotional well-being.” Mother does not directly challenge that finding on appeal.[7]

¶40      In situations where a juvenile court makes a finding of risk and therefore determines that a child cannot be returned to the parent’s custody, our law then requires the court to do certain things: “(a) order termination of reunification services to the parent; (b) make a final determination regarding whether termination of parental rights, adoption, or permanent custody and guardianship is the most appropriate final plan for the minor . . . ; and (c) . . . establish a concurrent permanency plan that identifies the second most appropriate final plan for the minor, if appropriate.” Id. § 80-3-409(4). As discussed above, the court terminated reunification services, and did not err by so doing.

¶41      The court then considered the three options presented by the second part of the governing statute: termination of parental rights, adoption, or permanent custody and guardianship.[8] See id. § 80-3-409(4)(b). The court determined that permanent custody and guardianship with Father was the most appropriate of those three options.

¶42      Mother challenges the substance of this determination, and she makes two specific arguments. First, she asserts that the statutory subsection the court believed governed the situation— section 80-3-409(4) of the Utah Code—doesn’t actually govern, because in Mother’s view Child was “returned to” a parent (Father) after the permanency hearing. Second, and relatedly, Mother acknowledges that one of our recent decisions—In re H.C., 2022 UT App 146, 523 P.3d 736, cert. denied, 527 P.3d 1106 (Utah 2023)—interpreted the governing statute in a manner unfavorable to her, and she asks us to overrule that recent case. We find neither of Mother’s arguments persuasive.

1

¶43 Mother’s first argument challenges the juvenile court’s interpretation of statutory text. In particular, she notes that a threshold requirement of the governing statute is that the minor not be “returned to the minor’s parent or guardian at the permanency hearing.” See Utah Code § 80-3-409(4). Only if a child is not “returned to the minor’s parent” at the permanency hearing does a court need to choose from one of the three options set forth in subsection (4)(b): termination, adoption, or permanent custody and guardianship. See id. If a child is “returned to the minor’s parent,” then a court presumably could select some other option not listed in subsection (4)(b). As Mother sees it, the statutory reference to “the minor’s parent” includes not only the parent from whom the child was removed and with regard to whom the “substantial risk” determination is being made, but also the child’s other parent. And she asserts that, because Child was placed in the custody of Father—Child’s other parent—after the permanency hearing, the court erred by considering itself limited to the three options set out in subsection (4)(b).

¶44      Our “overarching goal” in interpreting a statute is “to implement the intent of the legislature.” See State v. Rushton, 2017 UT 21, ¶ 11, 395 P.3d 92. In attempting to ascertain that intent, we start with “the language and structure of the statute.” Id. “Often, statutory text may not be plain when read in isolation, but may become so in light of its linguistic, structural, and statutory context.” Id. (quotation simplified). “The reverse is equally true: words or phrases may appear unambiguous when read in isolation, but become ambiguous when read in context.” Id. For this reason, “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, avoiding any interpretation which renders parts or words in a statute inoperative or superfluous in order to give effect to every word in the statute.” Id. (quotation simplified).

¶45 In our view, the phrase “the minor’s parent,” as used in section 80-3-409(4), refers only to the parent from whom the child was removed, who was offered reunification services, and to whom return of the child “would create a substantial risk of detriment” to the child. It does not refer to another parent with whom the child is currently placed, who has not been ordered to complete any reunification services, and with regard to whom the court has not made any “substantial risk” determination. Indeed, the thrust of this entire statutory section has to do with whether a child will be reunited with a parent from whom the child has been removed and who has received reunification services. See Utah Code § 80-3-409. As already noted, subsection (2) requires a court to make a threshold determination about whether the “minor may safely be returned to the custody of the minor’s parent,” something that may not occur if “return of the minor to the minor’s parent would create a substantial risk of detriment” to the minor. Id. § 80-3-409(2)(a), (b). The verb “returned” is meaningful here: one does not “return” to a situation in which one has never been in the first place. See Return,    Merriam-Webster, https://www.merriam-webster.com/dictionary/return            [https://perma.cc/Y4YF-3ENP]
(defining “return” as “to go back or come back again”). In the subsection (2) context, the phrase “the minor’s parent” clearly refers to the parent from whom the minor was removed, who received reunification services, and with regard to whom the “substantial risk” determination is being made; indeed, the statute instructs juvenile courts that are making the subsection (2) threshold determination to consider, among other things, whether the parent in question has demonstrated “progress” and whether the parent has “cooperated and used the services provided.” See Utah Code § 80-3-409(3)(a)(iv), (v). In our view, it would be nonsensical to apply this phrase to the minor’s other parent in a situation where the child was already in the custody of that parent at the time of the permanency hearing, where that parent did not receive reunification services, and where the court made no “substantial risk” determination concerning that parent at that hearing. Indeed, at oral argument before this court, Mother conceded that the phrase “the minor’s parent,” as used in subsection (2), must refer solely to the parent who received reunification services and with regard to whom the “substantial risk” determination is being made.

¶46 That same phrase—“the minor’s parent”—used two subsections later means the same thing. As noted, we read statutes as a whole, including all of their subsections, and “interpret [their] provisions in harmony with other statutes in the same chapter and related chapters.” See Rushton, 2017 UT 21, ¶ 11 (quotation simplified). Under “the canon of consistent meaning,” there is a “presumption that the established meaning of a word in a given body of law carries over to other uses of the same term used elsewhere within that same law.” In re Childers-Gray, 2021 UT 13, ¶ 142, 487 P.3d 96 (Lee, J., dissenting). And the “canon of consistent meaning is at its strongest when it is applied to a term used in neighboring subparts of the same statutory provision.” Irving Place Assocs. v. 628 Park Ave, LLC, 2015 UT 91, ¶ 21, 362 P.3d 1241; see also Barneck v. Utah Dep’t of Transp., 2015 UT 50, ¶ 31, 353 P.3d 140 (determining that a term “cannot properly mean one thing as applied to two of the objects in a series . . . but something else as applied to the other object in the same series”). Thus, when assessing the meaning of the phrase “the minor’s parent” in subsection (4), it is highly relevant how that phrase is used in subsection (2). And we conclude that, interpreted in its proper context, the phrase—as used in subsection (4) as well as subsection (2)—refers only to the parent from whom the child was removed, who received reunification services, and with regard to whom the court is making the “substantial risk” determination, and not to another parent who does not fit those criteria.

¶47      Accordingly, we reject Mother’s argument that subsection 409(4) has no application to her situation. By the plain terms of that statutory section, the juvenile court—as soon as it determined that Child could not safely be returned to Mother—was obligated to apply that statutory subsection according to its text.

2

¶48      Under the text of that statutory subsection, a court that has made a “substantial risk” determination must terminate reunification services. See Utah Code § 80-3-409(4)(a). At that point, the statute requires the court to “make a final determination regarding whether termination of parental rights, adoption, or permanent custody and guardianship is the most appropriate final plan for the minor.” Id. § 80-3-409(4)(b). The language of this statutory subsection therefore speaks of only three options, and requires the court in this situation to choose one of them. And we have recently interpreted this language according to its text, even as applied to disputes between parents. See In re H.C., 2022 UT App 146, 523 P.3d 736, cert. denied, 527 P.3d 1106 (Utah 2023).

¶49      Yet here, Mother nevertheless asserts that, at least in cases involving disputes between two parents, juvenile courts ought to be allowed to choose a different option: entry of a simple custody order that is controlled by the usual standards governing entry and modification of custody orders in divorce court. Mother asserts that awarding a parent the status of “guardian” makes no sense, given that a parent already has all the rights that a guardian has. And she asserts that entering orders of permanent guardianship as between parents has the effect—one she posits was unintended—of preventing one parent from being able to seek modification of the custody order.

¶50      To her credit, Mother recognizes that our recent holding in In re H.C. forecloses her argument for a fourth option. In that case, the parents of a child were divorced, with a parenting plan that gave primary custody to the mother. Id. ¶ 2. But later, the juvenile court determined that the child had been neglected by the mother, and the child was placed in the care of the father. Id. ¶¶ 4, 8. After the permanency hearing, the juvenile court determined that the child would be at substantial risk if returned to the mother’s custody, and the court placed the child with the father under an order of permanent custody and guardianship. Id. ¶¶ 28, 38. On appeal, we affirmed the juvenile court’s decision, and we interpreted subsection 409(4)(b) as limiting the juvenile court to the three options set forth therein. Id. ¶ 58. We held that subsection 409(4)(b) “leaves a juvenile court judge with no discretion” to do anything else, and we specifically stated that the statute “does not vest the juvenile court with the authority to defer to the district court” with regard to custody of the adjudicated child. Id. (quotation simplified).

¶51      In an effort to get around this roadblock, Mother asks us to overrule In re H.C. We do possess the authority to overrule our own precedent in appropriate cases. See State v. Legg, 2018 UT 12, ¶ 11, 417 P.3d 592 (stating that one panel of this court “retains the right to overrule another panel’s decision if the appropriate standard is met”). “But we do not do so lightly,” given our respect for the principle of stare decisis, which ordinarily requires us to defer to “the first decision by a court on a particular question.” See State v. Garcia-Lorenzo, 2022 UT App 101, ¶¶ 42, 44, 517 P.3d 424 (quotation simplified), cert. granted, 525 P.3d 1263 (Utah 2022).

¶52      “Before we may overrule one of our precedents, we must engage in the two-part exercise required by our supreme court in such situations.” Id. ¶ 45. “First, we must assess the correctness of the precedent, and specifically examine the persuasiveness of the authority and reasoning on which the precedent was originally based.” Id. (quotation simplified). “Second, we must assess the practical effect of the precedent, including considerations such as the age of the precedent, how well it has worked in practice, its consistency with other legal principles, and the extent to which people’s reliance on the precedent would create injustice or hardship if it were overturned.” Id. (quotation simplified). Both parts of the test must be satisfied before we may overrule a precedent. See id. In this case, we need not discuss the second part because, in our view, the first one is not satisfied.

¶53 With regard to the first part—the correctness of the precedent—Mother asserts that our decision in In re H.C. “upends the district court’s jurisdiction over custody matters and imposes an unnecessarily restrictive scheme on custody between two parents.” She points out that, when a child is placed with the other parent after a permanency hearing, “the child isn’t in ‘legal limbo’” and “all that is left to determine is what [the] custody [arrangement] between the parents will look like.” And she maintains that, if subsection 409(4)(b) is interpreted to require courts to order permanent custody and guardianship in favor of one of the parents, that result would serve to “override[] district court custody orders” and would create a “super sole custody” arrangement in which “the non-guardian parent can never modify the terms of the guardianship.” She asserts that this is an “absurd result” that “cannot be what the legislature intended.”

¶54 But in our view, the panel’s reasoning in In re H.C. was sound. There, the court analyzed the text of subsection 409(4)(b) and concluded that the language used by the legislature limited juvenile courts in this situation to the three options set forth in the text of the statute. See In re H.C., 2022 UT App 146, ¶¶ 58–59. Our analysis of that same text leads us to the same conclusion.

¶55      Moreover, Mother overlooks the fact that the panel in In re H.C. considered many of the same arguments that Mother is advancing here. In that case, the appellant asserted that “juvenile courts should not be deciding custody between two fit parents.” Id. ¶ 52 (quotation simplified). And the appellant complained that an order of permanent custody and guardianship in favor of the other parent may prevent her “from petitioning for custodial change in the future.” Id. ¶ 53. We rejected these arguments, in part, by noting that, given the court’s adjudication rulings, “this was not merely a custody proceeding ‘between two fit parents.’” Id. ¶ 54. And we acknowledged the remainder of these arguments in a footnote, editorializing that “it seems odd that, in a situation such as this with two parents vying for custody of a minor child, the statute authorizes the award of permanent guardianship to one parent over the other, where both enjoy parental rights in the minor child.” Id. ¶ 59 n.13. But we found these arguments nevertheless unpersuasive in light of the text of the “statutory regimen that we [were] called upon to interpret and apply.” Id.

¶56      We share the sentiment of the panel in In re H.C. that the text of the governing statute compels the interpretation described there. The text selected and enacted by our legislature limits juvenile courts to just three options in this situation. See id. ¶¶ 58– 59 & n.13 (stating that “permanent custody and guardianship is one of only three options available by the terms of the controlling statute when parental neglect has triggered the juvenile court’s jurisdiction and the case progresses to a permanency hearing at which parental neglect is found and reunification services are terminated”). If our legislature intended a different result, it can always amend the statute to provide for additional options—for instance, entry of a simple custody order awarding primary physical custody to the other parent, and allowing the district court to manage things from there—that a juvenile court might be able to apply in cases involving disputes between two parents. But for now, the text of the governing statute speaks of only three options, applicable in all cases, and we must apply the statute as written, Mother’s policy arguments notwithstanding.[9]

¶57 For all of these reasons, we decline Mother’s invitation to overrule In re H.C. That case—and the statutory text interpreted therein—compels the conclusion that the juvenile court, in this case, had only three options after concluding that it could not return Child to Mother’s custody: it had to either (a) terminate Mother’s parental rights, (b) work toward adoption, or (c) enter an order of permanent custody and guardianship with someone other than the parent at issue. See Utah Code § 80-3-409(4)(b); see also In re H.C., 2022 UT App 146, ¶¶ 58–59. The juvenile court, by selecting permanent custody and guardianship in favor of Father, chose one of the available options.[10] In so doing, the court properly followed the governing statute, and did not misinterpret it. We therefore reject Mother’s second substantive argument.

B

¶58      Finally, Mother makes two challenges to the procedure the juvenile court employed in arriving at its conclusion to award permanent custody and guardianship to Father. We reject both challenges.

¶59 First, Mother claims that the court acted inappropriately when it took the following two actions in the same ruling and after the same hearing: (a) it changed Child’s final permanency goal to permanent custody and guardianship and (b) it entered an order effectuating the permanent custody and guardianship. As Mother sees it, the court was required “to first change the permanency goals . . . and then hold a review hearing (possibly another evidentiary hearing) to determine whether the final permanency goal is established.” Mother notes that “nothing in section 409 permits a juvenile court to” accomplish both things in the same ruling and after the same hearing. But Mother cites no statute or appellate opinion forbidding the court from doing so and, in this situation, we see no reason why the court could not have proceeded as it did.

¶60 Had the court chosen “adoption” as the primary permanency goal following the permanency hearing, then perhaps Mother would have a point: as a practical matter, setting adoption as the goal entails a fair bit of extra work. To facilitate an adoption, the parent’s rights would need to be terminated, and to make that happen, the State (or another petitioner) would need to file a petition for termination of parental rights, which would need to be litigated. And the juvenile court would also need to concern itself, in the event the parent’s rights were terminated, with finding an appropriate adoptive placement for the child.

¶61 But where the court selects permanent custody and guardianship as the primary permanency goal, and the child is already placed with the person to whom custody and guardianship is to be given, there are not necessarily any additional steps that the court needs to take before making that goal a reality. Certainly, in this case Mother doesn’t identify any additional work that needed to be done in the interim. And as noted, Mother points to no statute or governing case forbidding the juvenile court, in cases like this one, from proceeding efficiently and entering the order of guardianship in the same order as it selects the primary permanency goal. Mother has therefore not carried her burden of demonstrating error.

¶62 Second, Mother takes issue with the juvenile court’s decision, earlier in the case, to set different permanency goals for each parent. As noted above, after adjudicating Child dependent as to Father, the court initially set the primary permanency goal, as to Father, as “Reunification/REMAIN HOME,” and the concurrent permanency goal as “Remain Home with non­custodial parent.” Later, after adjudicating Child neglected as to Mother, the court set a primary permanency goal, as to Mother, of “RETURN HOME” and a concurrent permanency goal of “Permanent Custody and Guardianship with a Relative.” The court explained that it was setting “different permanency goals for each parent,” and that for Father, “the primary goal will be” for Child to “remain[] home with him,” with “the concurrent goal of reunification if she is removed from his care.” For Mother, the primary permanency goal was “reunification, with the concurrent goal of guardianship with [a] relative.” Mother challenges this procedure as improper, asserting that this choice made “it additionally difficult for any parent to determine what the effect of abandoning one of the primary plans would be.” But Mother cites no statute or governing case forbidding the court from engaging in this procedure, and she overlooks the fact that she did not object to these goals when they were set. In addition, Mother does not articulate how the court’s decision to set slightly different permanency goals vis-à-vis each parent resulted in any harm to her at the end of the case. Accordingly, Mother has not carried her burden of demonstrating reversible error.[11]

CONCLUSION

¶63 We discern no clear error in the juvenile court’s decision to terminate reunification services. And we reject Mother’s challenges—both substantive and procedural—to the court’s award of permanent custody and guardianship to Father.

¶64 Affirmed.

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

Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

In re H.M. – 2023 UT App 122 – termination of parental rights

In re H.M. – 2023 UT App 122

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF H.M. AND D.M.,

PERSONS UNDER EIGHTEEN YEARS OF AGE.

G.B.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20220774-CA

Filed October 13, 2023

First District Juvenile Court, Logan Department

The Honorable Kirk M. Morgan

No. 1187751

Julie J. Nelson and Alexandra Mareschal,

Attorneys for Appellant

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

Peterson, Attorneys for Appellee State of Utah

Jonathan P. Thomas, Attorney for Father

Martha Pierce, Guardian ad Litem

JUDGE RYAN D. TENNEY authored this Opinion, in which JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.

TENNEY, Judge:

¶1 Mother and Father separated in 2015 and were divorced in 2018. They had two children during their marriage—D.M. and H.M. (collectively, the Children). From 2015 until 2020, Mother repeatedly told state authorities that Father had physically and sexually abused the Children. In several instances, Mother prompted the Children to make allegations against Father too.

Although authorities investigated the reports, none of the investigations resulted in a finding that Father had abused the Children. Also, on two occasions in 2020, Mother absconded with the Children during times in which she did not have custody. Both times, law enforcement was involved in locating and returning the Children to Father’s custody.

¶2        After Mother encouraged one of the Children to file a new report of abuse against Father in January 2022, the Division of Child and Family Services (DCFS) filed a petition to terminate Mother’s parental rights. At the close of a several-day trial, the juvenile court issued an order finding that Mother “cannot stop her destructive behavior” of making “false allegations” against Father. The court then terminated Mother’s parental rights.

¶3        Mother now appeals the termination decision. For the reasons set forth below, we affirm.

BACKGROUND

¶4        Mother and Father had two children during their marriage: D.M., who was born in 2012, and H.M., who was born in late 2014. Mother and Father separated in 2015 when H.M. was approximately three months old, and their divorce was finalized in 2018. Mother subsequently married another man (Stepfather).

Allegations of Abuse from 2015 Through 2020[1]

¶5        The reports of abuse began in February 2015, when DCFS received a referral alleging that during the marriage between Mother and Father, Father would “throw things, but not at [Mother], and punch holes in the doors.” DCFS chose not to accept this referral as a basis for action. In June 2015, DCFS received a referral alleging that Father views pornography “including teenaged girls.” This referral was unaccepted because there were no allegations that the Children were being abused or neglected.

¶6 In May 2016, DCFS received a referral alleging that after D.M. came back from parent-time with Father, he would not sit down because “his bottom hurt” and his anus was “red and inflamed.” The referral was not accepted because D.M. did not make any disclosure that any abuse had occurred. In September 2016, DCFS received a referral alleging that the Children had returned from parent-time with Father with black eyes and that Father commonly yelled at the Children, which allegedly made D.M. fearful to get out of bed to use the bathroom at night. The referral was unaccepted because the Children did not report any injuries from Father or provide specific details about what Father was saying to the Children.

¶7        In early October 2016, DCFS received a referral alleging that the Children were being physically abused by Father and that H.M. had been sexually abused by Father. The referral was accompanied by photographs of a bruise on H.M.’s leg. When a DCFS worker interviewed D.M. about these allegations, D.M. reported that Father had pushed him into a “monkey bag,” but D.M. couldn’t explain what a “monkey bag” was. D.M. made no disclosures of sexual abuse.

¶8        In late October 2016, Mother contacted law enforcement and reported that H.M. had complained of his “bum hurting” after returning from parent-time with Father. Mother also said that she changed H.M.’s diaper and that there was blood present and that she had also observed tearing on his anus. Mother told law enforcement that H.M. had said that Father put his finger “in there.” DCFS interviewed H.M. the following day. During that interview, H.M. said that he had been “hurt” at “daddy’s house,” but he made no other disclosures. Shortly thereafter, H.M. underwent a physical examination at the Children’s Justice Center (the CJC), but no evidence of sexual or physical abuse was discovered during this examination.

¶9      In September 2017, DCFS received a referral alleging that D.M. had been physically abused by his paternal grandfather. When DCFS interviewed D.M., D.M. said that “grandpa pushed him backwards and he fell on the rocks, because he didn’t hear grandpa.” When the grandfather was then interviewed, he acknowledged that he had accidentally knocked D.M. over during a recent visit when moving him away from something.

¶10      In June 2018, DCFS received a referral alleging that during a parent-time exchange, Mother had pulled Father’s beard and kicked him and that Father had ripped out one of Mother’s hair extensions. This case was not accepted.

¶11      In November 2018, DCFS received a referral alleging that Father attempted to hit Mother with his car and that Father had threatened to kill Mother by loosening the screws on her car. While investigating this referral, DCFS interviewed both of the Children. H.M. reported that he gets “hurt” at “all of my parents’ houses,” that his parents get frustrated with each other, and that Father punches Mother. D.M. reported that his parents are “always fighting.”

¶12 In December 2018, March 2019, and April 2019, Father made reports against Mother suggesting that she was using illegal drugs and wasn’t taking proper care of the Children. None of the referrals were accepted.

¶13 In April 2019, DCFS received a referral alleging that the Children had been “sodomized” by both Father and the paternal grandfather during visits with Father and that the paternal grandmother was aware of the abuse but not intervening. The referral also alleged that Father had punched D.M. in the stomach and testicles. As part of an investigation into these allegations, both of the Children were interviewed at the CJC. Though somewhat unclear, the record suggests that D.M. said nothing about abuse in his interview. H.M., however, said that his “old dad” is “going to be in the car when it explodes” “because he was mean to me.” H.M. also said that Father “put his penis in my bum” and “spanks [my] bum.” H.M. said that Father did the same thing to his cousins and that Mother told him this. When the interviewer spoke to Mother about what the Children had said, Mother asked the interviewer to talk to D.M. again, which the interviewer declined to do. During this investigation, Mother was “jittery and unable to finish sentences.”

¶14      In May 2019, Mother sought a protective order against Father. The protective order request was later denied. Around this same time, Mother informed DCFS that H.M. had bloody stools and that H.M. had reported that Father had “punched and kicked him.” Later that month, DCFS received information that H.M. had allegedly said Father “peed in his butt.” Father denied all allegations when interviewed by a detective from the Smithfield City Police Department.

¶15      In June 2019, DCFS received another referral alleging that the Children were being physically, sexually, and emotionally abused by Father. DCFS visited with the Children and observed no suspicious bruises. DCFS also found the accusations of physical abuse to be without merit. As part of this investigation, a DCFS caseworker and a Smithfield City Police Department detective interviewed Mother. During this interview, Mother alleged that the Children had told her that they “are being raped” and “punched in the crotch” by Father.

¶16      On July 1, 2019, Mother brought the Children to the CJC for an interview. At the outset of H.M.’s interview, and before the DCFS interviewer had even finished explaining the nature of the interview to him, H.M. said, “Well, my dad puts his penis in my bum.” H.M. said that Mother was present when this occurred, and that Father, paternal grandfather, and paternal grandmother “did it.” H.M. further reported that Father punches him with a “real hammer that is metal and black.” H.M. also reported that Father punches him in the penis and “punches me with his butt.” When asked what he saw when Father put his penis in his bottom, H.M. said, “That’s all I needed to tell you. I didn’t see anything.” When asked again what he saw, H.M. responded, “That’s all I have to tell you.” D.M. was also interviewed at the CJC that day. D.M. responded “nothing” and “I don’t know” to the majority of the interviewer’s questions. He also said that “nothing happened” at Father’s house and that “nothing happened to his brother that hurt him.” In addition, D.M. told the interviewer that Mother would talk to H.M. about events that happened at Father’s house. After finishing the interviews with the Children, the interviewer and a Smithfield City Police Department detective interviewed Mother. They encouraged Mother “not to press” the Children “for information and not to question them.”

¶17 Later that month, Mother contacted law enforcement during a parent-time exchange with Father. Mother told law enforcement that the Children wanted to share “their concerns” regarding Father. The Children spoke to law enforcement, and nothing further was reported to DCFS.

¶18      On February 21, 2020, DCFS received another referral alleging that the Children were being physically, sexually, and emotionally abused by Father. This referral alleged that Father had threatened to kill the Children and Mother if the Children reported the abuse. The referral further alleged that, within the past few days, Father had touched the Children’s genitals and “‘go[ne] inside’ their bums.” The referral also alleged that Father would give D.M. medicine to induce vomiting when D.M. would make a mistake on his homework and that Father would not allow the Children to use the bathroom in the middle of the night.

¶19      While investigating this latest referral, a DCFS investigator met with Father and the Children at Father’s home. Father denied each allegation. The DCFS investigator also observed that the Children interacted with her appropriately, appeared happy and healthy, and had no marks or bruises. During this investigation, DCFS came to believe that the Children were being emotionally abused by Mother.

¶20      On February 25, 2020, DCFS received a report that Father takes the Children to “drinking parties,” that Father stalks Mother and Stepfather, and that Father “rapes” the Children. The Smithfield City Police Department conducted a welfare check but failed to find any support for the allegations or anything out of the ordinary with the Children. At this point, the Smithfield City Police Department informed DCFS that it would no longer conduct welfare checks on the Children “because of the number of reports made and lack of findings of concern.”

¶21      DCFS interviewed the Children again at the CJC on March 2, 2020. H.M. reported that Father and neighbors put cameras outside his house and that the “cameras are made from poisonous stuff that make[s] people go crazy and rip kids’ heads off.” H.M. said that the cameras have speakers to “do bad stuff to [Mother].” H.M. denied having ever been hurt and denied that anyone told him what to say at the interview. In his interview, D.M. reported that he didn’t “remember if anything has happened to him” and that there was “nothing he needs to talk about” happening at either parent’s house. D.M. also stated that no one told him what to say at the interview.

¶22      On March 20, 2020, Mother obtained an ex parte protective order against Father. A few days later, DCFS received a report alleging that Father had been sexually inappropriate in front of the Children, that Father had raped Mother in the presence of the Children, and that Father had been telling the Children that there are cameras at Mother’s house watching them. Father denied these allegations.

¶23      On March 26, 2020, the court held a hearing on the ex parte protective order. Less than an hour before it began, Mother texted a DCFS employee and alleged that the Children wanted to tell her about abuse from Father. Mother then brought a recording of the Children alleging sexual abuse by Father to the court hearing, so the hearing was continued. At a hearing that was held on April 30, the court ordered that despite Mother’s allegations, Father could resume his previously ordered parent-time.

¶24      A few days later, Mother refused to bring the Children to the exchange point, telling law enforcement that she believed the Children were in danger. That same day, the Children were interviewed at a DCFS office. Without prompting, and without waiting for the interviewer to explain what the interview would be about, H.M. said that Father had “choked him, peed in his mouth, and put his penis in his bum and it bled, and that [H.M.’s] neck was broken.” H.M. said that these things all occurred in the middle of church and that “they” were wearing church clothes when it all happened. When asked for more detail, H.M. said, “that’s all I said, that’s all I needed to tell you about,” and he continued to reply “that’s all” and “that’s all he did” to further questions. H.M. then became emotional and visibly upset, and when asked why, H.M. responded, “[B]ecause that’s what I needed to say to you!” When asked if someone had told him what to say, H.M. said that he and Mother had “talked on the iPad about it.”

¶25      When Mother was asked about H.M.’s statements later that day, Mother claimed that H.M. must have been referring to the recorded disclosure he had previously made and which Mother had previously brought to court. Following the interview, Mother asked DCFS if she still needed to send the Children to Father for parent-time the following day. DCFS informed Mother that there was not enough information to support the allegations and that it was not recommending any adjustment to parent-time.

¶26      On May 3, 2020, law enforcement was called to conduct a welfare check at Mother’s home after she reported that she was afraid Father was going to come shoot her and the Children. A week later, DCFS received a report that Father had been unable to retrieve the Children for his parent-time. Law enforcement soon learned from the maternal grandfather that Mother and the Children were staying at a local hotel, but he would not disclose its location. On May 9, 2020, Mother brought the Children to the Bountiful City Police Department to demonstrate to law enforcement that the Children were physically safe.

¶27      On May 11, 2020, Mother called law enforcement in Tooele to report that the Children’s paternal aunt and uncle were sexually and physically abusing the Children. The next day, DCFS received an additional report that Mother had told law enforcement in Layton that the Children had been sexually abused by Father and were being victimized by a sex trafficking ring. Law enforcement stated that Mother was speaking rapidly and that the conversation “went in circles.” Law enforcement was concerned that Mother was under the influence of a substance or was suffering from a mental illness. H.M. also called law enforcement that day and reported that he had been abused.

¶28 On May 14, 2020, Father obtained a writ of assistance, authorizing the help of law enforcement to retrieve the Children from Mother. Mother refused to cooperate with this order, so Father received a second writ of assistance on May 21, 2020, authorizing law enforcement to locate Mother through cell phone tracking. The Children were eventually recovered from a hotel by law enforcement.

Protective Supervision Services Case

¶29      On May 26, 2020, the State filed an expedited verified petition for protective supervision with the juvenile court. The State requested that the Children remain in Father’s custody, with DCFS providing protective supervision services. In June 2020, the juvenile court ordered DCFS to supervise the Children’s visits with Mother moving forward.

¶30      During a supervised visit at a DCFS office on July 2, 2020, Mother, Stepfather, and a step-grandfather took the Children and left the building. H.M. cried, yelled, and became upset when the step-grandfather picked him up and carried him out. Mother and the others left with the Children despite DCFS employees telling Mother that law enforcement would be called. Law enforcement soon located Mother, Stepfather, the step-grandfather, and the Children in a nearby canyon and, pursuant to a warrant, returned the Children to Father.

¶31      On July 13, 2020, the juvenile court found that Mother had neglected the Children by attempting to alienate them from Father and by making repeated reports that Father had abused the Children. The court ordered the Children to remain in Father’s custody, and it further ordered that Mother’s visits must be supervised by a professional visit supervisor and a security guard. The court also ordered Mother and Stepfather to participate in psychological evaluations and receive treatment. Mother and Stepfather subsequently participated in the ordered psychological evaluations and participated in follow-up treatment with a psychologist specializing in high-conflict custody cases. The evaluating psychologist concluded that Mother “is stuck in her narrative about what has transpired with the Children” and that she “lacks insight into her own behaviors.”

¶32      The Children began receiving therapy from a trauma therapist (Therapist). Therapist initially diagnosed both of the Children with an acute stress disorder, though she later modified the diagnoses to post-traumatic stress disorder. Therapist opined that the Children had suffered cumulative and complex trauma because of Mother’s actions, and Therapist noted that their symptoms included intrusive thoughts, negative moods, sleep disturbances, irritable behavior, angry outbursts, and physical aggression. In an August 2020 letter to the court, Therapist said that both Children, and more particularly H.M., had expressed fear of being “stole[n]” by Mother again and of having the police “chase [them] down.” Therapist also described D.M.’s stress related to the May 2020 hotel stay.

¶33      As noted, Mother began having supervised visits with Children in July 2020. DCFS’s progress notes indicate that Mother asked “some inappropriate questions during the visits,” e.g., that she had asked the Children “multiple times if they are ok or if there is anything wrong” and that Mother also questioned the Children about “where they live, who lives with them, and if anyone is telling them not to tell her things.” Although Mother had been told several times not to talk to the Children about the case, Mother asked the Children in September 2020 “if they could tell someone about the things they told her and the things she said were not crazy,” and that if they did, “they could go home with her because ‘they think that I’m lying.’” When the supervising DCFS caseworker (Lead Caseworker) told Mother not to talk about these things with the Children, Mother became defensive and told Lead Caseworker to “back off.”

¶34      Mother’s supervised visits began proceeding without serious incident, though, and in March 2021, the juvenile court removed the requirement that a security guard be present. The court also ruled that the Children could have visits in Mother’s home if Mother provided a minimum of three negative drug tests and was in compliance with all other provisions from a Child and Family Plan. In April 2021, Therapist noted that D.M. had said that he had “mixed up feelings” about the possibility of staying at Mother’s home. D.M. said that he wanted to “stay overnight at [his] mom’s house,” but he was “scared” that she would “ask questions about [him] getting hurt” and felt like he had “to answer those things she asks.” Therapist also noted that D.M. felt pressured by Mother to say that “bad things” had happened at Father’s house. Therapist noted that D.M. feels like he “disappoint[ed]” Mother if he told her that he was safe at Father’s house.

¶35 In May 2021 and again in July 2021, the juvenile court increased the length of Mother’s visits with the Children. In September 2021, the court began allowing unsupervised visits at Mother’s home. In October 2021, however, the Children told DCFS that Mother “was starting to ask questions” about Father’s “house like before and they [didn’t] like it when” she did that. In November 2021, the Children reported to DCFS that “the visits have been going well” and that Mother “hasn’t asked them questions about [Father’s] house anymore.”

¶36      At a December 8, 2021, review hearing, the Guardian Ad Litem (the GAL) recommended closing the protective supervision services case due to the substantial completion of services provided to Mother and Stepfather. At the close of the hearing, Father was awarded primary custody of the Children, and the juvenile court ordered the Children to be released from the protective supervision of DCFS. The case was then closed.

Mother’s Allegations Against Father Resume

¶37      Less than a month after the protective supervision case was closed, a series of events occurred in rapid succession that again involved Mother implicating Father in alleged abuse.

¶38 On January 3, 2022, D.M. reported to a school counselor that Father was hitting him. D.M. was unable to provide any further context or detail about the alleged abuse. On January 4, DCFS received a referral that Mother was acting erratically and had perhaps used methamphetamine. That same day, Mother refused to return the Children to Father following a mid-week visit. On January 5, DCFS received a referral alleging that Father “may have” physically abused D.M. On January 6, Mother attempted to take the Children from their school, even though that day was not hers under the parent-time schedule. Law enforcement was called, and in the presence of both the Children and other school children, Mother accused Father of attempting to kidnap the Children. The Children went home with Father.

¶39      On January 10, D.M. was interviewed at the CJC. During the interview, DCFS received an additional report that Father was physically abusing D.M. and sexually abusing him by putting “his private parts in [D.M.’s] private parts.” When the interviewer asked D.M. about this information, D.M. stated that Father “hits [him], spanks [him], chokes [him], and hurts [him],” but he denied that Father had done anything else to his body. When D.M. was asked why he decided to talk about these things that day, D.M. stated he “wanted to get it out” and was “too scared to talk about it before.” H.M. was also interviewed at the CJC that day, but he said nothing about any abuse.

¶40      That same day, DCFS learned that the Cache County Sheriff’s Office had just received a letter that was written by D.M. in which D.M. alleged that Father had physically and sexually abused D.M. and H.M. When a detective spoke with Mother that day, Mother told him that she had “no idea” that D.M. had written the letter. On January 11, D.M. was interviewed at his school regarding the letter by a detective (Detective). D.M. said that “nobody knows about the letter” and that he had ridden his bike to drop it off in a mailbox. When asked for further details, D.M. responded, “I don’t know” and “I don’t remember.” D.M. also said that he “knew” the address for the sheriff’s office and that he had run a Google search and used YouTube on his tablet to learn how to send a letter.

¶41      Detective obtained a search warrant allowing him to examine the tablets used in Mother and Stepfather’s home. Pursuant to this search, Detective found no evidence of any searches like those described by D.M. But Detective did learn that Mother had searched “when does Sheriff read the mail” on January 10, 2022.

¶42      After obtaining this evidence, Detective interviewed Mother again at the sheriff’s office. Mother now acknowledged that she had taught D.M. how to “write this letter.” She also admitted to having looked up the address of the sheriff’s office and having taken D.M. to the post office to mail the letter. Mother then said that D.M. had told her that Father has “hit, choked, and sodomized” him and that H.M. had said that the first time Father “sodomized him” was when he was three years old. Mother said that H.M. couldn’t sit down because it hurt and that “something came out of his butt when he went to the bathroom.” Mother said she was having his underwear “tested for DNA” “in Florida,” but she refused to give Detective any more information about the alleged DNA testing. Mother said that she “knows this stuff is true” and that the Children were being “put back with” a “pedophile.”

¶43      On January 12, D.M. was again interviewed at school, this time by Lead Caseworker. D.M. began crying and stated that Mother “made me write that letter.” D.M. said that the “choking, the spanking and the hitting” “didn’t really happen” and that Mother had instructed him to write a letter about “something bad about” Father and “all the mean stuff she thinks has happened” to D.M. He said that he did not ride his bike to the post office but that Mother had helped him address the envelope and had then driven him there. Lead Caseworker also interviewed H.M. at school that day. H.M. reported that Mother “forced” D.M. to write a letter to the police because Mother “is trying to get dad arrested” “so they can live with her forever.” At trial, Therapist testified that both Children told her the same things about the events surrounding this letter and that both Children had also told her that as they were mailing the letter, Mother exclaimed, “This is a day we will celebrate every year.”

Termination Proceedings

¶44      DCFS sought protective supervision services for the Children on January 19, 2022. In February 2022, DCFS filed a petition for the termination of Mother’s parental rights.

¶45      The Children soon resumed regular therapy with Therapist. Therapist later testified that “D.M. came in very tearful, very confused. He had been through four to five interviews” in one week and was “wrestling with himself because he had lied during some of them because he felt like that was the right thing to do for” Mother. Therapist testified that D.M. was “having a lot of shame towards himself” and that D.M. told her that he felt like he had “to say that these things have happened in order to make [Mother] happy.” Therapist said that H.M. told her that he was “tired of all the asking stuff with [Mother].”

¶46      From January 2022 through the termination trial in July 2022, Mother was only allowed to have supervised visits with the Children. Therapist later testified that H.M. was initially “very, very vocal about not wanting to do the visits.” H.M. told Therapist that Mother “just—she comes at me and comes at me. I don’t want to go. I don’t want to deal with it.” After a March 2022 visit, H.M. reported to Therapist that he “didn’t like it and it didn’t feel safe.” H.M. said that “it sort of made [his] stomach hurt and like maybe she was going to take [him] again.”

¶47      Lead Caseworker later affirmed Therapist’s view that H.M. was initially hesitant to have visits with Mother after the January 2022 incidents. She subsequently testified that H.M. refused to attend one visit with Mother and that when he had visits with Mother early on, he was “emotionally dysregulated.” But Lead Caseworker also testified that H.M. eventually warmed up to the visits and that by the time of trial, he would sit in Mother’s lap and hug her. Lead Caseworker testified that D.M. was “very good” with Mother and that they “like to play together.”

¶48      The GAL was still concerned, though, and requested that Mother’s supervised visits be suspended. The court held a hearing in May 2022 to consider this request. At the close of the hearing, the juvenile court found that there was “no evidence whatsoever of any harm or trauma being caused to D.M. from the visits with [Mother] that have occurred subsequent” to January 2022 and that “[s]upervised visitation is in the best interest of the Children.” The court emphasized that it intended “for the visits between the Children and [Mother] to occur, regardless of whether the Children want to go or not.” Shortly before trial, D.M. indicated that he wanted visits with Mother to “last longer,” and H.M. indicated that he wanted the visits to be at Mother’s house.

Trial

¶49 In July 2022, the juvenile court held a four-day trial on DCFS’s petition to terminate Mother’s parental rights. The court heard testimony from 17 witnesses, including numerous professionals.

¶50      The State called Mother as a witness on the first day of trial. During her testimony, Mother claimed that she hadn’t personally seen the letter that D.M. wrote to the sheriff in January 2022 and that she was now seeing it in court for “the first time”; Mother also claimed that she didn’t know what its contents were. But the State introduced evidence showing that Mother’s assertions about the letter were not true. For example, the State introduced a video of Mother’s interview at the sheriff’s office, and this video showed Mother reading the letter. The State also introduced an email that Mother had written to her father (the Children’s maternal grandfather) after the incident that showed that she was aware of the letter’s contents.

¶51      As for the long-term allegations of abuse that had been made against Father, Mother testified twice that she didn’t know if Father had actually abused the Children. And with respect to the allegations she’d made against Father, Mother testified that she had “followed the rules” and that she had “made sure” she didn’t talk to the Children about their disclosures to authorities.

¶52      Lead Caseworker testified at trial. She testified that the Children had been traumatized by “the fear of them being taken,” noting that H.M. has “dreams about a commander coming into a hotel room,” which Lead Caseworker linked to the incident in 2020 in which law enforcement retrieved the Children from the hotel. Lead Caseworker also testified that DCFS sought termination of parental rights instead of another round of protective supervised services because DCFS had “exhausted all options.” She said that while Mother “in her own testimony has said that she learned a lot [from the protective supervision services case] and that she . . . knew at the time what to do in that situation,” Lead Caseworker didn’t “know what more we could provide.”

¶53      Therapist testified at trial too. According to Therapist, when she began seeing the Children in January 2022, the Children “expressed a fear” about “what possibly may happen again,” wondered if Mother “would take [them] again,” and asked whether they would “have to go to the hotel again.” When Therapist was asked whether she thought there was “anything less significant than the complete termination of [Mother’s] rights that can adequately protect these Children,” she responded, “if we look at adequate protection coupled with normalcy, the answer to that is no.” Therapist further testified that her recommendation for terminating Mother’s parental rights “was based on the cumulative therapy [she] had done with the [Children] in the last few years” and that she thought that termination was in “their emotional best interest.” Therapist testified that H.M.’s “exact words” to her were, “How would you feel if this were always happening to you? I just want a normal life.” When she was asked how Mother could be stopped from continuing to traumatize the Children, Therapist testified, “We stop the interaction.” She also testified that although DCFS “may have talked about the possibility of supervised visitation,” “that’s not really along the normal, natural developmental means, and so I didn’t feel like that was the best option.”

¶54      In the GAL’s closing argument, she emphasized that “[c]ontact that isn’t highly structured and supervised, holding [Mother] accountable, results in trauma to these Children. They’ve expressed discomfort about the idea of being in [Mother’s] presence without a protective third party present.” The GAL further asserted that Mother “cannot be trusted to follow a court order. She cannot be trusted to act in the best interest of her children. Supervising visits for the rest of these Children’s childhood is not feasible, it’s not in their best interest, it’s not appropriate. Nothing less than termination of this relationship can adequately protect these Children now and into the long term.”

¶55      After the GAL’s closing argument concluded, Mother’s counsel asserted in her own closing argument that “[t]o presume that—first of all, that there’s no other choice but termination in this case, I don’t think it’s a reasonable position.” Mother’s counsel argued that

there were no specific reasons given during trial as to why these other options were not possible. Some of these less—you know, short of termination options would be to reopen the [protective supervision services] case and to implement . . . a reliable source for the kids to contact directly as to eliminate . . . the possibility of them making reports to either parent, to implementing a high-conflict therapist/family counselor . . . . Or start a new [protective supervision services] case . . . . Or permanent legal custody and guardianship with the dad, but which would allow the mom to remain in the kids’ lives and continue playing an active role in that. There are other options that would—that are short of termination that would preserve—that would enable the kids to continue having a relationship with their mother.

Mother’s counsel asserted that Mother had “worked hard and earnestly” to “be a better mom” and “did everything she was asked to do.” Mother’s counsel admitted that after the close of the protected supervision services case, “not all of the recommendations made by the therapist were followed,” but counsel suggested that if there had been “an assigned family therapist in place . . . we wouldn’t be here today.” Counsel concluded her argument by requesting that the court reopen the prior protective supervised services case and “require the parties to comply with the recommendations as given by the service providers.”

Termination Decision

¶56      The juvenile court subsequently issued a written decision terminating Mother’s parental rights to the Children.

¶57      Early in this ruling, the court found the testimony of Therapist to be “both credible and helpful in provid[ing] understanding of the harm done to the Children due to the actions of [Mother].” By contrast, the court found that Mother’s testimony at trial “was not credible and at times was simply untruthful.” Specifically, the court contrasted Mother’s testimony that she had never seen D.M.’s January 2022 letter and that she was unaware of its contents with the video showing her reading the letter at the sheriff’s office. The court also found that Mother had given “different versions of her story of how [D.M.] wrote the letter and how the letter was then mailed to the sheriff’s office.”

¶58      Addressing the January 2022 letter, the court found that D.M. “first lied to the sheriff deputy and stated that he wrote the letter without the help of his mother and rode himself to the post office to mail the letter,” and the court opined that it “cannot find any other reason for [D.M.] to lie about how the letter was written and delivered to the post office other than [Mother] telling him to do so.” The court found that “the allegations stated in the letter were false and were contrived by [Mother] to cause harm to and further alienate [Father] with his Children.”

¶59      The court then found that six grounds for termination had been established: abuse, neglect, unfitness, failure to provide care, token efforts, and “other.” As part of its unfitness analysis, the court found that “[a]fter years of unsubstantiated allegations of abuse against Father,” Mother “still fails to show any real remorse for her actions and their consequences on the Children. She simply testified that she ‘doesn’t know’ whether or not the Children have been or are being abused by” Father. The court found that “[a]fter years of therapy and services by DCFS, [Mother] refuses to take any responsibility for her behavior.” The court concluded that Mother “has shown that she cannot stop her destructive behavior regarding false allegations and refuses to take any responsibility regarding the Children’s statements to DCFS and law enforcement.”

¶60      The court then determined it was in the Children’s best interest to terminate Mother’s rights and that it was also strictly necessary to do so. In its best interest determination, the court found that Mother “is unable to accept any court order that does not grant her primary care and custody of the children and will distort facts and perceptions until it makes sense to her that she should have custody.” The court found that Mother

has not demonstrated the ability to sustain progress in treatment that shows that the Children would be safe in her care. Her actions taken less than a month after the protective supervision services case closed demonstrates that she has not responded to the extensive services provided to her. [Mother] has shown that when she is not subject to the strict oversight of DCFS and this Court, she reverts to allegations of abuse against [Father].

¶61      Under a separate subheading devoted to the strictly necessary determination, the court found it had “considered less-restrictive alternatives than termination of [Mother’s] parental rights” and that a “permanent custody and guardianship arrangement is unworkable and not in the best interest of the Children.” The court found that Mother “has made or caused to be made a multitude of false allegations of physical and sexual abuse against [Father] throughout a period [of] seven years, causing the Children to be interviewed repeatedly and examined and having their lives investigated.” The court further found that “[a]ny contact” that Mother has with the Children “is likely to result in an additional false allegation, necessitating additional investigation, interviews, etc., all to the serious detriment of the Children.” Finally, the court found that even when it “ordered [Mother] to be restricted to supervised visits by DCFS with the children, [Mother] absconded with the children. The Court cannot perceive a less-restrictive alternative which would protect the Children from further trauma without terminating [Mother’s] parental rights.”

ISSUES AND STANDARDS OF REVIEW

¶62    Mother challenges the termination order on two primary grounds. First, she argues that in its best interest analysis, the juvenile court “failed to consider all the facts” and improperly relied on past events rather than engaging in a present-tense inquiry. Second, she argues that the court “did not make findings as to why supervised visitation was not feasible.”

¶63      This court applies “differing standards of review to findings of fact, conclusions of law, and determinations of mixed questions of law and fact.” In re E.R., 2021 UT 36, ¶ 14, 496 P.3d 58. “A best interest determination involves neither a pure finding of fact nor an abstract conclusion of law. This is a mixed determination of law and fact—in which the abstract law is applied to a given set of facts.” Id. ¶ 17. “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.” Id. ¶ 31 (quotation simplified).[2]

ANALYSIS

¶64      The Utah legislature has determined that “[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 § 80-4-104(8). In light of this, a “juvenile court should only transfer custody of a child from the child’s natural parent for compelling reasons and when there is a jurisdictional basis to do so.” Id. “When the [juvenile] court considers a child’s welfare and best interest, the court’s focus should be firmly fixed on finding the outcome that best secures the child’s well-being.” In re B.T.B., 2020 UT 60, ¶ 64, 472 P.3d 827.

¶65      To terminate a parent’s rights, a court must find that (1) a statutory ground for termination exists and (2) termination is in the child’s best interest. See id. ¶¶ 19–20. With one minor exception that we address below in Part III, Mother’s appeal does not challenge the court’s determination that there were grounds to terminate her parental rights. Rather, Mother’s appeal is focused on the best interest portion of the court’s ruling.

¶66      “The best-interest inquiry is wide-ranging and asks a court to weigh the entirety of the circumstances of a child’s situation, including the physical, intellectual, social, moral, and educational training and general welfare and happiness of the child.” In re J.J.W., 2022 UT App 116, ¶ 26, 520 P.3d 38 (quotation simplified). By statute, a court can only find that termination is in the best interest of a child if it also finds that “termination of parental rights, from the child’s point of view, is strictly necessary.” Utah Code § 80-4-301(1); accord In re B.T.B., 2020 UT 60, ¶ 66. The “statutory language uses the verb ‘is,’ indicating that the best-interest inquiry is to be undertaken in a present-tense fashion.” In re Z.C.W., 2021 UT App 98, ¶ 13, 500 P.3d 94. Moreover, Utah law presumes that “Lilt is in the best interest and welfare of a child to be raised under the care and supervision of the child’s natural parents.” Utah Code § 80-4-104(8). In light of this, a juvenile court “must determine whether a feasible option short of imposing the ultimate remedy of terminating the parent’s rights exists, and if it does, the court must choose it.” In re K.Y., 2022 UT App 149, ¶ 34, 523 P.3d 1159 (quotation simplified).

¶67      As noted, Mother advances two main challenges to the court’s ruling. First, Mother argues that the court did not properly account for the present-tense best interest of the Children, but that it instead improperly relied “on outdated information.” And second, Mother argues that the court erred by not determining on the record whether an order of ongoing supervised visitation was a feasible non-termination option. We reject both challenges.

  1. Present-Tense Best Interest of the Children

¶68      Mother argues that the court’s conclusion that it was in the best interest of the Children to terminate her parental rights was “based on outdated information.” In Mother’s view, the court failed to properly account for the fact “that between January 2022 and July 2022, Mother had supervised visits without incident.” We disagree.

¶69    Again, it’s settled that “the best-interest inquiry is to be undertaken in a present-tense fashion.” In re Z.C.W., 2021 UT App 98, ¶ 13. “Because children inhabit dynamic environments in which their needs and circumstances are constantly evolving,” the best interest inquiry must “be undertaken in a present-tense fashion, as of the date of the trial or hearing held to decide the question.” In re A.H., 2022 UT App 114, ¶ 34, 518 P.3d 993 (quotation simplified), cert. granted, 525 P.3d 1279 (Utah 2023). “In a best-interest inquiry, the relevant question is almost always this one: what outcome is in the child’s best interest now?” In re Z.C.W., 2021 UT App 98, ¶ 12 (emphasis in original).

¶70      The juvenile court’s order in this case was properly couched in present-tense terms. In its findings on unfitness, for example, the court found that Mother “still fails to show any real remorse for her actions and their consequences on the children.” (Emphasis added.) The court also found that Mother “has shown that she cannot stop her destructive behavior regarding false allegations and refuses to take any responsibility regarding the children’s statements to DCFS and law enforcement.” (Emphases added.) Then, in a subsection that was specifically directed at the best interest determination, the court found that Mother’s “intent and the effect of her actions is to disrupt any semblance of stability the children might enjoy regarding [Father] while in his care,” and it further found that Mother “is unable to accept any court order that does not grant her primary care and custody of the children and will distort facts and perceptions until it makes sense to her that she should have custody.” (Emphases added.) And in another subsection that was specifically devoted to the strictly necessary determination, the court found that “any contact [Mother] has with the children is likely to result in an additional false allegation, necessitating additional investigation, interviews, etc., all to the serious detriment of the children,” that “Mother has not shown that she can stop the false allegations” against Father, and that Mother “fails to even acknowledge that the allegations are false or that she is in any way responsible for them.” (Emphases added.) In these and other instances in the ruling, the court made it clear that it was making a determination about the present-tense best interest of the Children.

¶71      Given this, Mother’s argument is ultimately focused on the alleged lack of evidentiary support for that conclusion. Mother asserts that although the court’s ruling may have been written in the present tense, the information that it relied on was so old or stale that the court had no valid basis for concluding that termination was in the Children’s present-tense best interest. We disagree.

¶72      In virtually any decision that’s made in law or life, questions about the present must in some measure be answered through consideration of relevant events from the past. As famously put by Faulkner, the “past is never dead. It’s not even past.” William Faulkner, Requiem for a Nun 92 (1951).

¶73      Our cases have recognized as much in this very particular legal context. Although it’s true that the best interest determination is made in the present-tense, it’s also true that “considering what a child’s best interest is at the time of trial does not require ignoring historical patterns.” In re A.K., 2022 UT App 148, ¶ 8 n.3, 523 P.3d 1156 (quotation simplified), cert. denied, 527 P.3d 1106 (Utah 2023). Rather, “a juvenile court judge conducting a best interests analysis must weigh evidence forecasting future events in order to predict what course of action will best protect and nurture the child.” In re C.L., 2007 UT 51, ¶ 22, 166 P.3d 608 (quotation simplified). Since neither judges nor expert witnesses are soothsayers, the evidence that a court would rely on to “forecast[] future events” would naturally include evidence of things that had happened in the past between the parent and the children. In this sense, a court is tasked with “weigh[ing] a parent’s past conduct with her present abilities” in order to make the statutorily required determination. In re B.R., 2007 UT 82, ¶ 13, 171 P.3d 435.

¶74    Mother recognizes this, but she nevertheless argues that there must be some point at which the evidence is too distant to support a determination about a child’s present-tense best interest. In concept, we agree. But in application, we disagree with Mother’s suggestion that the evidence in this case was so remote that it could not be relied on.

¶75 Mother first points out that much of the court’s ruling was based on events that had occurred years before trial. And she’s right—the court did make repeated reference to events that had occurred years earlier. But even so, we think it significant that the court was not focused on an isolated event or two that had occurred in the far distant past. Rather, the court was focused on a pattern of events that had unfolded over the course of several years. As recounted at some length above, Mother began making allegations of sexual and physical abuse against Father in 2015, and she kept making such allegations over the course of the next five years. Mother kept doing so despite the apparent lack of any corroborating evidence. And she repeatedly encouraged her young children to make allegations against Father as well, even though this resulted in the Children being subject to repeated interviews and even physical examinations, and she also did so despite the transparently imaginative nature of some of the allegations.[3] Given that the juvenile court’s inquiry in this case was in some measure predictive, its focus on a pattern of behavior that had extended over several years would of course have probative value.

¶76    Even so, Mother points out that her behavior had improved enough by the later months of 2021 to prompt the juvenile court to close the protective supervision services case in December 2021. But as the juvenile court stressed in its termination order, within just a few weeks of that case being closed, Mother encouraged D.M. to write a letter to law enforcement with yet another allegation of abuse, Mother lied to authorities when questioned about her involvement in that letter, and Mother publicly accused Father of attempting to kidnap the Children during a confrontation at a school (and she did so in front of other children, no less). These events certainly gave the court some basis for reassessing its conclusion from December 2021 that Mother’s pattern of troubling behavior had come to an end.

¶77      This leads to Mother’s final assertion, which is that the January 2022 events could not support the termination order that was entered in July 2022 because no further incidents occurred during the January-to-July interim. As an initial matter, we have some skepticism about Mother’s suggestion that events that occurred five months before trial are indeed so remote that they could not inform the court’s present-tense best interest determination. And our skepticism of this argument is particularly warranted here, where the events that occurred in January 2022 are consistent with a prior pattern of events that had stretched out over the course of several years. After all, even during the 2015 through 2020 period, there were several stretches of several months in which Mother didn’t make any allegations. Yet each time, the period of dormancy was later interrupted by new allegations of abuse.

¶78      But more importantly, we disagree with Mother’s suggestion that nothing of note had occurred in the January-to-July interim. In reviewing the juvenile court’s termination decision, two things stand out.

¶79      First, at the time of the July trial, the court now had access to new information (primarily from Therapist) about the harm that Mother’s long-term behavior had inflicted on the Children. On January 24, 2022, Therapist wrote that D.M. reported “feeling very confused because [Father] never did that stuff” but that D.M. did not want to disappoint Mother. Therapist said D.M. felt “sort of unsafe” because of the events surrounding the January 2022 letter and “all the question asking.” And Therapist also said that H.M. reported feeling “tired of all the asking stuff” with Mother and that H.M. thought that life felt “sad and mad and scary” as a result. In a June 2022 letter, Therapist then informed the court that after a March 2022 visit with Mother, H.M. told her that he “didn’t like it and it didn’t feel safe.” She said that H.M. told her that “it sort of made [his] stomach hurt and like maybe she was going to take [him] again.”

¶80      Therapist’s testimony at trial gave the court even more insight into these harms. Therapist testified that D.M. was tearful in his January 2022 session and that he was “wrestling with himself because he had lied during some of [the interviews] because he felt like that was the right thing to do for [Mother].” Therapist testified that D.M. was “having a lot of shame towards himself” and that D.M. had told her he felt like he had “to say that these things have happened in order to make [Mother] happy.” Therapist also testified that after the January 2022 incidents, H.M. was “very, very vocal about not wanting to do the visits” with Mother. She testified that H.M. told her that “[m]y mom just—she comes at me and comes at me. I don’t want to go. I don’t want to deal with it.” She further testified that H.M.’s “exact words” to her were, “How would you feel if this were always happening to you? I just want a normal life.”

¶81      The court didn’t have this information when it closed the case in December 2021, but it did have this information at trial. And this information could properly inform any decision about what was in the best interest of the Children moving forward.

¶82      Second, the court also had new information about Mother’s mindset. In its order, the court found that Mother’s trial testimony “was not credible and at times was simply untruthful.” For example, the court noted that Mother testified twice that she was seeing D.M.’s January 2022 letter for the first time in the courtroom, even though a video of an earlier interview with law enforcement showed Mother reading that letter then. The court also highlighted Mother’s contrasting stories about how D.M. had written the letter. And the court further determined that Mother’s “statements that she has no opinion on whether she believes” that Father abused the Children were “not credible[,] taking into account the history of her actions in this matter.”

¶83      Based in part on Mother’s July 2022 trial testimony, the court found that Mother “still fails to show any real remorse for her actions and their consequences on the Children.” And the court found that although Mother “believes it improves her standing to now say that she ‘doesn’t know’ or has no opinion on whether or not the Children have been abused,” she “continues to deny responsibility for the continuous harm of false allegations.” Mother’s testimony and the court’s observations of her mindset were, of course, new information. And this new information would have some proper bearing on the court’s assessment of whether it was presently in the Children’s best interest to terminate Mother’s parental rights.

¶84      Pushing back, Mother points to some contrary evidence showing that there had been some improvement in her relationship with the Children. For example, Lead Caseworker testified that while H.M. initially showed some hesitancy at the visits, by the time of trial he would “sit in mom’s lap now where he wouldn’t do that before. You know, he’ll hug her. Things like that.” Lead Caseworker also testified that “D.M. is very good with his mom. I mean, it seems like they like to play together. And they just have fun when he’s there.” And at trial, Lead Caseworker said that she could not remember any time since January 2022 that the Children expressed to her “any concerns or anxiety about contact with their mom.” Also, minutes from a March 2022 hearing indicate that Mother had “been appropriate on her visits.” And in a DCFS Progress Report written a month before trial, D.M. “report[ed] that he wants the visits to last longer and [H.M.] asked to have the visits in [Mother’s] house.”

¶85      But again, a “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). Here:

  • The events that occurred from 2015 through 2020 gave the court ample reason to find that Mother had a long-term and persistent desire to make allegations of abuse against Father, that she was willing to directly involve the Children in those efforts, and that she was willing to ignore court orders (such as those she ignored when absconding with the Children on two occasions in 2020).
  • The events of January 2022 and Mother’s non-remorseful testimony at trial gave the court reason to believe that Mother’s good behavior in late 2021 had been temporary, rather than permanent, and that Mother still persisted in her beliefs about Father and her willingness to manipulate the Children or court processes to support her views.
  • And the new evidence that the court received leading up to trial and then at trial gave it additional information about the harm that was being done to the Children by Mother’s behavior.

¶86      In short, the court was tasked with making a present-tense determination, and its decision reflects that it did. In making that determination, the court could properly consider past and present events together. Although the court had concluded in December 2021 that the protective supervision case should be closed, more recent events had given the court reason to reassess its conclusions about Mother’s ongoing danger to the Children. Given the evidence that was before the court at trial, we see no basis for concluding that the court’s decision was improperly based on stale evidence. We therefore reject this argument.

  1. Supervised Visitation

¶87      A court may only terminate a parent’s rights if it finds that termination is in the child’s best interest and that “termination of parental rights, from the child’s point of view, is strictly necessary.” Utah Code § 80-4-301(1). “The strictly necessary language is designed to ensure that the court pause long enough to thoughtfully consider the range of available options that could promote the child’s welfare and best interest.” In re B.T.B., 2020 UT 60, ¶ 69. “If the child can be equally protected and benefited by an option other than termination, termination is not strictly necessary” and “the court cannot order the parent’s rights terminated.” Id. ¶ 66. Moreover, when a juvenile court is presented with a readily apparent non-termination option, the court must “state, on the record, its reasons for rejecting feasible alternatives.” In re K.Y., 2022 UT App 149, ¶ 43 (quotation simplified). This “leaves no room for implicit rejection.” Id. (quotation simplified).

¶88      As noted, the court heard both evidence and argument suggesting that supervised visitation was not a viable solution moving forward. Therapist testified that although DCFS “may have talked about the possibility of supervised visitation,” “that’s not really along the normal, natural developmental means, and so I didn’t feel like that was the best option.” And in closing argument, the GAL argued that “[s]upervising visits for the rest of these children’s childhood is not feasible, it’s not in their best interest, it’s not appropriate.” As also noted, the juvenile court then made a series of findings about why it was strictly necessary to terminate Mother’s parental rights. Despite these findings, Mother argues that the juvenile court “erred as a matter of law when it did not make findings as to why supervised visitation” was not a feasible alternative to termination. We disagree with Mother’s claim that the ruling was lacking in this respect.

¶89      The cases in which we’ve found that a court erred by not addressing a feasible alternative have involved termination orders that were far less clear than the one at issue here. In In re K.Y., for example, the court’s best interest analysis was just two paragraphs long. See 2022 UT App 149, ¶ 28. After the State asserted on appeal that the juvenile court had at least “implicitly” rejected a potential guardianship within those two paragraphs, id. ¶ 42, we rejected that assertion, explaining that it was unclear to us “which conclusion” the court would have even reached about a potential guardianship, id. ¶ 44. The order at issue in In re J.J.W. had similar infirmities. There, “the court’s best-interest analysis consisted of a single paragraph.” 2022 UT App 116, ¶ 16. And while we agreed that the court had “by necessity” implicitly rejected guardianship as an option, id. ¶ 32, we still reversed because we still saw no explanation for why the court thought that guardianship was not a viable option, id. ¶ 35.

¶90      The ruling at issue in this case is decidedly different. The court devoted nearly three pages of analysis to the best interest inquiry alone, and it then devoted an additional page and a half to the strictly necessary determination. In addition, the ruling as a whole spans over 40 pages, and many of the court’s findings and conclusions from the other sections were interconnected and had obvious bearing on the best interest and strictly necessary determinations. Thus, unlike the orders at issue in prior cases where we’ve found this kind of error, the court here issued a detailed order that gave clear insight into its thinking about the relevant questions.

¶91      This leads to the question of whether the court’s ruling left any room for ongoing supervised visits as a non-termination option. Here, the subsection on the strictly necessary determination began with the court’s declaration that it “ha[d] considered less-restrictive alternatives than termination of [Mother’s] parental rights” and its conclusion that a “permanent custody and guardianship arrangement is unworkable and not in the best interest of the Children.” Under the same subheading, the court recounted the incidents in which Mother had previously absconded with the Children. The court specifically highlighted the fact that the second absconding incident had occurred when Mother “abducted the children from a division-supervised visit at the Division’s offices in July 2020.” The court then stressed that “[e]ven when the Court ordered the mother to be restricted to supervised visits by DCFS with the children, mother absconded with the children.” With this as something of a springboard, the very next sentence read, “The Court cannot perceive a less-restrictive alternative which would protect the children from further trauma without terminating mother’s parental rights.” The court’s focus was thus explicit and clear: the court had concluded that the only way to protect the Children from Mother inflicting “further trauma” on them by absconding with them again was to terminate her parental rights.

¶92      Mother nevertheless stresses that she had not absconded with the Children recently, and in light of this, she suggests that it’s unclear why, or perhaps even whether, the court was ruling out supervised visits as a viable option moving forward. But in cases such as In re K.Y. or In re J.J.W., we were left guessing at the court’s ruling or rationale. Here, however, it requires no guesswork to see that the court had indeed rejected ongoing visitation as an option, nor is there any question about why the court had done so. Again, in the subsection of its ruling that addressed the best interest determination, the court found that Mother “is unable to accept any court order that does not grant her primary care and custody of the children and will distort facts and perceptions until it makes sense to her that she should have custody.” And in the subsection that more particularly addressed the strictly necessary inquiry, the court found that “Mother has not shown that she can stop the false allegations against” Father and that “[a]ny contact the mother has with the children is likely to result in an additional false allegation, necessitating additional investigation, interviews, etc., all to the serious detriment to the children.”

¶93      This ruling thus foreclosed the possibility of ongoing supervised visits as a viable alternative to termination. Taking the court at its word, the court’s express finding that “any contact” carried the risk of causing potential harm to the Children by definition ruled out ongoing supervised visits. And the court’s focus on the prior absconding events, coupled with its findings about Mother’s current lack of remorse, collectively explained why the court thought that even supervised visits would still present an unacceptable risk—whether it be of Mother absconding with the Children again or of using any visits (even supervised ones) to raise new allegations of abuse against Father. All of this is drawn directly from the court’s ruling.

¶94      In short, the juvenile court was sufficiently clear about its finding that termination was in the best interest of the Children and that termination was also strictly necessary, and the rationales given by the court directly foreclosed ongoing supervision as a feasible option. We see no basis for reversing the decision.

III. Mother’s Additional Arguments

¶95      Mother briefly raises three additional issues on appeal. But none of them warrant reversal.

  1. Adoption

¶96      At the back end of the best interest section of its ruling, the juvenile court found, “It is in the children’s best interests to terminate the parental rights of [Mother] so they may be free from abuse and neglect, so they may receive the proper safety, parenting, bonding, love, affection and stability they need, and so they may be adopted where they are safe, secure and stable.” Mother now argues that the court should not have relied on adoption in its best interest analysis because “adoption by a stepparent is wholly unnecessary” since “Father has sole custody.”

¶97      Our best interest cases have suggested that a court should not terminate a parent’s rights based on the “categorical concern” that adoption provides more stability to children than some other non-termination option. See, e.g.In re J.A.L.2022 UT 12, ¶ 25, 506 P.3d 606. But we disagree with Mother’s suggestion that the ruling here was categorical in nature. The court’s ruling was not only extensive, but it was focused on particular findings of the harm inflicted on the Children by Mother. We see no basis for overturning the decision based on the court’s stray reference to adoption in a single portion of the ruling.

  1. “Piling On”

¶98 Mother also argues that the court “piled on its grounds rulings by basing all six of its grounds-related findings on the same ‘emotional abuse.’” Mother argues that this practice violated “the spirit of the ‘grounds’ statutes, if not the letter,” because “[p]iling on multiple grounds based on the same subset of facts simply renders the additional ‘grounds’ superfluous.”

¶99      But Mother concedes that this practice “do[es] not provide independent grounds for relief on appeal.” And while Mother points to some caselaw from the attorney discipline context that might suggest that it’s problematic to “pile on” multiple overlapping charges, Mother provides no authority that supports her view that a juvenile court cannot base a termination decision on multiple grounds if the statutorily defined elements of those multiple grounds have some or even substantial overlap. We’re aware of no such authority either, and we therefore see no basis for overturning this ruling as a result of this alleged problem.

  1. Mandatory Reporting

¶100    Finally, Mother argues that “the court’s findings of emotional abuse are not supported by Utah law, where parents have both a right and a responsibility to report perceived abuse to authorities.” In Mother’s view, the “court’s decision sets up a scenario that fails to protect” children from “physical abuse and instead deems them ‘emotionally abused’ if one parent reports repeated, suspected abuse by the other.” Mother thus argues that the “court’s decision faults” her “for protecting [the] Children as she thought best.”

¶101    But the juvenile court’s extensive findings in this case leave no room for the conclusion that Mother’s rights have been terminated for anything like a good faith effort to protect the Children. The juvenile court found, with ample support, that Mother has engaged in a years-long campaign of filing unsupported or false reports of abuse against Father, that Mother has co-opted her children into being participants in this campaign (despite the fact that doing so caused them to be subjected to multiple police interviews and even physical examinations), that Mother has defied court orders and absconded with her children on two occasions, and that Mother lied to law enforcement and the court during the course of official interviews and proceedings.

¶102    We thus emphasize that a parent’s rights should not be terminated for making a good faith report of suspected abuse. But we likewise emphasize that nothing like that happened here. Rather, under the terms of the court’s order, Mother’s rights were terminated because of her years-long pattern of abusive behavior toward her children, not because of a good faith attempt to protect them.

CONCLUSION

¶103 The juvenile court did not err in relying on past events to support its present-tense best interest analysis, nor did it fail to account for the possibility of ordering ongoing supervised visits in its strictly necessary determination. Its decision to terminate Mother’s parental rights is accordingly affirmed.

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


[1] It’s appropriate at the outset to explain some of the word choices and information gaps in our recitation of the history of this case. As indicated in the introductory paragraphs of this opinion, this case centers on a years-long history of reports of abuse that were made against Father. The reports themselves are not in the record, so the record is limited to descriptions of those reports that came from others (most commonly the juvenile court in its various rulings).

In many instances, the passive voice was used when describing who had made an individual report—i.e., the record would say something like, “a referral was made.” To be faithful to the record, we’ve proceeded similarly. Also, the record sometimes says that a report was made but doesn’t then say what DCFS or law enforcement did with that report. And in some instances, the record makes passing reference to a reason a report was unaccepted without then providing much (or even any) explanatory detail. Our silence reflects those omissions too.

While acknowledging these caveats upfront, we note that the clear implications of the record generally and of the juvenile court’s termination decision more particularly are that (1) with the exception of the reports that were made by the Children themselves, it was Mother who was making most (if not all) of the reports of abuse against Father and (2) none of the reports of physical or sexual abuse that were made against Father were corroborated or accepted by DCFS or law enforcement.

[2] Mother also advances a few additional arguments relating to the grounds for termination and the broader scope of the allegations against her. These arguments are subject to this same standard of review, and we address them together in Part III.

[3] 3. As noted, the allegations included such things as an exploding car, Father allegedly punching a child in the bottom with a hammer, and Father somehow assaulting and even breaking a child’s neck in the middle of a church service.

Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

In re K.R. – 2023 UT App 75 – termination of parental rights vs. guardianship

In re K.R. – 2023 UT App 75

 

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF K.R. AND R.B.,

PERSONS UNDER EIGHTEEN YEARS OF AGE.

R.S.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Per Curiam Opinion

No. 20230255-CA

Filed July 13, 2023

Third District Juvenile Court, Salt Lake Department

The Honorable Monica Diaz

No. 1207437

Kelton Reed and Lisa Lokken

Attorneys for Appellant

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

Verdoia, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

Before JUDGES MICHELE M. CHRISTIANSEN FORSTER, DAVID N.

MORTENSEN, and AMY J. OLIVER.

PER CURIAM:

 

¶1        R.S. (Mother) appeals the juvenile court’s order terminating her parental rights with respect to K.R. (Brother) and R.B. (Sister) (collectively, the children). Mother alleges the juvenile court exceeded its discretion in determining that it was strictly necessary to terminate her rights rather than awarding permanent custody and guardianship to the children’s maternal grandmother (Grandmother). We affirm.

¶2        In January 2022, the Department of Child and Family Services (DCFS) received a report that Mother was using drugs and neglecting Sister, who was an infant at the time. Four-year-old Brother was already living with Grandmother, and DCFS soon placed Sister with Grandmother as well.

¶3        Following a disposition hearing, the Court set a primary goal of reunification and set up a child and family plan. Mother received an initial substance abuse and mental health assessment but made no progress toward receiving treatment. She took only five of ninety-six required drug tests and tested positive on all five.

¶4        Nevertheless, Mother continued to demonstrate an attachment to the children. She participated in visits with the children on a bi-weekly basis, although she did miss some visits and had not seen the children for several weeks prior to the termination trial. The visits were supervised by a DCFS caseworker (Caseworker), and the children had to travel six-and-a-half hours round trip to attend. On some occasions, Mother cancelled visits without notifying Grandmother, leading the children to make the trip unnecessarily. Brother became upset when Mother missed visits with him.

¶5        Early on, Caseworker observed Mother having “inappropriate conversations” with Brother regarding Grandmother, such as telling him that Grandmother was not properly caring for him. Caseworker would redirect Mother to more appropriate topics, and “with reminders, this behavior . . . stopped.” Mother engaged with the children during visits and planned activities for them to do together.

¶6      Grandmother and Mother used to have a good relationship, but it had deteriorated due to Mother’s drug use and the DCFS case. According to Grandmother, Brother’s behavior would “deregulate[] for a couple days” after visits with Mother and he would become belligerent toward Grandmother. Mother would send Grandmother insulting text messages, and she had trouble respecting boundaries Grandmother set. Both women indicated they would not be comfortable “co-parenting” with one another.

¶7        Following the termination trial, the juvenile court found several grounds for termination, which Mother does not challenge on appeal. The court then turned to the best interest analysis, including the question of whether termination of parental rights was strictly necessary.

¶8        The court considered whether awarding permanent guardianship to Grandmother was an alternative to termination that could “equally protect and benefit the children.” However, the court ultimately determined that termination was strictly necessary for the following reasons:

·         Mother and Grandmother “do not have a relationship” and are “unable to communicate regarding the children’s needs and wellbeing.” And while Grandmother attempts to set reasonable boundaries, Mother does not respect them. Mother herself acknowledged that “having her and [Grandmother] co-parent would not be healthy for the children.”

·         Mother had a history of making inappropriate comments regarding Grandmother to Brother during parent time. These comments led Brother to become belligerent toward Grandmother following visits. Although Mother had stopped making such comments at the direction of Caseworker, the court was concerned that she would “revert to making these comments, without the oversight of the Division.” The court found that pitting the children against their caregiver in this way was “unhealthy” for their “emotional development and wellbeing.”

·         Visits with Mother “are emotionally hard on the children.” Brother experiences behavioral problems after visits with Mother.

·        The children have to travel six-and-a-half hours round trip to visit Mother. Because Mother does not communicate with Grandmother, she does not let her know when she is unable to attend visits. This has led the children to “endure the travel time needlessly.” Additionally, it is emotionally hard on Brother when Mother misses visits. The long travel time, emotional harm due to missed visits, and Mother’s inability to communicate with Grandmother combine to undermine the children’s stability. “They need to know that their relationships are stable and that they can count on the adults in their lives. . . . [Mother] missing visits undermines and disregards the children’s psychological and emotional security.”

·        The children are happy and thriving in Grandmother’s care. She addresses their physical, mental, developmental, and emotional needs. The children are bonded to their extended family, which consists of Grandmother’s husband and other children living in Grandmother’s home. The children “need a permanent home,” and “[f]rom the children’s point of view, that home is [Grandmother’s] home.”

Based on these factors, the court found that termination of Mother’s parental rights was “strictly necessary from the children’s point of view.”

¶9        Mother challenges the juvenile court’s determination that termination of her rights was strictly necessary. “Whether a parent’s rights should be terminated presents a mixed question of law and fact.” In re B.W., 2022 UT App 131, ¶ 45, 521 P.3d 896 (quotation simplified), cert. denied, 525 P.3d 1269 (Utah 2023). “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).

¶10 Mother asserts (1) that the court did not appropriately weigh certain evidence and (2) that the court inappropriately focused on the needs of the adults rather than the children by basing its decision on Mother and Grandmother’s inability to “coparent” the children.

¶11      Before terminating a parent’s rights, the court must find that termination is “strictly necessary to promote the child’s best interest.” In re B.T.B., 2020 UT 60, ¶ 60, 472 P.3d 827. And this analysis must be undertaken from the child’s point of view. See Utah Code § 80-4-301(1); In re B.T.B., 2020 UT 60, ¶ 64. “Termination is strictly necessary only when, after exploring possible placements for the child, the juvenile court concludes that no 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 J.P., 2021 UT App 134, ¶ 15, 502 P.3d 1247 (quotation simplified). “If the child can be equally protected and benefited by an option other than termination, termination is not strictly necessary.” Id. (quotation simplified).

¶12      The strictly necessary analysis “is designed to ensure that the court pause long enough to thoughtfully consider the range of available options that could promote the child’s welfare and best interest.” In re B.T.B., 2020 UT 60, ¶ 69. “[I]f a court has complied with its statutory obligations, its resultant best interest determination is entitled to deference.” In re B.W., 2022 UT App 131, ¶ 69. Thus, a parent’s mere dissatisfaction “with the manner in which the juvenile court weighed the evidence . . . has no traction on appeal.” In re J.P., 2021 UT App 134, ¶ 23.

¶13      Mother argues that the court’s finding that Brother was upset when she missed visits should weigh against a finding that termination was strictly necessary. She also asserts that the court should have given more weight to her recent history of stopping her inappropriate comments to Brother rather than inferring that she was likely to resume such comments in the future. These arguments ultimately take issue with “the manner in which the juvenile court weighed the evidence” rather than its compliance with its statutory mandate. See id. The court’s findings are entitled to deference, and we will not disturb them on appeal. See In re B.W., 2022 UT App 131, ¶ 69.

¶14      Mother next asserts that the court’s focus on her and Grandmother’s inability to “co-parent” the children was inappropriate and led it to consider the strictly necessary analysis from the adults’ perspective rather than the children’s perspective. See Utah Code § 80-4-301(1) (dictating that the strictly necessary analysis must be undertaken from the child’s point of view). Mother argues that a permanent custody and guardianship order does not result in “co-parenting” but rather involves “the Guardian call[ing] the shots” while “the parent has a handful of residual rights.” We take Mother’s point that co-parenting may not have been quite the right term to use in describing the relationship between a parent and a permanent guardian.[1] However, we are more concerned with the substance of the court’s analysis than the term it used. And that analysis indicates that the court’s true concern was whether it was in the children’s best interests to be pitted between a parent and guardian who could neither cooperate nor communicate with one another.

¶15      “[L]ong-term guardianship arrangements are typically only in a child’s best interest where the guardians and the parent have a working, relatively healthy relationship in which they are both willing to work together to preserve the parent-child relationship and where the child has a healthy relationship with both the guardian and the parent.” In re J.P., 2021 UT App 134, ¶ 22 (quotation simplified). Thus, when a parent and guardian have “little to no relationship,” the particular circumstances of the case may indicate that permanent custody and guardianship will not meet the children’s needs as well as termination of parental rights. See id. That is what the juvenile court found here, and such a finding was not an abuse of its discretion under the circumstances.

¶16      Furthermore, we are not convinced that the juvenile court inappropriately conducted the strictly necessary analysis from the adults’ point of view rather than that of the children. The court explicitly discussed the effect Mother and Grandmother’s inability to cooperate had on the children, finding that being put in the middle of the conflict was “unhealthy” for the children’s “emotional development and wellbeing” and undermined their stability, that the children suffered when Mother did not communicate with Grandmother about missing visits, and that Mother herself acknowledged that the conflict was “unhealthy” for the children. These findings indicate that the court considered the conflict between Mother and Grandmother from the children’s point of view in determining that the conflict made termination of Mother’s rights strictly necessary.

¶17      The juvenile court here carefully considered whether the children could be equally benefited and protected by a permanent custody and guardianship arrangement as opposed to termination of Mother’s parental rights. It also made detailed findings in support of its determination that termination was strictly necessary from the children’s point of view. Accordingly, the juvenile court’s decision to terminate Mother’s parental rights is affirmed.

 

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

[1] Nevertheless, as the guardian ad litem observes, it is not apparent from the record that Mother was “up to the tasks involved with residual parental rights,” given that she has not paid child support, has not respected the boundaries Grandmother has put in place, has not progressed past supervised visitation, and has disappointed the children by failing to communicate about missed visits.

Tags: , , , , , , , , , , , , ,

In Re K.K. – 2023 UT App 14 – Abuse and Neglect Adjudication

In re K.K. – 2023 UT App 14

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF K.K., S.K., AND S.K.,

PERSONS UNDER EIGHTEEN YEARS OF AGE.

B.K.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20220051-CA

Filed February 9, 2023

Second District Juvenile Court, Farmington Department

The Honorable Sharon S. Sipes

No. 1176751

Scott L. Wiggins, Attorney for Appellant

Sean D. Reyes, John M. Peterson, and Candace

Roach, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,

in which JUDGE GREGORY K. ORME concurred. JUDGE RYAN M.

HARRIS concurred, with opinion.

CHRISTIANSEN FORSTER, Judge:

¶1        This is a companion case to and arises out of the same facts involved in In re K.K., 2023 UT App 13, which also issues today. In short,[1] B.K. (Mother) and D.K. (Father) are the parents of triplets K.K., S.K., and S.K. (collectively, the Children). When the Children were six years old, the State filed a petition for custody and guardianship on the grounds that the Children were neglected and abused by Mother and Father. The underlying facts giving rise to the petition were multiple acts of domestic violence, culminating in a physical and boisterous verbal altercation between the couple that occurred on June 22, 2021, and that took place in front of the Children and other witnesses.

¶2        Following an adjudication trial on the petition, during which the juvenile court heard testimony from Mother, Father, two neighbors who had witnessed the June 22 altercation, and two police officers who had responded to the neighbors’ 911 calls regarding the June 22 altercation, the court issued an order adjudicating the Children neglected and abused as to Mother.

¶3        In the adjudication order, the court found, among other things, that Mother and Father had engaged in numerous acts of domestic violence, some of which had occurred in the presence of the Children, including on June 22; that when Mother and Father fight they sometimes send the Children downstairs to wait with a roommate, which had occurred two or three times that year; that the Children are aware they are sent downstairs because Mother and Father fight; that “[a]ccording to the [C]hildren, [Father] and [Mother] fight and yell and hurt each other’s bodies”; and that “[t]he [C]hildren have experienced domestic violence with enough frequency that they appear calm during incidents between their parents . . . even though the parents ‘fight a lot and hurt’ each other.”

¶4        As to Mother, the court found she was not yelling back at Father during the June 22 altercation but that she did yell at him on another occasion during which officers were dispatched to the house on a “domestic” call. In addition, the court found that Mother “is not concerned” that the Children witness her and Father fight and that her “demeanor and testimony”—including her inability to recall much of what happened on June 22—“is in tune with her desire to protect [Father] rather than address the domestic violence that exists in her home.” Based on these findings, the court concluded that Mother “has failed to protect the [C]hildren from exposure to domestic violence in the home” and that “[Father] and [Mother’s] domestic violence in their home has harmed the[] [C]hildren.”

ISSUES AND STANDARDS OF REVIEW

¶5        Mother now appeals the juvenile court’s neglect and abuse adjudications, asserting the court erred in determining that she neglected and abused the Children. We review the juvenile court’s factual findings deferentially, reversing the court’s findings only if they are clearly erroneous. In re E.R., 2021 UT 36, ¶ 15, 496 P.3d 58. A finding is clearly erroneous when the court either “failed to consider all of the facts or reached a decision against the clear weight of the evidence.” Id. ¶ 32 (quotation simplified). And we review the juvenile court’s underlying legal determinations nondeferentially for correctness. See In re A.B., 2022 UT 39, ¶¶ 27–28.

ANALYSIS

¶6        Mother argues the juvenile court erred in determining that the State had proved by clear and convincing evidence that she neglected and abused the Children “by exposing them to domestic violence.” Clear and convincing evidence is an “intermediate standard of proof” that “implies something more than the usual requirement of a preponderance . . . of the evidence; and something less than proof beyond a reasonable doubt.” Essential Botanical Farms, LC v. Kay, 2011 UT 71, ¶¶ 21, 24, 270 P.3d 430 (quotation simplified). “For a matter to be clear and convincing to a particular mind it must at least have reached the point where there remains no serious or substantial doubt as to the correctness of the conclusion.” In re S.Y.T., 2011 UT App 407, ¶ 42, 267 P.3d 930 (quotation simplified).

¶7        Because neglect and abuse are distinct, with different statutory definitions, we address Mother’s challenge to the juvenile court’s adjudications separately. With regard to Mother’s neglect adjudication, we conclude the court did not err in determining that she neglected the Children. As to the court’s abuse adjudication, we conclude that Mother, like Father, cannot show prejudice resulting from the abuse adjudication where the underlying facts giving rise to both adjudications are the same. Accordingly, we decline to address the merits of Mother’s challenge to the abuse adjudication.

I. Neglect

¶8        To prove that Mother neglected the Children, the State needed to present clear and convincing evidence that Mother’s “action[s] or inaction[s]” caused the Children to experience a “lack of proper parental care . . . by reason of the fault or habits of” Mother or that Mother “fail[ed] or refus[ed] . . . to provide proper . . . care necessary for [the Children’s] health, safety, morals, or well-being.” See Utah Code § 80-1-102(58)(a)(ii)–(iii). Mother argues the juvenile court’s conclusion that she neglected the Children by “‘allowing’ them to be exposed to her abuse at Father’s hands” does not satisfy the statutory definition of neglect. She further contends that the court “engaged in unwarranted assumptions that are contrary to the well-settled notions underlying the Battered Woman Syndrome” by concluding that Mother’s “behavior constituted ‘nonaccidental’ conduct or that her behavior was due to her ‘faults or habits.’” We disagree.

¶9        The evidence presented at trial included testimony from six witnesses who detailed Father and Mother’s history of engaging in domestic disputes with each other and specifically described the altercation that occurred on June 22. The testimony indicated that two of the children were present during the June 22 altercation and were observed “clinging” to Mother outside in the front yard while Father argued with her, punched her, and threw objects at her. One of the officers who responded to the June 22 altercation testified that the two children who had witnessed the altercation “seemed calm” and were not “distraught or flustered at all.”[2] The officers acknowledged they had been called to Mother and Father’s house prior to the June 22 altercation on a “domestic” call after neighbors reported Mother and Father were screaming at each other.

¶10 Mother also testified that on many occasions she tried to prevent the Children from observing her and Father fight. To accomplish this, “as soon as any argument started” she would send the Children downstairs with her roommate, where they would wait until the fight was over. Despite making this effort, Mother testified that she believed the Children were aware they were sent downstairs to avoid hearing any fighting. Moreover, the evidence also showed that Mother repeatedly allowed Father to return home after the court issued a criminal no contact/protective order and that she minimized the severity of the domestic violence. Mother was also largely unwilling to testify at trial about the June 22 altercation, claiming that she had “trouble remembering” much of what happened. Based on this evidence, the juvenile court found, “[Mother] is not concerned that the [C]hildren are subjected to the argument[s] between [Mother] and [Father]. [Mother’s] demeanor and testimony is in tune with her desire to protect [Father] rather than address the domestic violence that exists in her home.”

¶11      As described above, in its adjudication order, the juvenile court made several findings in support of its determination of neglect as to Mother. Those findings address Mother’s ongoing relationship with Father and the violent dynamic of their relationship, Mother’s knowledge that the Children were aware of her fights with Father despite her attempts to shield them from the violence, and Mother’s apparent lack of concern or desire to extricate herself from future interactions with Father. Under Utah law, a parent “ha[s] a statutory duty not to knowingly place [their] child in harm’s way.” In re C.B., 1999 UT App 293, ¶ 9, 989 P.2d 76. By voluntarily returning to the abusive relationship with Father, Mother ignored this duty by “potentially subjecting the [Children] to witness, or be the victim of, further abuse.” See id. Moreover, as discussed in In re C.C.W., 2019 UT App 34, 440 P.3d 749, a parent’s act of domestic violence can have adverse impacts on a child, even if there is no evidence of violence toward the child and even if the child does not directly witness the violence. Relying on “both common sense and expert opinion,” this court recognized that children who are exposed to domestic violence may suffer “direct physical and psychological injuries,” regardless of whether they are physically harmed. Id. ¶¶ 20–21 (quotation simplified). Among other things, children who observe domestic violence “may be taught that violence is an acceptable way to handle issues with loved ones,” which “breeds a culture of violence in future generations. . . . Abused children are at great risk of becoming abusive parents.” Id. ¶ 20 (quotation simplified). Although it is unfortunate that Mother is a victim of domestic violence, her decision to knowingly return to Father and to protect him rather than to protect the Children despite her knowledge that the Children are aware of the abuse in the home satisfies the statutory definition of neglect.

¶12      We recognize that most, if not all, of the domestic violence at issue in this case was committed by Father against Mother and that Mother was therefore often the victim rather than the perpetrator. But under Utah’s statutory definition of neglect, under certain circumstances, even victims of domestic violence can “neglect” their children if they fail to take sufficient steps to protect them from the domestic violence present in the home or if they choose to prioritize their relationship with the perpetrator of the violence over the need to protect their children. After all, neglect can stem from either “action or inaction” on the part of a parent, see Utah Code § 80-1-102(58)(a), as long as the “inaction” in question causes either “lack of proper parental care of a child by reason of the fault or habits of the parent” or “failure or refusal of a parent . . . to provide . . . care necessary for the child’s health, safety, morals, or well-being,” see id. § 80-1-102(58)(a)(ii)–(iii). Here, the juvenile court found that Mother was “not concerned” about protecting the Children from domestic violence and that Mother had a “desire to protect [Father] rather than address the domestic violence that exists in her home.” These findings were supported by substantial evidence presented at trial. And these facts, as found by the court, constitute “neglect” as our legislature has defined that term. In short, Mother’s “inaction” in failing to protect the Children from exposure to domestic violence and prioritizing her toxic relationship with Father resulted in a failure to provide the “care necessary for [the Children’s] health, safety, morals, or well-being” and caused the Children to experience a “lack of proper parental care.” See id.

¶13      Mother resists this conclusion by contending the juvenile court improperly relied on In re C.C.W. for “the proposition that children are harmed by domestic violence in the home.” She asserts the court’s reliance on In re C.C.W. was unwarranted because that case concerned a proceeding to terminate parental rights whereas this case concerns abuse and neglect adjudications. While Mother is correct that the two proceedings are different, those differences do not bear on whether the court could properly rely on the research and studies cited in In re C.C.W. supporting the general proposition that domestic violence is harmful to children. See 2019 UT App 34, ¶ 20. Termination proceedings and abuse and neglect adjudications are both governed by the Utah Juvenile Code, see Utah Code § 80-4-301 (termination of parental rights); id. § 80-3-201 (abuse or neglect proceedings), and the statutory definitions of “neglect,” “abuse,” “harm,” and “threatened harm” are the same in both proceedings, see id. § 80­1-102(1), (37), (58)(a), (92) (providing definitions applicable to provisions of Title 80, Utah Juvenile Code). Accordingly, it does not follow that the court may properly consider the effect of domestic violence in finding neglect in one proceeding but not the other.

¶14      In addition, Mother asserts that the juvenile court “rel[ied] on the unfounded presumption that Mother’s decision to maintain a relationship with Father constituted a conscious failure to protect the Children from exposure to domestic violence.” In so doing, Mother posits that the juvenile court ignored the directive offered in In re C.C.W. cautioning courts “to avoid unnecessarily drawing negative inferences from a battered spouse’s decision to maintain a relationship with the batterer, or from a battered spouse’s decision to decline to immediately seek help.” See 2019 UT App 34, ¶ 19 n.4. But that is not what happened here.

¶15      In this case, the juvenile court analyzed the evidence before it in adjudicating Mother for neglect. Thus, the court’s conclusion was not based on an unfounded presumption. As previously discussed, the evidence the court considered included testimony that Father had engaged in multiple acts of domestic violence in the presence of the Children. And based on Father’s multi-year track record of assaulting Mother, even after services were provided to him, the court could reasonably conclude that Father is likely to continue perpetrating acts of domestic violence against Mother in the future and that the Children will continue to be exposed to the violence if Mother fails to take action. In short, the court’s determination that Mother failed to provide the proper care for the Children’s health, safety, morals, or well-being by failing to protect them and prioritizing her relationship with Father was based on the evidence presented at trial and not on an unwarranted presumption.

¶16      Finally, Mother misconstrues the directive offered in In re C.C.W. cautioning courts to “avoid unnecessarily drawing negative inferences from a battered spouse’s decision to maintain a relationship with the batterer.” See id. Mother contends that by adjudicating her for neglect, the juvenile court made an “automatic determination that both the batterer and victim are responsible as a unit,” which in turn results in the victim being blamed for the domestic violence. While we are sympathetic to Mother and acknowledge that extricating oneself from an abusive relationship can often prove difficult, see In re L.M., 2019 UT App 174, ¶ 9, 453 P.3d 651 (per curiam); In re C.C., 2017 UT App 134, ¶¶ 46–48, 402 P.3d 17 (Christiansen, J., concurring), we cannot say that a parent’s status as a domestic violence victim excuses the parent’s duty to protect the children or provides the parent with license to elevate the relationship with the abuser over the safety of the children. Indeed, the directive offered in In re C.C.W. merely cautions courts to “avoid unnecessarily drawing negative inferences” about a victim’s decision to stay in an abusive relationship. 2019 UT App 34, ¶ 19 n.4. It does not prevent the court from considering domestic violence issues in their entirety, nor does it provide absolution for a parent who continues to expose a child to domestic violence. To find otherwise would be contrary to precedent. See, e.g.In re L.M., 2019 UT App 174, ¶ 8 (“A parent who maintains a relationship with an abusive partner jeopardizes a child’s safety.”); In re T.M., 2006 UT App 435, ¶ 20, 147 P.3d 529 (collecting cases and observing that “Utah case law indicates that courts have minimal empathy for parents whose strong emotional ties to their spouses or significant others jeopardize their children’s safety”).

¶17      Accordingly, we affirm the court’s neglect adjudication.

II. Abuse

¶18      The juvenile court determined that Mother both neglected and abused the Children by failing to protect them from exposure to domestic violence and that Father and Mother’s “domestic violence in their home has harmed the[] [C]hildren.” Mother argues the court’s abuse adjudication was in error because the State failed to produce clear and convincing evidence of abuse as it is statutorily defined. See Utah Code § 80-1-102(1)(a)(i)(A)–(B), (37)(a)–(b) (defining abuse as including “nonaccidental harm of a child” and “threatened harm of a child” and defining harm as “physical or developmental injury or damage” and “emotional damage that results in a serious impairment in the child’s growth, development, behavior, or psychological functioning”). Mother raises a fair point that other than applying the general principles set forth in In re C.C.W. to infer harm, the State did not present specific evidence that the Children had sustained harm, and the court made no specific findings—other than that the Children appeared calm during incidents of domestic violence between their parents—that the Children were developmentally harmed or suffered the sort of emotional damage that constituted serious impairment to their growth, development, behavior, or psychological functioning.[3]

¶19      But even if we were to agree with Mother that the juvenile court erred in adjudicating the Children as abused as to Mother, Mother cannot show she was prejudiced by any such error. See In re N.M., 2018 UT App 141, ¶ 27, 427 P.3d 1239 (“An error is prejudicial only if a review of the record persuades the appellate court that without the error there was a reasonable likelihood of a more favorable result for the appellant.” (quotation simplified)); In re. J.B., 2002 UT App 268, ¶¶ 8–12, 53 P.3d 968 (affirming the termination of a father’s parental rights despite the juvenile court’s reliance on improper findings because such reliance did not result in “prejudicial error”). Mother claims that being labeled an abuser “negatively affect[s] her ability—going forward—to perform the primary caretaking responsibilities to [the] Children.” But Mother does not demonstrate how the court’s abuse adjudication will affect her more severely or more negatively as this case proceeds than the neglect adjudication will. See In re G.B., 2022 UT App 98, ¶ 34, 516 P.3d 781 (declining to reach the merits of a challenge to an abuse adjudication where the parent did not challenge a neglect adjudication based on the same facts because the parent did not demonstrate that the abuse adjudication carried “some collateral consequences . . . that [did] not follow from a neglect determination”). Indeed, post-adjudication dispositions turn on the factual circumstances that bring a family into court rather than on the category of adjudication and are implemented based on concern for the child’s health and safety and remedying the underlying issues resulting in the adjudication. See Utah Code § 80-3-405. Here, as found by the juvenile court, whether her inaction is labeled as abuse or neglect, Mother failed to protect the Children from exposure to domestic violence and prioritized her relationship with Father over the well-being of the Children. The services that will be offered to Mother and the Children to remedy these circumstances are not likely to differ based on whether the adjudication is for neglect or abuse. We agree with the guardian ad litem’s assertion that “any or all three categories of adjudication (abuse, neglect, dependency) trigger the same dispositional provisions.” Accordingly, because Mother has not demonstrated how the court’s abuse adjudication will affect her any differently than the neglect adjudication, she cannot show prejudice.[4] See In re K.K., 2023 UT App 13, ¶ 28 (concluding, based on the same facts as the current case, that Father could not show prejudice stemming from the court’s abuse adjudication because the abuse adjudication was based on the same underlying facts supporting the neglect adjudication).

CONCLUSION

¶20 We are cognizant that Mother is a victim of domestic violence, not a perpetrator. Nevertheless, the primary purpose of the State’s petition alleging neglect was to protect the Children, not to punish Mother. Based on the foregoing, we conclude the evidence presented by the State was sufficient to support the juvenile court’s neglect adjudication as to Mother. And even if the juvenile court erred in its abuse adjudication, Mother has not persuaded us that she was prejudiced by any such error because she has not shown how she will be negatively affected by the abuse adjudication over and above the effect of her neglect adjudication. Accordingly, we affirm.

_____________

HARRIS, Judge (concurring):

¶21      I concur fully in the majority opinion. I write separately to offer a word of caution to juvenile courts when it comes to finding that a parent who is a victim of domestic violence has “abused” or “neglected” his or her children by allowing them to be exposed to domestic violence in the home. In my view, Utah’s statutory definitions of the terms “abuse” and “neglect” are broad enough to make it possible, in certain situations, for courts to determine that a domestic violence victim has committed abuse or neglect. But courts should exercise caution in doing so, and should make these rather striking findings only in appropriate cases.

¶22 With regard to neglect, we hold today that the juvenile court’s determination was appropriate in this case, because Mother’s “inaction” in failing to protect the Children from the domestic violence occurring in the home constituted a lack of proper parental care, as well as a failure to provide care necessary for the Children’s health, safety, or well-being. See supra ¶¶ 8–16; see also Utah Code Ann. § 80-1-102(58)(a)(ii)–(iii) (LexisNexis Supp. 2022). In my view, the key to affirming this determination, in this case, was the court’s finding that Mother had prioritized her relationship with her abuser over the safety and well-being of the Children. Evidence presented at trial indicated that Mother repeatedly allowed Father to return to the home despite the existence of protective orders making it unlawful for him to be there, and that she was less than fully cooperative with DCFS and law enforcement officials who were investigating the situation. This sort of evidence, to my way of thinking, is critical to any determination that a domestic violence victim has neglected his or her children. Absent evidence like this, domestic violence victims will likely not have committed actions or inactions significant enough to constitute “neglect” of their children.

¶23      And given the differing statutory definitions, it is even more difficult for domestic violence victims to be considered to have “abused” their children than it is for them to be considered to have “neglected” their children. The statutory definition of “abuse” is (justifiably) narrower than the statutory definition of “neglect.” In order to find that abuse has occurred, a court in most cases (that is, in cases not involving sexual exploitation, sexual abuse, human trafficking, or the child’s death) must find either (a) “nonaccidental harm of a child” or (b) “threatened harm of a child.” See id. § 80-1-102(1)(a)(i)(A), (B); see also In re K.T., 2017 UT 44, ¶ 9, 424 P.3d 91 (“To find abuse under Utah law, a court must find harm.”).

¶24 A finding that a child has sustained nonaccidental harm involves a backward-looking determination, one that must be supported by evidence that the child has already been harmed. And the kind of harm at issue—according to strict statutory definition—must be either “physical or developmental injury or damage” or the sort of “emotional damage that results in a serious impairment in the child’s growth, development, behavior, or psychological functioning.” See id. § 80-1-102(37)(a), (b). I can envision a court, in many cases, being able to make a finding of physical harm without the necessity of expert testimony, but in my view a finding of already-sustained “developmental injury or damage” or emotional damage severe enough to cause “a serious impairment in the child’s growth, development, behavior, or psychological functioning” will often require expert testimony. I think this will nearly always be the case where the question presented is whether a child has already sustained non-physical “harm” as a result of a victim parent failing to protect the child from violence in the home.

¶25      A finding that a child has sustained “threatened harm” is— by contrast—more of a forward-looking inquiry, under the applicable statutory definition. As our legislature has defined it in this context, “threatened harm means actions, inactions, or credible verbal threats, indicating that the child is at an unreasonable risk of harm or neglect.” See Utah Code Ann. § 80-1­102(92) (emphasis added). A child can sustain “threatened harm” even if the child has not yet sustained actual “harm.” Pursuant to statutory definition, a child sustains “threatened harm” when, through the “actions” or “inactions” of a parent, the child is placed at “unreasonable risk” of future “developmental injury or damage” or “emotional damage” severe enough to seriously impair the “child’s growth, development, behavior, or psychological functioning.” See id. § 80-1-102(37)(a)–(b), 102(92). In cases involving parents who are victims of domestic violence, a juvenile court could perhaps more easily make a finding of “threatened harm” than already-sustained past harm. Indeed, we have already recognized that “domestic violence can have adverse impacts on a child, even if that child is not the direct object of such violence, and even if the child does not directly witness the violence.” See In re C.C.W., 2019 UT App 34, ¶ 20, 440 P.3d 749. A parent victim’s failure to adequately protect a child from violence in the home could—if the violence was frequent and severe enough, and likely to continue in the future—lead to a supported finding that the parent, through inaction, has placed the child at an unreasonable risk of future developmental damage. It may even be possible, in appropriate cases, for such a finding to be made without expert testimony.

¶26      But in order to reach “abuse” through “threatened harm” in cases involving victims of domestic violence, a court must make specific and supported findings regarding each of the elements of the statutory definition. First, a court must specify that it is finding “abuse” by way of “threatened harm” (as opposed to through a finding of already-sustained “nonaccidental harm”). Second, the court must make a detailed finding of threatened harm on the facts of the case at hand, including specific identification of the “action or inaction” taken by the parent that leads to the “unreasonable risk” of future harm, as well as a satisfactory explanation of why the risk of future harm is “unreasonable.” Third, the court must specify the type of future harm it believes the child is at risk of sustaining, whether it be developmental injury or severe emotional damage, and should explain—with reference to specific evidence in the record—why the court believes the child is likely to sustain that particular type of harm.

¶27 In short, Utah’s statutory definitions of “neglect” and “abuse” are broad enough to allow courts, in appropriate cases, to find that a parent who is the victim of domestic violence has committed neglect or abuse by failing to protect his or her child from domestic violence in the home. But courts should exercise caution in so doing, and should reserve such findings for those cases in which the domestic violence is severe and sustained and in which the victim parent has taken specific actions or inactions aimed at prioritizing his or her relationship with the abuser over care and protection of the children.

¶28      In this case, I concur in the majority’s view that the court made appropriate findings of neglect with regard to Mother. I also concur in the majority’s decision not to reach the merits of the propriety of the court’s findings regarding abuse as to Mother, but I register serious reservations about the adequacy and sufficiency of those findings, and urge courts to exercise caution in making neglect and abuse determinations in situations like this one.

 

______________

[1] A more fulsome description of the relevant facts and procedural history can be found in In re K.K., 2023 UT App 13, the case in which we adjudicated Father’s appeal. In this case, we adjudicate Mother’s appeal.

[2] The juvenile court did not take this evidence to mean that the Children had not been adversely affected by their parents’ inappropriate behavior. Rather, the inference drawn by the court was that the parental conflict had been so pervasive that the Children had become somewhat numb to it.

[3] We do not intend to suggest the State could never demonstrate that a parent who is the victim of domestic violence has “abused” his or her children, as that term is statutorily defined. We agree with the general sentiments expressed in the concurring opinion that such a path is possible but is more difficult than demonstrating “neglect” and would require specific evidence and findings. See infra ¶¶ 22–27.

[4] In fact, a review of the underlying docket in Mother’s case reveals that Mother and the Children have done so well in their treatment and services that the juvenile court released the Children from DCFS’s protective supervision and terminated the court’s jurisdiction last fall.

Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

In re K.K. – 2023 UT App 13

In re K.K. – 2023 UT App 13

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF K.K., S.K., AND S.K.,

PERSONS UNDER EIGHTEEN YEARS OF AGE.

D.K.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20220050-CA

Filed February 9, 2023

Second District Juvenile Court, Farmington Department

The Honorable Sharon S. Sipes

No. 1176751

Freyja Johnson, Emily Adams, and Hannah K.

Leavitt-Howell, Attorneys for Appellant

Sean D. Reyes, John M. Peterson, and Candace

Roach, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

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

concurred.

CHRISTIANSEN FORSTER, Judge:

¶1        D.K. (Father) and B.K. (Mother) are the parents of triplets K.K., S.K., and S.K. (collectively, the Children). When the Children were six years old, the State filed a child welfare petition for custody and guardianship on the grounds that the Children were neglected and abused by Father and Mother. Following an adjudication hearing on the petition, the juvenile court issued an order adjudicating the Children as neglected and abused.

¶2        Father now appeals the juvenile court’s abuse adjudication, arguing that the State failed to prove by clear and convincing evidence that he abused the Children. We affirm.

BACKGROUND

¶3        In 2019, when the Children were four years old, the State filed a petition seeking protective supervision services based on allegations that Father and Mother had engaged in repeated acts of domestic violence in front of the Children. Thereafter, Father and Mother agreed to engage in services voluntarily, and the State eventually dismissed its petition.

¶4        Two years later, however, Father and Mother again engaged in a series of domestic violence incidents that involved law enforcement. In May 2021, Father called the police and told them that Mother had “beat him up.” When officers arrived on scene and talked to Father, he told them he and Mother were “fighting about money” and that Mother “swung to hit him but never touched him.” On June 10, officers were again dispatched to the family home on a “domestic” call because Father and Mother were “screaming at each other with the [C]hildren in the home.” When officers arrived, they could hear the screaming. Father was uncooperative with the officers, but he eventually left the home. However, Father returned to the home later that same night.

¶5        On June 22, Father and Mother were involved in an altercation that led the State to seek custody and guardianship of the Children. During this altercation, Father and Mother were arguing inside the home. Mother was sitting on the couch, and Father sat on top of her demanding that she give him the keys to the car. Father then “head butted” Mother and told her to get out of the home, which she did. Once Mother was outside, Father followed her and began punching her “with a closed fist on the side of her stomach.” Father proceeded to grab a large rock and chase Mother around the car, “acting like he was going to throw the rock at her.” The Children were outside of the home for the duration of the altercation and witnessed Father chasing Mother and hitting her. Several neighbors also witnessed the altercation and called the police. When officers arrived, Father was arrested and taken to jail.

¶6        After Father’s arrest, Mother completed a lethality assessment, an evaluation given to assess the level of danger an abused person faces, which resulted in a score of high risk. Mother did not seek a protective order for herself or for the Children during the eight days Father was in jail. However, due to the severity of the prior altercation, the district court entered a criminal no contact/protective order on July 1. The order prohibited Father from residing with Mother and the Children.

¶7        On July 8, a caseworker from the Department of Child and Family Services (DCFS) went to the home for an unannounced visit. During the visit, the caseworker found Father outside; Father reported that Mother was inside sleeping. Father allowed the caseworker to interview the Children. During the interview, the Children reported that Father and Mother “fight and yell” and “hurt each other’s bodies.” Father was subsequently arrested for violation of the criminal no contact/protective order. Thereafter, the caseworker attempted to talk to Mother, who had been inside sleeping, but Mother refused to speak with the caseworker.

¶8        Based on the foregoing, the State filed a petition for custody and guardianship of the Children on the grounds that they were neglected and abused based on Father and Mother engaging in domestic violence in the home. Following a shelter hearing, the juvenile court determined the Children should remain in Mother’s custody for the time being but ordered Mother and the Children to have “absolutely no contact” with Father and that Mother “immediately notify law enforcement” if Father appeared at the home.

¶9        Following a series of pretrial hearings, the matter proceeded to an adjudication trial in December 2021. At trial, the State presented the testimony of six witnesses: Mother, Father, two neighbors who had witnessed the June 22 altercation, and two police officers who had responded to the neighbors’ 911 calls regarding the June 22 altercation.

¶10 According to the neighbors, Father and Mother were arguing about car keys. As Father approached Mother, “she put her arms out to stop him . . . and he slapped her hands aside.” Father then began punching Mother “haymaker style” to her side and stomach. The punching continued “for a minute or two,” and Father connected “five to ten” times. After the punching stopped, Father chased Mother around the front yard, “throwing rocks” and “bikes and other toys” in the direction of Mother, although the neighbors did not see any of the objects hit Mother.

¶11      The neighbors testified that during the altercation, two of the Children were in the front yard “standing behind [Mother]” and “clinging” to her. Mother was positioned between Father and the two children, acting as a “buffer” between them. One neighbor opined that he did not “believe any [of Father’s] aggression was towards the children,” and that “at no[] point did [he] think [the two children] were in any sort of danger.” However, the two children were outside the entire time, “seeing everything.”

¶12      In addition, one neighbor testified that she had witnessed Father and Mother “screaming” at each other multiple times in the presence of the Children prior to the June 22 altercation. Moreover, the neighbor had witnessed Father yelling at the Children twice and had observed that the Children “are terrified and trying to do whatever [Father] says to not be in trouble.”

¶13      The responding officers testified next. One officer testified that after arriving at the scene on June 22, he interviewed Mother, who told him that she had been arguing with Father over car keys. During the argument, Father “sat down on her” to keep her from leaving, headbutted her in the forehead, and “punched her in the back of the leg.” After Mother jumped out the window to the front yard, Father followed her and the two continued arguing. Father chased Mother around a vehicle parked in the front yard; once he caught her, he began “punching her in the side underneath her arms with a closed fist.” Mother was able to break away, but Father chased her with a rock in his hands. Mother told the officer the Children were outside with her during the altercation.

¶14      The officer also interviewed Father about the altercation. Father said he was “upset” because Mother hid the car keys from him but that “nothing got physical.” Father told the officer he and Mother had argued and run around the vehicle in the front yard. Father indicated that he had picked up a rock and held it over his head, but he did not throw it, nor did he intend to.

¶15      Lastly, the officer testified regarding his observations of the Children. When the officer arrived at the scene, the Children were inside the house. The officer interviewed Mother while she was standing at the front door. During the interview, the officer saw “at least two” of the Children standing by the front door behind Mother and “one of the kids popped his head outside” and asked for stickers. Officer opined that the Children’s demeanor “seemed calm.” The Children seemed “a little upset that some toys were . . . strewn about the front yard,” but otherwise they did not seem “distraught or flustered” by the altercation.

¶16      Mother testified that the June 22 incident started when she refused to give Father the keys to the car. Mother explained that she could not remember all the details about the altercation because she has “trouble remembering things.” However, she did remember that the altercation began when Father headbutted her in the house. After the headbutt, Father and Mother went outside to the front yard. Although Mother did not remember whether Father hit her in the yard, she recalled that he “didn’t follow [her] around the yard,” that he picked up a basket and “threw it up in the air” but not “at” her, and that he “picked up a rock” but did not chase her while holding it. Mother maintained that the Children had not observed the altercation because they were downstairs inside the house with a roommate where they stayed until the officers arrived.

¶17      Mother also testified that the Children “were never present for full on arguments or yelling.” She explained that “as soon as any argument started,” her roommate would take the Children downstairs so they would not be able to hear the fighting. Although Mother did not believe the Children had been impacted by the fighting, she did believe the Children were aware that they were sent downstairs to avoid hearing any fighting.

¶18 Father testified last. When asked about the June 22 altercation he invoked his Fifth Amendment right not to testify because criminal charges were pending against him regarding that incident. But Father explained that “before” he and Mother would engage in any verbal arguments, the Children would go downstairs.

¶19      After considering all the evidence, the juvenile court issued an adjudication order. In the order the court found, among other things, that Father and Mother had engaged in numerous acts of domestic violence, some of which had occurred in the presence of the Children, including the one on June 22; that when Father and Mother fight they sometimes send the Children downstairs to wait with a roommate, which had occurred two or three times that year; that the Children are aware that they are sent downstairs because Father and Mother fight; that “[a]ccording to the [C]hildren, [Father] and [Mother] fight and yell and hurt each other’s bodies”; and that “[t]he [C]hildren have experienced domestic violence with enough frequency that they appear calm during incidents between their parents . . . even though the parents ‘fight a lot and hurt’ each other.”

¶20 As to Father, the court drew a number of adverse inferences based on his decision to invoke his constitutional right to silence when asked specific questions about the June 22 altercation. And as to Mother, the court found that she “is not concerned” about the Children witnessing her and Father fighting and that her “demeanor and testimony”—including her inability to recall much of what happened on June 22—“is in tune with her desire to protect [Father] rather than address the domestic violence that exists in her home.” Based on these findings, the court concluded that Father “failed to provide proper care necessary for the health, safety, morals and well-being of the children in that he has engaged in domestic violence with [Mother], and [both Father and Mother] failed to protect the [C]hildren from exposure to domestic violence in the home.” The court also concluded that “[Father] and [Mother’s] domestic violence in their home has harmed [the Children]” and, accordingly, adjudicated the Children as neglected and abused as to Father.

ISSUE AND STANDARD OF REVIEW

¶21 Father now appeals only the juvenile court’s abuse adjudication, arguing that the court’s ruling was in error because the State failed to prove by clear and convincing evidence that he had harmed or threatened harm to the Children. “We apply differing standards of review to findings of fact, conclusions of law, and determinations of mixed questions of law and fact.” In re E.R., 2021 UT 36, ¶ 14, 496 P.3d 58. We review the juvenile court’s factual findings deferentially, reversing the court’s findings only if they are clearly erroneous. Id. ¶ 15. A finding is clearly erroneous when the court either “failed to consider all of the facts or reached a decision against the clear weight of the evidence.” Id. ¶ 32 (quotation simplified). However, the question of whether the juvenile court properly applied the governing law to the facts of the case presents “a law-like mixed question subject to nondeferential review.” In re A.B., 2022 UT 39, ¶ 27.

ANALYSIS

¶22      At an adjudication trial, the juvenile court must determine whether “the allegations contained in the abuse, neglect, or dependency petition are true” by “clear and convincing evidence.” Utah Code § 80-3-402(1). Clear and convincing evidence is an “intermediate standard of proof” that “implies something more than the usual requirement of a preponderance . . . of the evidence; and something less than proof beyond a reasonable doubt.” Essential Botanical Farms, LC v. Kay, 2011 UT 71, ¶¶ 21, 24, 270 P.3d 430 (quotation simplified). Put differently, this standard requires “the existence of facts that make a conclusion very highly probable.” Id. ¶ 24 (quotation simplified).

¶23      As relevant here, “abuse” is defined as the “nonaccidental harm of a child” or the “threatened harm of a child.” Utah Code § 80-1-102(1)(a)(i)(A), (B). Thus, “[t]o find abuse under Utah law, a court must find harm.” In re K.T., 2017 UT 44, ¶ 9, 424 P.3d 91. “Harm” includes “physical or developmental injury or damage” and “emotional damage that results in a serious impairment in the child’s growth, development, behavior, or psychological functioning.” Utah Code § 80-1-102(37)(a), (b). And “[t]hreatened harm” is defined as “actions, inactions, or credible verbal threats, indicating that the child is at an unreasonable risk of harm or neglect.” Id. § 80-1-102(92).

¶24      As applied to this case, to satisfy the clear and convincing standard, the State “needed to present evidence that would allow the [juvenile] court to conclude that it was very highly probable that the [C]hildren had been harmed.” See In re K.T., 2017 UT 44, ¶ 9 n.3 (quotation simplified). In reaching this conclusion the court may properly “infer harm” based on the evidence presented. Id. ¶ 14. However, the court may not “speculate” about the existence of harm absent clear and convincing evidence demonstrating the actions actually resulted in harm. Id. ¶¶ 14–17.

¶25 After considering the evidence presented during the adjudication trial, the juvenile court concluded the Children were abused because “[Father] and [Mother’s] domestic violence in their home has harmed [the Children].” Father argues the court’s conclusion was in error because the State failed to produce clear and convincing evidence that he physically harmed the Children or that the Children were developmentally harmed or emotionally damaged by observing Father assault Mother and Father and Mother argue. But even if we were to agree with Father that the State failed to present sufficient evidence that Father harmed the Children and were to agree that the juvenile court erred in adjudicating Father as abusing the Children, Father has not demonstrated that he was prejudiced by the alleged error. See In re N.M., 2018 UT App 141, ¶ 27, 427 P.3d 1239 (“An error is prejudicial only if a review of the record persuades the appellate court that without the error there was a reasonable likelihood of a more favorable result for the appellant.” (quotation simplified)); In re. J.B., 2002 UT App 268, ¶¶ 8–12, 53 P.3d 968 (affirming the termination of a father’s parental rights despite the juvenile court’s reliance on improper findings because such reliance did not result in “prejudicial error”). As noted above, the court adjudicated the Children as both neglected and abused, and Father appeals only the court’s abuse adjudication. Although Father is correct that “[a]buse and neglect are statutorily defined and given ‘distinct statuses’” and that “[u]nder the statutory definitions . . . abuse requires a higher level of improper conduct from a parent than neglect,” that distinction has no bearing in this case—and Father has not shown that it is likely to have any bearing in the future—because the court’s adjudications of neglect and abuse were based on the same underlying incidents of domestic violence.

¶26 When a juvenile court adjudicates a child as either neglected or abused, that determination brings the child within the jurisdiction of the court and allows the court to enter dispositional orders. See Utah Code § 80-3-402. The dispositions available to the court do not hinge on whether the child was adjudicated as neglected or abused. Instead, dispositions are tied to the factual findings about what is going on in the case and are implemented based on concern for the child’s health and safety and remedying the underlying issues resulting in the adjudication. See id. § 80-3-405.

¶27 Here, the juvenile court’s disposition is governed by the need to address Father’s commission of domestic violence in the presence of the Children and the risk such behavior will continue. Services to address this behavior will not differ whether the underlying adjudication is labeled as neglect or abuse because the court’s neglect determination was based on the same underlying facts as the abuse determination: here, Father’s failure to protect and to provide proper care for the Children as a result of his engaging in acts of domestic violence.[1]

¶28      Father cites this court’s decision in In re C.M.R., 2020 UT App 114, 473 P.3d 184, for the proposition that Father was harmed by the court’s abuse adjudication, asserting that the findings of abuse in the adjudication order “will form the basis for whether [Father] is able to comply with the requirements of [any service plan] going forward and whether [Father] can be reunited with the Children.” See id. ¶ 28. But unlike the mother in In re C.M.R., who was potentially prejudiced by entering admissions to allegations regarding a specific additional incident of abuse at the adjudication hearing, Father’s abuse adjudication was based on the exact same underlying set of facts as his neglect adjudication. In this case, Father has not challenged the juvenile court’s neglect adjudication, nor has he challenged the court’s underlying factual findings—which support both the neglect and the abuse adjudications—that he assaulted Mother in the presence of the Children and repeatedly engaged in heated verbal arguments with her. Those underlying actions, which form the foundation for both adjudications, are the reason why he “can only have supervised visitation with [the] Children” and why “[h]e is not allowed in the home,” and not because the court adjudicated the Children as abused in addition to neglected. Because Father has not challenged the neglect adjudication or demonstrated how the ramifications flowing from this unchallenged adjudication would be less severe than those resulting from an abuse adjudication, he has not demonstrated that he has sustained any prejudice as a result of the court’s abuse adjudication.[2] See In re G.B., 2022 UT App 98, ¶ 34, 516 P.3d 781 (declining to reach the merits of a challenge to an abuse adjudication where the parent did not challenge a neglect adjudication based on the same facts because the parent did not demonstrate that the abuse adjudication carried “some collateral consequences . . . that [did] not follow from a neglect determination”).

 

CONCLUSION

¶29 On appeal, Father does not challenge the juvenile court’s findings that he committed domestic violence in the presence of the Children or that those actions resulted in him neglecting the Children by failing to provide them proper care and to protect them from exposure to domestic violence. Under these circumstances, even if the juvenile court erred in its separate abuse adjudication—a conclusion we stop short of reaching—Father has not demonstrated he was prejudiced by any such error because he has not challenged the court’s neglect adjudication or the facts underlying it, which are the same facts underlying the court’s abuse adjudication, and any court-ordered disposition will be based upon Father’s own acts and not the adjudication of abuse.

¶30 Affirmed.

______________

[1] In his reply brief Father argues he was harmed by the juvenile court’s abuse adjudication because “an abuse adjudication goes into a central abuse registry system managed by DCFS” and “the information in that registry is used for licensing purposes and prevents individuals who have been adjudicated of abuse from holding licenses in certain professions.” But this argument misses the mark. While Father correctly notes that the abuse registry system—called the Management Information System (the MIS)— can be accessed by the State for all future cases involving Father, see Utah Code § 80-2-1001, he conflates the MIS with a “sub-part” of the MIS called the Licensing Information System (the LIS), see id. § 80-2-1002(1)(a)(i). Information on the MIS includes facts relevant to each child welfare case, whereas the LIS is maintained for “licensing purposes.” See id. § 80-2-1002(1)(a)(i). Although an individual on the LIS may be prohibited from, among other things, holding licenses in certain professions, see id. § 80-2-708(2)(a)(v), inclusion on the LIS is not automatic in every child welfare case. Rather, the LIS identifies only individuals found to have committed a “severe type of child abuse or neglect.” See id. § 80-2-708(1). Because the court did not adjudicate Father as severely abusing the Children, inclusion on the LIS does not automatically follow, and Father has not asserted that he has been—or is likely to be—included therein. Accordingly, Father has not demonstrated that, in this case, he has sustained any prejudice as a result of the juvenile court’s abuse determination.

[2] Indeed, in the juvenile court’s dispositional order, entered approximately two months after the adjudication order, Father’s primary responsibility is to “complete a domestic violence/mental health assessment . . . and follow any and all of the recommendations made.”

Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

In Re K.T. 2023 UT App 5 – Substantiation of Child Abuse

2023 UT App 5

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF K.T.,

A PERSON UNDER EIGHTEEN YEARS OF AGE.

J.K., Appellant, v. STATE OF UTAH, Appellee.

Opinion

No. 20210553-CA

Filed January 20, 2023

Third District Juvenile Court, Summit Department

The Honorable Elizabeth M. Knight No. 1190244

Gregory W. Stevens, Attorney for Appellant

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

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

CHRISTIANSEN FORSTER, Judge:

¶1 Appellant J.K. (Mother) appeals the juvenile court’s order substantiating several database findings of abuse entered by the Division of Child and Family Services (DCFS). We affirm.

BACKGROUND

¶2      In August 2020, the State filed with the juvenile court a Verified Petition for Protective Supervision requesting the court to find Mother’s son, K.T., “abused, neglected and/or dependent and to grant protective supervision of [K.T.] to DCFS.” The petition alleged that DCFS had on three separate occasions previously supported findings of abuse of K.T. against Mother.[1] In addition to the request for protective supervision of K.T., the petition requested that the juvenile court enter an order “[s]ubstantiating[2] the DCFS supported finding(s) pursuant to Utah Code Ann. § 78A-6-323,” now recodified at Utah Code section 80-3-404.[3]

¶3 In March 2021, following discussions with Mother, the State filed with the juvenile court an Amended Verified Petition for Protective Supervision. The amended petition again asked the court to find K.T. “neglected and/or dependent and to grant protective supervision of [K.T.] to DCFS,” but it eliminated the prior request that the court find K.T. to be “abused.” The amended petition repeated the original petition’s request that the court enter a finding “[s]ubstantiating the DCFS supported finding(s) pursuant to Utah Code” section 80-3-404.

¶4 The parties thereafter appeared before the juvenile court to adjudicate the amended petition. At the outset of the hearing, the State indicated it had reached an agreement with Mother to submit the amended petition “for [a] finding of neglect” and requested, without objection, that “the issue of substantiating the DCFS supported findings” be “set over.” Thereafter, Mother admitted many of the allegations of the amended petition. But pursuant to rule 34(e) of the Utah Rules of Juvenile Procedure, she declined to either admit or deny the allegations that DCFS had previously supported findings of abuse by Mother against K.T.[4] The parties then presented argument. The State argued for a finding of neglect, while Mother argued for a finding of dependency. After the hearing, the court entered a finding of neglect[5] and granted “[p]rotective supervision of [K.T.] . . . to DCFS.”[6] The court “reserve[d] the issue of substantiating the DCFS supported findings for the next hearing.”

¶5 In June 2021, the case came before the juvenile court for a disposition hearing, during which the State requested that the court address the substantiation issue. The court entertained argument and took the matter under advisement. It thereafter entered a written order substantiating the three DCFS supported findings of abuse by Mother contained in both the original and amended petitions. Specifically, it substantiated the supported findings that K.T. had suffered emotional abuse, physical abuse, and chronic emotional abuse.

ISSUES AND STANDARDS OF REVIEW

¶6 Mother now appeals the juvenile court’s order substantiating the DCFS supported findings of abuse and raises three issues for our review. The first two issues present questions as to the statutory authority of the juvenile court. Mother first argues the juvenile court exceeded its statutory authority to substantiate the DCFS findings of abuse because the amended petition alleged only neglect or dependency and the court had adjudicated only a finding of neglect. “Questions of jurisdiction and statutory interpretation are questions of law that we review for correctness, giving no particular deference to lower court decisions.” In re B.B.G., 2007 UT App 149, ¶ 4, 160 P.3d 9.

¶7 In a similar vein, Mother next argues the State and the juvenile court were bound by the stipulation of the parties to submit the amended petition only for “a finding of neglect.” When “the facts [are] stipulated, we review the conclusions drawn by the juvenile court for correctness.” In re B.T., 2009 UT App 182, ¶ 5, 214 P.3d 881 (quotation simplified).

¶8 Lastly, Mother alternatively argues her trial counsel was ineffective for not advising her that the juvenile court could deviate from its legal adjudication of neglect and later substantiate for abuse. “An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law.” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162.

ANALYSIS

I.

¶9 We turn first to Mother’s argument that the juvenile court exceeded its statutory authority in substantiating the DCFS findings for abuse because the amended petition alleged only neglect or dependency and the court had adjudicated K.T. as neglected. We are unpersuaded by this argument because it conflates the State’s request that the court adjudicate K.T. as neglected with its independent request that the court substantiate the DCFS supported findings of abuse. The State’s request to adjudicate K.T. as neglected so as to bring the child within the jurisdiction of the court and under the protective supervision of DCFS was separate from its request that the court substantiate DCFS’s finding that K.T. had suffered a severe type of child abuse. As explained below, the juvenile court had independent statutory authority to adjudicate both issues.

¶10 In Utah, proceedings concerning abuse, neglect, and dependency are governed by Chapter 3 of the Utah Juvenile Code (the UJC). Pursuant to Chapter 3, “any interested person may file an abuse, neglect, or dependency petition” in the juvenile court. Utah Code Ann. § 80-3-201(1) (LexisNexis Supp. 2022). Among other things, the petition must include “a concise statement of facts, separately stated, to support the conclusion that the child upon whose behalf the abuse, neglect, or dependency petition is brought is abused, neglected, or dependent.” Id. § 80-3-201(4)(a). After the petition is filed, the court may, upon making specific findings, “order that the child be removed from the child’s home or otherwise taken into protective custody.” Id. § 80-3-204(2). If the court so orders, a shelter hearing must then be held to determine whether continued removal and placement of the child in DCFS’s temporary custody are necessary. See id. § 80-3-301.

¶11 After the shelter hearing, the juvenile court conducts an adjudication hearing. See id. § 80-3-401. An adjudication is a determination of the merits of the State’s petition of abuse, neglect, or dependency. “If, at the adjudication hearing, the juvenile court finds, by clear and convincing evidence, that the allegations contained in the abuse, neglect, or dependency petition are true, the juvenile court shall conduct a dispositional hearing.” Id. § 80-3-402(1); see also In re S.A.K., 2003 UT App 87, ¶ 14, 67 P.3d 1037 (“In child welfare proceedings, if the petition’s allegations of neglect, abuse, or dependency are found to be true in the adjudication hearing, those findings provide the basis for determining the consequences in the disposition hearing.”). “The dispositional hearing may be held on the same date as the adjudication hearing . . . .” Utah Code Ann. § 80-3-402(2). Dispositions available after adjudication include, among other things, vesting custody of an abused, neglected, or dependent minor in DCFS or any other appropriate person. Id. § 80-3405(2)(a)(i). Thus, an adjudication of abuse, neglect, or dependency brings the child and family within the juvenile court’s jurisdiction.

¶12 A separate chapter of the UJC addresses child welfare services. Chapter 2 creates DCFS and establishes its statutory authority and responsibilities. Among these is its responsibility to investigate reports that a child is abused, neglected, or dependent and to enter findings at the conclusion of its investigations. See id. § 80-2-701. A “supported” finding by DCFS is based on evidence available at the completion of an investigation indicating that “there is a reasonable basis to conclude that abuse, neglect, or dependency occurred.” Id. § 80-1-102(89). Chapter 2 requires that DCFS notify alleged perpetrators of supported findings and establishes a procedure for challenging such findings. Id. §§ 80-2707, -708. In cases involving a supported finding of a severe type of child abuse, the statute also gives DCFS authority to file a petition in the juvenile court seeking substantiation of a supported finding. Id. § 80-2-708(1)(c).

¶13 Part 10 of Chapter 2 governs DCFS’s record-keeping responsibilities. DCFS uses a database known as the Management Information System to track child welfare and protective services cases. See id. § 80-2-1001(3), (4). DCFS uses a subset of that system known as the Licensing Information System (the LIS) to track cases for licensing purposes. See id. § 80-2-1002(1)(a)(i). In cases involving a severe type of child abuse or neglect, DCFS enters supported findings into the LIS and the alleged perpetrator thereafter “may be disqualified from adopting a child, receiving state funds as a child care provider, or being licensed by DCFS, a human services program, a child care provider or program, or a covered health care facility.” State v. A.C., 2022 UT App 121, ¶ 3, 521 P.3d 186 (quotation simplified).

¶14 All these statutes were in play in these proceedings. On three separate occasions prior to the State’s filing of the petition, DCFS had investigated Mother for abuse of K.T. Following each of its three investigations, DCFS had supported a finding of abuse of K.T. against Mother. One of those supported findings was of “chronic emotional abuse” of K.T., which falls within the statutory definition of a “severe type of child abuse” under Utah Code section 80-1-102(78)(a)(i)(A) that then must be entered into the LIS.

¶15 The amended petition removed the request that the juvenile court adjudicate K.T. as abused. Instead, it requested that the court adjudicate K.T. as neglected. But the amended petition also recited DCFS’s history with K.T., stating that DCFS had previously supported findings of abuse against Mother, and requested that the court substantiate these supported findings of abuse. Adjudicating both requests for relief fell squarely within the juvenile court’s express statutory authority. Indeed, Mother identifies no statutory provision limiting the court’s authority to substantiate DCFS findings of abuse based on the outcome of the State’s independent request to adjudicate the status of an allegedly abused, neglected, or dependent child.

¶16 Mother’s argument that the juvenile court’s substantiation decision must be consistent with its adjudication decision in a related petition for abuse, neglect, or dependency is also inconsistent with the burdens of proof dictated by the UJC. While the juvenile court may adjudicate a minor as abused, neglected, or dependent based only on clear and convincing evidence, it can substantiate a DCFS finding based on a mere preponderance of the evidence. Compare Utah Code Ann. § 80-1-102(87), with id. § 80-3-402(1). These different standards give rise to the distinct possibility that a juvenile court could decline to adjudicate a minor as abused, while still substantiating a DCFS finding of abuse based on the lower burden of proof.

¶17 Despite the absence of a statutory provision linking the outcome of the amended petition to the outcome of a request for substantiation, Mother argues the juvenile court’s ruling on the neglect petition ended the court proceedings, “leaving no question open for further judicial action.” (Quoting In re M.W., 2000 UT 79, ¶ 25, 12 P.3d 80.) But this argument is directly contrary to the statutory language. Utah Code section 80-3-404 addresses the responsibility of the juvenile court to adjudicate DCFS supported findings of severe child abuse or neglect and their inclusion in or removal from the LIS. Upon the filing of “an abuse, neglect or dependency petition . . . that informs the juvenile court that [DCFS] has made a supported finding that an individual committed a severe type of child abuse or neglect, the juvenile court shall . . . make a finding of substantiated, unsubstantiated, or without merit” and include the finding in a written order. Utah Code Ann. § 80-3-404(1) (emphasis added). This provision also allows joinder of proceedings for adjudication of supported findings of severe abuse or neglect with those that do not constitute severe abuse. Id. § 80-3-404(3). And it does not limit the juvenile court’s ability to substantiate findings of severe abuse to those cases in which the court has granted a petition to adjudicate a child as abused. In short, the juvenile court was required to rule on the State’s substantiation request.[7]

II.

¶18 Next, Mother argues the State and juvenile court were bound by the facts and legal conclusions contained in the amended petition to which the parties had stipulated. Mother reasons that because the parties had stipulated to a finding of neglect, the juvenile court could not substantiate DCFS’s supported findings of abuse.

¶19 Mother’s argument is inconsistent with both the language of the amended petition and the course of the proceedings before the juvenile court. At the hearing on the amended petition, the State informed the court that the State and Mother had agreed to submit the matter to the court for a “finding of neglect” and that they “would ask also the Court to reserve the issue of substantiating the DCFS supporting findings at this point in time and set that over for disposition.” In connection therewith, Mother agreed to admit the allegations of the amended petition except those in paragraphs 5 and 6. Paragraph 5 alleged DCFS’s history with the family, including DCFS’s supported findings of abuse. Paragraph 6 alleged additional facts supporting the conclusion that K.T. was neglected or dependent.

¶20 Although Mother declined to admit the allegations of paragraphs 5 and 6, she did not deny them. Instead, she proceeded pursuant to rule 34(e) of the Utah Rules of Juvenile Procedure by neither admitting nor denying them. But as the juvenile court expressly informed Mother at the hearing, Mother’s decision not to deny those allegations had legal significance since “[a]llegations not specifically denied by a respondent shall be deemed true.” See Utah R. Juv. P. 34(e). The court was therefore free to base its decision on all the allegations of the amended petition, including those in paragraph 6 regarding DCFS’s supported findings of abuse. Because the parties’ stipulation was not inconsistent with the court’s ruling, it did not err.

III.

¶21 Lastly, we turn to Mother’s argument that her trial counsel was ineffective for not advising her that the juvenile court could deviate from its adjudication of neglect and substantiate DCFS’s findings of abuse for entry into the LIS. To prevail on an ineffective assistance of counsel claim, Mother must show that counsel’s performance was deficient and that this deficient performance prejudiced her defense. See In re C.M.R., 2020 UT App 114, ¶ 19, 473 P.3d 184. A reviewing court must “indulge in a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance, and that under the circumstances, the challenged action might be considered sound trial strategy.” State v. J.A.L., 2011 UT 27, ¶ 25, 262 P.3d 1 (quotation simplified).

¶22 After indulging these presumptions, we are unable to conclude that counsel’s performance was deficient because there are many sound reasons why Mother’s decision to settle the petition with a finding of neglect, while allowing the juvenile court to resolve the substantiation issue, was sound strategy. The petition sought a finding that K.T. had been abused, and it was possible, if not likely, that proceeding to trial on the original petition could have resulted in both an adjudication of abuse and a substantiation of the abuse claims against Mother. The fact that Mother now regrets her decision to settle does not lead to the conclusion that counsel performed deficiently. Mother appeared before the juvenile court, and the court explained her rights and questioned her about the voluntariness of her decision. Nothing in the record suggests that Mother’s decision to settle was the result of ineffective assistance of counsel.

CONCLUSION

¶23 The juvenile court acted well within its statutory authority in substantiating DCFS’s findings of child abuse, and the court was entitled to consider all the allegations of the amended petition when determining whether to substantiate that finding. Mother has not demonstrated how her decision to settle was the result of ineffective assistance of counsel. Accordingly, we affirm.

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

 

[1] As relevant here, “abuse” is defined as “nonaccidental harm of a child” or “threatened harm of a child.” Utah Code Ann. § 80-1102(1)(a)(i) (LexisNexis Supp. 2022). “‘Supported’ means a finding by [DCFS] based on the evidence available at the completion of an investigation, and separate consideration of each allegation made or identified during the investigation, that there is a reasonable basis to conclude that abuse, neglect, or dependency occurred.” Id. § 80-1-102(89).

[2] “‘Substantiated’ or ‘substantiation’ means a judicial finding based on a preponderance of the evidence, and separate consideration of each allegation made or identified in the case, that abuse, neglect, or dependency occurred.” Id. § 80-1-102(87).

[3] The statutory provisions of Title 78A of the Utah Code that were in effect at the time of the juvenile court proceedings have since been renumbered and recodified as part of the Utah Juvenile Code, which is now found in Title 80 of the Utah Code. Because the provisions relevant to our analysis have not been substantively amended, we cite the recodified version for convenience.

[4] Under rule 34(e) of the Utah Rules of Juvenile Procedure, “[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.” Utah R. Juv. P. 34(e).

Here, the juvenile court took great care to ensure that Mother understood the consequences of not denying these allegations. The court informed Mother that it was “going to find [the allegations] to be true, even though [she was] not admitting nor denying [them].” When Mother indicated she did not understand, the court took a break to allow Mother to confer with her counsel. Following the break, the court confirmed that Mother had ample opportunity to discuss the issue with counsel and understood what was happening with respect to the allegations at issue.

[5] Although the juvenile court entered a finding of neglect pursuant to the stipulation of the parties, it indicated the evidence was also sufficient to support a finding of abuse.

[6] Even though the court placed K.T. under the protective supervision of DCFS, K.T. remained in his father’s custody.

[7] Mother also argues the juvenile court erred by not ruling on the State’s substantiation request at the time it adjudicated the petition for neglect. But Mother did not preserve this argument below. When the State raised the substantiation request at the adjudication hearing and asked that it be continued to a later hearing, Mother did not object.

Tags: , , , , , , , , , , , , , ,

Is the Johnny Depp divorce trial actually newsworthy?

The divorce trial wasn’t all that newsworthy or memorable (celebrities divorcing is expected), it’s his defamation trial against his ex-wife that is newsworthy. Why? 

Although his defamation case is not as relevant to the country as news that affects us all more directly (like economic news), it is highly relevant in the field of divorce and family law because it has brought nationwide attention to a problem we lawyers have known about forever but that others haven’t: the shabby treatment of men in domestic relations law. 

As recently as one generation ago, the thought of a man being a domestic violence victim was almost unthinkable. That’s not hyperbole. It was literally almost unthinkable. I’m not suggesting that women didn’t have their own legal prejudices to overcome (they clearly did then and to a lesser extent today, they still do), but it was an open secret that, with rare exception, the law ignored male domestic violence victims. 

On second thought, “ignore” is not the most accurate term because that would imply that the law didn’t pay any attention to male domestic violence victims, and that’s not true. It did pay some attention to them, but in the form of arresting, charging, and prosecuting them if they had the guts to speak up. 

What makes Johnny Depp’s defamation action against Amber Heard newsworthy today is because it focused the media’s attention (and thus focused the country’s attention) on a serious problem that needs and deserves to be solved now, not solved eventually. Johnny Depp’s defamation action against Amber Heard reveals: 

– how brazenly a woman can repeatedly commit and get away with physically and emotionally abusing her spouse or boyfriend; 

– how brazenly a woman can repeatedly commit and get away with physically and emotionally abusing her spouse or boyfriend, while claiming—and by claiming—to be the victim herself; and 

– the depth and breadth of institutionalized sexual discrimination that pervades domestic violence laws and their enforcement. 

– that it was (and largely still is) that combination of: 

    • 1) believing that men generally/realistically can’t be victims of domestic violence at the hands of women; and 
    • 2) blaming and prosecuting the man when a man complains of domestic violence that leads so many male domestic violence victims to keep silent (under such circumstances, who can blame them?) 

In fact, while men commit more acts of domestic violence that are more severe than those of women, women commit ever so slightly more “intimate partner” (i.e., domestic) physical violence than do men (30.6% women victims, 31% men victims, according to the CDC). 

Johnny Depp’s defamation suit against his ex-wife is helping to dispel the myths: 

  • that women don’t commit domestic violence against men; 
  • that there are male domestic violence victims (some people really do find that idea surprising); and 
  • that presuming a woman who claims to be a domestic violence victim must be a victim (i.e., “believe all women”) is ridiculous. “Start by believing” is equally ridiculous. Start by investigating. Presume nothing. 

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

https://www.quora.com/Is-the-Johnny-Depp-divorce-trial-actually-newsworthy/answer/Eric-Johnson-311 

Tags: , , , , , , , , , ,

How can I make my abusive husband divorce me?

Short of holding the proverbial gun to his head (i.e., forcing him to do so against his will), you can’t.  

While you might contrive to motivate your husband to file for divorce against you by committing marital fault yourself, that might cause the court to disfavor you when making the rulings and judgments in the divorce, so you don’t want to go that route.  

If you want your husband to be the one to file for divorce so that you can claim aggrieved/martyr status, you may have to wait a long time, if he ever does in fact file for divorce.  

The good news is that if you want a divorce in the United States you do not have to wait for your husband to file for divorce to obtain a divorce. You can file for divorce yourself, and you can do so without having to blame him for anything (this is what a “no-fault divorce is; obtaining a divorce without having to allege you or your husband is at fault). 

If you are afraid that you won’t be awarded alimony or child custody or some other thing or benefit in the divorce action if you file for divorce, that’s likely not the case (I can’t speak for divorce law in all jurisdictions, but I am not aware of any U.S. jurisdiction that “punishes” a spouse merely for being the one to file for divorce).  

Besides, if your husband is abusing you—AND YOU CAN PROVE THAT (as opposed to merely asserting it in a “your word against mine” situation)—then you’re not only well within your rights to be the one to file for divorce, you are clearly justified in filing for divorce. No decent court is going to fault you for filing for divorce to escape abuse.  

Go meet with an attorney. Find out more about how the law governing divorce works in your jurisdiction. Determine what your options are, balance the risks against the benefits. Learn what you can and should do to prepare for divorce as fairly and successfully as possible.  

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

https://emotionalabusesurvivor.quora.com/How-to-make-my-abusive-husband-divorce-me?__nsrc__=4  

Tags: , , , , , , , , ,

Has anyone ever been able to prove narcissistic abuse in divorce court?

Yes, it happens quite frequently.*  

What people don’t understand is that finding a spouse is a jerk usually doesn’t amount to much in the divorce action.  

Most people believe—falsely—that if they can show the court that their spouses are narcissists (or some other type of insufferable personality) that this will result in the court bringing the wrath of God down on the narcissist and showering the other spouse with sympathy and riches for his/her trouble. Not so. 

Literally hundreds of thousands of people going through a divorce whose spouses suffer from (or who are suspected of suffering from) personality disorders believe that “if I can prove to the court that my spouse suffers from [antisocial personality disorder, avoidant personality disorder, borderline personality disorder, dependent personality disorder, histrionic personality disorder, narcissistic personality disorder, obsessive-compulsive personality disorder, paranoid personality disorder, schizoid personality disorder, schizotypal personality disorder], I’ll win everything my heart desires in the divorce case.” No, you won’t.  

It’s not narcissistic personality disorder or borderline personality disorder that matters, but actions (or a failure to act) that matters, first and foremost. If your spouse is physically or emotionally abusing you or the kids (and please accept that your when your spouse occasionally disagrees with or criticizes you or your children that does not make him or her emotionally abusive), it doesn’t matter why. If your spouse has a drug or alcohol problem, or a gambling habit, or your able-bodied spouse is lazy and won’t earn a living, it doesn’t matter why. There’s no excuse. An abusive or grossly irresponsible spouse is bad regardless of whether he or she has a personality disorder. See?  

——————– 

*Now that does not mean that a judge necessarily makes the specific finding of “Husband/Wife is a narcissist who abused his/her spouse,” but many divorce courts find, in making or denying awards of marital property and assets, alimony, child custody, and parent-time, and protective or restraining orders that a spouse and/or parent engaged in lying, cheating, manipulative, exploitative, abusive, neglectful, irresponsible, and/or parental alienating behavior. 

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

https://www.quora.com/Has-anyone-ever-been-able-to-prove-narc-abuse-in-divorce-court/answer/Eric-Johnson-311  

Tags: , , , , , , ,

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.

Tags: , , ,
Click to listen highlighted text!