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.
[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).
I can speak for what the law is in all jurisdictions, of course, but I can answer this question as it applies in the jurisdiction where I practice divorce and family law (Utah):
Can they? Meaning: is it possible? Yes.
How? Several ways (in no particular order of ease or popularity):
Petition the court to terminate the parents’ parental rights and award the custody of (and parental rights to) the children to the grandparents;
Petition for guardianship of the grandchildren such that the grandparents obtain legal and physical custody of the grandchildren;
Petition for grandparent “visitation” rights that result in the parents having no physical custody of the children.
Should grandparents take custody from parents permanently?
That is a question that many selfish grandparents fail to ask enough. To be sure, grandparents who seek to be awarded custody of their grandchildren when the parents abandon those children are doing a noble and necessary thing. Unfit parents need to have their children taken from them, at least on a temporary basis until and unless the parents reform and become fit to exercise the legal and physical custody of their children. But you’d be amazed at the number of times grandparents will call me wanting to take their grandchildren from their parents out of greed or spite or petty disagreements over how children should be treated and reared. Those kinds of grandparents need to back off and respect the parents’ rights.
I cannot answer this question as the law applies in every jurisdiction, but I can give you the answer as the law applies in Utah, which is the state where I practice divorce and family law, which includes a great deal of child custody law as well.
As I’ve spoken to people over the course of my career open (25 years as of the date this is written), I have noticed that most believe that grandparents either already have or should have “rights” to interact with their grandchildren. and by “interaction” most people define that as the right of grandparents too personally interact with them and to communicate with them (whether that be on the telephone or by video conference or in writing).
I believe the reason most people feel this way is because most people have good feelings toward and memories of their grandparents, and so they hastily believe that all grandparents are good and that all grandchildren would benefit from regular contact with their grandparents.
But just as soon as they read the previous paragraph, most people see the error in such thinking. They realize, when reminded, that not every grandparent is the kind of person who can and ought to interact with his/her grandchildren because some people are dangers to themselves or to others, some people are bad examples, bad influences.
According to some cursory research that I conducted in preparing this answer, all 50 states in the United States of America have grandparent visitation laws on the books. Utah is no exception.
Utah’s original grandparent visitation law (it has since been amended and the amended current version of the statute can be found here), however, was found to be an unconstitutional infringement of parental rights. in the case of Jones v. Jones (2013 UT App 174, 307 P.3d 598 (Utah Court of Appeals 2013). The old version of the statute entitled–over the objection of the parents of the child–grandparents to a court order of grandchild visitation, as long as the grandparent or grandparents met these requirements:
(2) There is a rebuttable presumption that a parent’s decision with regard to grandparent visitation is in the grandchild’s best interests. However, the court may override the parent’s decision and grant the petitioner reasonable rights of visitation if the court finds that the petitioner has rebutted the presumption based upon factors which the court considers to be relevant, such as whether:
(a) the petitioner is a fit and proper person to have visitation with the grandchild;
(b) visitation with the grandchild has been denied or unreasonably limited;
(c) the parent is unfit or incompetent;
(d) the petitioner has acted as the grandchild’s custodian or caregiver, or otherwise has had a substantial relationship with the grandchild, and
the loss or cessation of that relationship is likely to cause harm to the grandchild;
(e) the petitioner’s child, who is a parent of the grandchild, has died, or has become a noncustodial parent through divorce or legal separation;
(f) the petitioner’s child, who is a parent of the grandchild, has been missing for an extended period of time; or
(g) visitation is in the best interest of the grandchild.
The Utah Court of Appeals, in Jones v. Jones, held that the problem with the original grandparent visitation rights statutes was that it was unconstitutional. The Court of Appeals opined:
¶ 24 The Grandparent Visitation Statute qualifies as “legislation infringing parental rights” in a substantial, not merely incidental, way, because it allows the state to override a parent’s decision regarding the care, custody, and control of her child. See Wells[Wells v. Children’s Aid Soc’y of Utah, 681 P.2d 199, 206 (Utah 1984))], 681 P.2d at 206; see also Washington v. Glucksberg, 521 U.S. 702, 767 n. 8, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (Souter, J., concurring in the judgment) (noting that “not every law that incidentally makes it somewhat harder to exercise a fundamental liberty must be justified by a compelling counterinterest,” but only those laws that substantially infringe on a fundamental liberty interest); Koshko v. Haining, 398 Md. 404, 921 A.2d 171, 187–91 (2007) (holding that the state’s grandparent visitation statute infringed on a fundamental right in a direct and substantial way). Furthermore, as noted above, the application of strict scrutiny is consistent with the majority of other jurisdictions to address the issue under the federal constitution. We agree with the reasoning of those cases and thus conclude that strict scrutiny review applies to Mother’s claim that the statute, as applied, violated her rights under the Utah and United States Constitutions.
The Statute as Applied to the Facts of This Case Does Not Withstand Strict Scrutiny.
¶ 25 As noted above, a “statute that infringes upon [a parent’s] ‘fundamental’ right is subject to heightened scrutiny and is unconstitutional unless it (1) furthers a compelling state interest and (2) ‘the means adopted are narrowly tailored to achieve the basic statutory purpose.’ ” Jensen ex rel. Jensen v. Cunningham, 2011 UT 17, ¶ 72, 250 P.3d 465 (quoting Wells, 681 P.2d at 206). The Grandparent Visitation Statute as applied to the facts of this case satisfies neither element of this test.
To remedy the unconstitutional defects in Utah’s grandparent visitation rights statute, the defective part was amended to provide:
(2)(a) In accordance with Section 80-2a-201, it is the public policy of this state that a parent retains the fundamental right and duty to exercise primary control over the care, supervision, upbringing, and education of the parent’s children.
(b) A court shall presume that a parent’s decision in regard to grandparent visitation is in the best interest of the parent’s child.
(3) A court may find the presumption in Subsection (2)(b) rebutted if the grandparent, by clear and convincing evidence, establishes that:
(a) the grandparent has filled the role of custodian or caregiver to the grandchild that:
(i) is in a manner akin to a parent; and
(ii) the loss of the relationship between the grandparent and the grandchild would cause substantial harm to the grandchild; or
(b) both parents are unfit or incompetent in a manner that causes potential harm to the grandchild.
The old statute was also amended to omit this provision of the old statute:
(4) Subject to the provisions of Subsections (2) and (3), the court may inquire of the grandchild and take into account the grandchild’s desires regarding visitation.
So what does this all mean for grandparents seeking visitation rights with their grandchildren in Utah? To put it simply, it means that for grandparents to win a case seeking rights of visitation with their grandchildren, they can’t merely show that it would be in the child’s best interest and that the child would suffer mayor harm without visitation with the child grandparents, the grandparents must show that either A) the grandparent has filled the role of custodian or caregiver to the grandchild that is in a manner akin to a parent and that the loss of the relationship between the grandparent and the grandchild would cause substantial harm to the grandchild; or B) both parents are unfit or incompetent in a manner that causes potential harm to the grandchild. merely showing that it would be “in the best interest of the child” for the grandparents do have visitation with the grandchild is not enough to obtain a court order of grandparent visitation in Utah.
Utah Family Law, LC | divorceutah.com | 801-466-9277
STATE of Utah, IN the INTEREST OF B.W., J.W., and N.W., persons under eighteen years of age.
H.W., Appellant,
v.
State of Utah, Appellee.
No. 20210886-CA
Filed November 17, 2022
Eighth District Juvenile Court, Duchesne Department, The Honorable Jeffry Ross, No. 1182864
Attorneys and Law Firms
Emily Adams and Sara Pfrommer, Park City, Attorneys for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Salt Lake City, Attorneys for Appellee
Martha Pierce, Salt Lake City, Guardian ad Litem
Judge Ryan D. Tenney authored this Opinion, in which Judges Gregory K. Orme and Ryan M. Harris concurred.
Opinion
TENNEY, Judge:
¶1 In December 2019, H.W. (Mother) gave birth to twins, J.W. and N.W. (collectively, the Twins). At the hospital, Mother tested positive for methamphetamine, as did the Twins’ umbilical cords. The Division of Child and Family Services (DCFS) soon began providing protective supervision services to Mother, the Twins, and B.W., Mother’s one-year-old son. After Mother repeatedly failed drug tests, the juvenile court placed B.W., J.W., and N.W. (collectively, the Children) in DCFS custody.
¶2 Mother continued to struggle with illegal drug use, and the court terminated reunification services in May 2021. Mother was then treated in an inpatient treatment facility from May through August 2021. After leaving this treatment facility, Mother again relapsed, using methamphetamine several times in the ensuing weeks. At the close of a termination hearing in November 2021, the court terminated Mother’s parental rights in the Children.
¶3 Mother now appeals the termination decision, arguing that there was not clear and convincing evidence (1) that any ground for termination existed or (2) to support the court’s best interest determination. As set forth below, however, there was enough evidence on both fronts. We accordingly affirm the challenged rulings.
BACKGROUND
DCFS Petitions for Protective Supervision
¶4 In December 2019, when B.W. was one year old, Mother gave birth to the Twins. At the time of their birth, Mother tested positive for “methamphetamine and amphetamines.” The Twins’ umbilical cords also tested positive for methamphetamine and amphetamines. Mother claimed that “she didn’t know why or how she could have tested positive unless it was her e-cigarette.”1
¶5 Based on the positive drug tests, DCFS filed a verified petition for protective supervision services a few weeks after the Twins’ births. In that petition, DCFS alleged that the Children were abused and neglected based on the Twins’ fetal exposure to illegal drugs.
¶6 Mother responded pursuant to rule 34(e) of the Utah Rules of Juvenile Procedure, meaning that she neither admitted nor denied the allegations but accepted that the allegations would “be deemed true.” See Utah R. Juv. P. 34(e). Based on Mother’s rule 34(e) response, the juvenile court found that the Twins had been exposed to illegal drugs and that all the Children were abused and neglected by Mother. The juvenile court accordingly ordered DCFS “to provide protective supervision services to the family” and to develop a child and family plan.
¶7 With Mother’s input, DCFS then created a child and family plan. The plan listed several responsibilities for Mother, such as maintaining a residence appropriate for the Children, completing a mental health and substance abuse assessment, submitting to random drug testing, and making daily calls to the Treatment Assessment Screening Center (TASC) system.
¶8 The court held a disposition hearing less than one month after it adjudicated the Children as abused and neglected. At that hearing, DCFS reported that Mother had not been calling into the TASC system or completing drug tests. The guardian ad litem moved for the Children to be taken into DCFS custody, but the court declined that request and instead again ordered Mother to comply with the plan. The court also scheduled a thirty-day review hearing.
DCFS Petitions for Custody
¶9 Over the next month, “Mother failed to call into TASC 7 times, missed 3 drug tests, and tested positive for methamphetamines on two occasions.” As a result, on April 16, 2020, DCFS filed an expedited verified petition for custody.
¶10 About a week later, the juvenile court held a pretrial hearing on the custody petition. Mother entered a rule 34(e) response, and the court again determined that Mother had abused and neglected the Children. The court also found that DCFS had made “[r]easonable efforts” to “prevent the removal of” the Children but that those “efforts were unsuccessful.” The court thus ordered the Children to be removed from Mother and placed in the temporary custody of DCFS.
¶11 The court held a disposition hearing the following month. At that hearing, the court ordered Mother to comply with a newly created child and family plan, which contained “essentially the same provisions as the previous one,” including the requirements noted above. The court also ordered DCFS to provide reunification services, acknowledging that reunification was “the primary goal.”
Mother Requests Placement with Grandparents
¶12 At the pretrial and disposition hearings (and, as will be discussed, at subsequent hearings in the case as well), Mother requested that the Children be placed with her mother (Grandmother) and stepfather (Step-Grandfather) (collectively, Grandparents). After Mother made this request, however, the State notified the court that Step-Grandfather was unable to pass a DCFS background check. The record lacks some of the specifics regarding this background check, but it does show that DCFS informed the court that Step-Grandfather was unable to pass it because there were five cases against him in the Licensing Information System (LIS). The LIS is a “sub-part of the Management Information System,” a database that DCFS is statutorily required to maintain.2 Utah Code Ann. § 62A-4a-1006(1) (LexisNexis Supp. 2021). For an individual to be included in the LIS, DCFS must make “a supported finding” that the individual committed “a severe type of child abuse or neglect.” Id. § 62A-4a-1005(1); see also id. § 62A-4a-1006(1)(b).
¶13 DCFS gave information to Step-Grandfather about how to appeal the LIS cases. After he did, three of the cases were administratively overturned.3 But the remaining two were upheld because they “were of such significance that they [could not] be overturned.”
¶14 Even so, Mother still requested that the Children be placed with Grandparents. Over the course of several hearings, Grandmother informed the court that Step-Grandfather was only home one day every week, that the LIS cases in question were from “[a]bout 20 years ago,” and that Step-Grandfather was “never charged with sexual abuse.” Nonetheless, the court repeatedly decided against placing the Children with Grandparents.4
Juvenile Court Terminates Reunification Services
¶15 For the remainder of 2020, Mother struggled to comply with the new child and family plan. For example, although Mother successfully completed a mental health and substance abuse assessment, she “struggled for the first several months to fully engage in the therapy that was recommended for [her], with attendance being very sporadic and inconsistent.” On December 1, 2020, Mother was scheduled to check into an inpatient treatment facility. But when the DCFS caseworker went to pick her up, “Mother did not answer the door and missed her appointment to check in.” Mother belatedly went to the treatment facility the following week, but on arrival, she tested positive for methamphetamine. When the facility offered to accept Mother despite the positive drug test, she “refused to enter.” After learning of these events, the court ordered Mother to be jailed if she was not in an inpatient treatment facility by December 23, 2020. Mother checked into a facility on December 23, but she left two days later.
¶16 In February 2021, Mother gave birth to another child, A.W. Shortly after A.W.’s birth, DCFS removed him from Mother’s care via warrant. He was returned to Mother’s custody once his umbilical cord test came back showing no presence of illegal drugs. But the court ordered Mother to “strictly comply with the court’s drug testing orders going forward, or A.W. would likely be removed from [her] custody again.” In April 2021, the court removed A.W. from Mother’s custody based on Mother’s “ongoing drug testing issues.”5
¶17 The court held a permanency hearing for the Children in May 2021. At that hearing, the court found that DCFS had made “[r]easonable efforts” to provide reunification services and that Mother “partially complied with the requirements of the service plan.” But the court stated that it could not find that Mother had “the strength to stay away from drugs with the [Children] in the home.” In support of this, the court detailed the many times that Mother had tested positive for illegal drugs or had failed to test at all. The court further determined that it could not extend reunification services for the Children, so it changed their final permanency plan to adoption.6
Mother Enters an Inpatient Treatment Facility
¶18 From May 3, 2021, through August 31, 2021, Mother received inpatient drug treatment. Although she tested positive for methamphetamine when she arrived, she reportedly did very well in the program and remained drug-free throughout her stay. Before leaving treatment, Mother told a caseworker that she no longer wished to live with the alleged father because he was also struggling to stay clean. But when Mother left the facility, “she almost immediately” started living with the alleged father again and “very quickly relapsed on methamphetamine.” Mother later testified that in the two months after she left the facility, she had “3 relapses and 5 methamphetamine uses.”
Juvenile Court Terminates Mother’s Parental Rights
¶19 On June 15, 2021, the State filed a verified petition for termination of Mother’s parental rights. The court held a termination hearing on November 1, 2021, and the parties stipulated to present the evidence by proffer and have the witnesses available for cross-examination. In support of its petition, the State proffered the testimony of two DCFS caseworkers, and those caseworkers also appeared in court for live cross-examination. The State also offered, and the court received, the caseworkers’ case notes. The Children’s current foster mother (Foster Mother) testified in person.
¶20 The first DCFS caseworker (Caseworker 1) had worked with the family from the Twins’ births until December 2020. The State proffered that she would have testified about DCFS’s unsuccessful efforts to place the Children with relatives, Mother’s supervised visits with the Children, and Mother’s efforts to comply with the plan, including drug testing and participation in therapy. Caseworker 1 also would have discussed how she arranged to take Mother to an inpatient treatment facility and how Mother did not answer the door when Caseworker 1 arrived.
¶21 On cross-examination, Mother’s counsel asked how Mother interacted with the Children during the supervised visits. Caseworker 1 responded that Mother was “very engaging” with the Children and that the “visits went very well.” Caseworker 1 also agreed that Mother clearly loved the Children. When Counsel asked if Mother was a “good and appropriate parent[ ]” “but for the drug use,” Caseworker 1 replied, “Yes, except for the drug use.” Counsel also asked about her observations of Mother’s home. Caseworker 1 responded that “[m]ost of the time, [she] was just in the living room” and that she “did not see any drugs or paraphernalia.”7 Caseworker 1 also agreed that before the Children were removed from Mother’s custody, she never observed them to be without proper food, clothing, supervision, affection, or medical care.
¶22 Mother’s counsel also questioned Caseworker 1 about why the Children weren’t placed with Grandparents. Caseworker 1 responded that the Children were not placed with Grandparents because “[t]here were some things on [Step-Grandfather’s] background check that [DCFS] just could not look at them being a placement.” When asked if she remembered what was troubling about Step-Grandfather’s background check, Caseworker 1 answered, “I don’t, no. Usually I look at those, and once it’s not acceptable for our agency, it – you know, that’s pretty much it for me.”
¶23 The guardian ad litem (the GAL) assigned to the Children also cross-examined Caseworker 1. When the GAL asked if Mother took responsibility for her drug use, Caseworker 1 responded that although Mother “was always very apologetic,” she didn’t “follow through” or “do what we asked.” Caseworker 1 said that Mother had “a tendency to blame other people for [her] problems.” And when asked about Mother’s drug testing, Caseworker 1 said that it “went in waves,” where Mother would “do really well for a while” but then “wouldn’t do well for a while.”
¶24 The State also proffered testimony from a second DCFS caseworker (Caseworker 2). Caseworker 2 had worked with the family from December 2020 through the termination hearing in November 2021. She would have testified that she attempted to take Mother to the inpatient treatment facility in December 2020, that Mother tested positive for methamphetamine when they arrived at the facility, and that, for “unclear” reasons, Mother ultimately refused to stay at the facility. Caseworker 2 also would have testified that later in December 2020, Mother entered an inpatient program but left after two days. And she would have testified about attempts to place the Children with relatives, the supervised visits, and Mother’s efforts to comply with the plan. She also would have explained how Mother’s youngest child, A.W., was placed in DCFS custody due to Mother’s failed drug tests. Caseworker 2 would have further testified that Mother entered an inpatient treatment facility in May 2021, that Mother had plans to move in with Grandmother after she left the program because the alleged father is one of her “triggers,” but that after leaving the program, Mother almost immediately moved back in with the alleged father.8
¶25 During her cross-examination, Caseworker 2 acknowledged that Mother “interact[s] very well” with the Children and described her behavior during the supervised visits as “appropriate.” Caseworker 2 also acknowledged that in the times she had been inside Mother’s home, she had never “seen any sign of drug use or paraphernalia.” But when the GAL asked if the Children could “be safely returned to the home today,” Caseworker 2 replied, “No.” And when asked if Mother was “a good and appropriate parent” “but for” her drug use, Caseworker 2 responded, “I don’t like the term good parent, bad parent. I think it’s too subjective. But I think in answer to that, I would say she is an appropriate parent. I think she’s a parent with issues, but she tries her best.”
¶26 Foster Mother testified next. Foster Mother explained that she and her husband started fostering N.W. in April 2020 and J.W. and B.W. in May 2020. Foster Mother described the Children as her “whole world” and testified that she and her husband were willing to adopt the Children.
¶27 Foster Mother then spoke about each individual child. She said that B.W., for example, is “enrolled in early intervention” with PrimeTime 4 Kids and “receives speech and language therapy.”9 And she said that J.W. also does PrimeTime 4 Kids, but that he doesn’t have any “physical limitations or medical needs.” Foster Mother also explained that N.W. has a rare chromosomal syndrome. When N.W. first came into their home, he was on “supplemental oxygen 24 hours a day” and had a G-tube to help with feeding, which required daily cleaning. She further testified that N.W.’s chromosomal syndrome has caused developmental delays and that he will “remain delayed.” On cross-examination, she discussed how she and her husband “did a lot of research” into the syndrome by watching YouTube videos and “lectures given by doctors.”
¶28 After the State rested, Mother proffered the testimony of three witnesses: a clinical mental health counselor (Counselor) who worked with Mother at the inpatient treatment facility, Grandmother, and Mother. As had occurred with the State’s witnesses, the three witnesses’ testimonies were offered via proffer, and Grandmother and Mother were then subject to live cross-examination.10
¶29 Counselor would have testified that Mother entered the inpatient treatment facility in May 2021 and successfully completed the program in August 2021. She would have stated that “[o]ver the last four to five weeks of her treatment, [Mother] gave this program her all, attending all groups, individual sessions, case management appointments, et cetera.” Counselor also would have explained that Mother gave “each assignment careful thought and consideration” and had “agreed to continue to work on learning parenting skills and how to improve her ability to manage her emotions in a healthy way.” And Counselor would have testified that Mother “created a strong after care plan that included support from 12-step meetings, her religious community, and her ongoing therapists.” After proffering Counselor’s testimony, Mother’s counsel clarified that Counselor and Mother had not been in contact since Mother left the facility.
¶30 Mother proffered Grandmother’s testimony next. Grandmother would have testified that Mother and B.W. lived with her until B.W. was six months old. Grandmother would have described Mother as a “phenomenal mother” who dedicated her time to teaching and loving the Children. She would have described how Mother took the Children to the doctor frequently. She would have also testified that “she’s absolutely never known [Mother] to be high around her kids” and that she “didn’t know much about the drug use when [Mother and the alleged father] were living with [Grandparents] because they were never high around the kids.” Grandmother would have further explained that Mother had been working hard toward recovery and had been implementing what she learned in therapy.
¶31 Grandmother would have also testified about her attempts to have the Children placed with her and Step-Grandfather. She would have explained that they were denied placement because of the LIS cases against Step-Grandfather and “that they went through the appeal process,” “but they were denied again.” She would have testified that she and Step-Grandfather were “willing to work any safety plan requested by DCFS, including line-of-sight supervision any time” Step-Grandfather is around the Children. Grandmother would have also stated that Step-Grandfather was “willing to do a sexual behavioral risk assessment” and that “they would follow through with any treatment.”
¶32 At this point, the court asked for clarification about when Grandparents had requested custody, and Mother’s counsel provided a summary of when Grandparents had done so.11 Mother’s counsel further explained that DCFS denied placement with Grandparents because DCFS claimed there was “a substantiated sexual abuse allegation on the licensing database” that couldn’t be overturned. She said that DCFS “would not provide any more details than that as to what their concerns were.” When the court asked if Grandparents’ placement request was denied each time, Mother’s counsel stated that the requests were “denied,” or, rather, “continued more often than denied outright.”
¶33 Mother then proffered her testimony. Mother would have testified that “she loves her children very much and has worked very hard to be successful in this case.” She would have testified that she promptly addressed all safety concerns that DCFS caseworkers had about her home, like getting a fire extinguisher. She would have also explained how she always took the Children to their doctors’ appointments and how they were healthy and clean when they went into the State’s custody. With respect to her drug use, she would have described her improvement since entering a treatment facility and how she’s worked on implementing the skills she learned. Mother would have also acknowledged, however, that she was “not yet in active recovery.” But Mother would have testified that “despite her substance abuse disorder, … she always kept the drugs out of her home” and that she never used “around the [Children] and never at the house.”
¶34 During cross-examination, Mother acknowledged that she and the Twins’ umbilical cords tested positive for methamphetamine when they were born. She also acknowledged that she tested positive for drugs while pregnant with A.W. And Mother confirmed that since leaving the inpatient treatment facility, she had three relapses and used methamphetamine five times. She further testified that she created a safety plan while in the treatment facility and that she did not follow that plan. And she testified that since leaving the treatment facility, she had not been in contact with her “after care” contacts.
¶35 After closing arguments from all parties, the court ruled from the bench that grounds for termination existed and that it was in the Children’s best interest to terminate both parents’ parental rights. The court later issued written findings of fact and conclusions of law detailing its findings. There, the court found that Mother “struggled with drug testing and maintaining [her] sobriety throughout the entirety of the case.” The court then made extensive findings about Mother’s drug use, including a finding that “in 2020, Mother had 36 missed call-ins, 19 missed tests, 5 tests that were positive for methamphetamine[,] including on dates when she would have been pregnant with A.W., 1 test that was positive for alcohol, 1 test that was positive for THC[,] and 1 diluted test.” The court further found that in January 2021, “Mother had 4 missed call-ins and 1 missed test”; that in February 2021, Mother had “perfect testing compliance”; that in March 2021, “Mother missed 1 test”; and that in April 2021, “Mother failed to test on 4 occasions, failed to call in on 2 occasions, and tested positive for methamphetamine” on one occasion. Relatedly, the court found that Mother “quickly relapsed” after leaving the inpatient treatment facility and that, by her own testimony, “she had 3 relapses and 5 methamphetamine uses in the short two months’ time from leaving treatment to the date of trial.”
¶36 The court also concluded that “Mother’s attendance at therapy up until April of 2021 can be described as inconsistent at best.” In particular, the court noted DCFS’s attempts to help Mother get into an inpatient treatment facility and Mother’s initial resistance to inpatient treatment.
¶37 The court also made findings about Mother’s efforts and progress. It found that “by all accounts,” Mother did well at the inpatient treatment facility and “gave the program her all, attended all groups, individual sessions and case management meetings and that she excelled in her program and appeared to grow in her confidence and sobriety.” The court also found that “Mother completed a parenting class, consistently participated in family team meetings, kept in regular contact with DCFS, allowed DCFS to conduct home visits, obtained proper housing, attended visits with the [Children], and completed some adult education classes.” And the court concluded “that Mother appears to have good parental instincts and was always appropriate and attentive during visits with the [Children].” The court also stated that it was “very clear” that Mother “love[s] the [Children] very much.”
¶38 The court then addressed whether DCFS made “reasonable efforts” to provide reunification services. See Utah Code Ann. § 80-4-301(3)(a) (LexisNexis Supp. 2022).12 The court concluded that DCFS did make reasonable efforts, such as “holding regular family team meetings, completing regular home visits,” helping Mother get into a treatment facility, and providing transportation. The court also noted that Mother never argued that DCFS failed to make reasonable efforts. And the court pointed out that because Mother was provided reunification services for A.W., she was “afforded an opportunity to take full advantage of these ‘additional’ services and ‘additional’ time to remedy the safety concerns that brought the [Children]” into DCFS custody.
¶39 Having made these findings, the court then engaged in the two-part inquiry for termination of parental rights, determining (1) whether a statutory ground for termination exists and, (2) if so, whether termination is in the best interest of the child. See In re B.T.B., 2020 UT 60, ¶ 62, 472 P.3d 827.
¶40 On the question of whether grounds for termination existed, the court determined that four separate grounds existed:
• First, the court found that Mother’s use of illegal drugs “constituted abuse and neglect of the [Children].” See Utah Code Ann. § 80-4-301(1)(b) (listing “that the parent has abused or neglected the child” as a ground for termination). In support of this, the court relied on Mother’s drug use while pregnant and her “ongoing continued use of methamphetamines.”
• Second, the court found that Mother was an unfit parent because her “habitual use of methamphetamines and inability to maintain sobriety for any significant amount of time during the pendency of this matter render[s] [her] unable to properly care for the [Children].” See id. § 80-4-301(1)(c) (listing “that the parent is unfit or incompetent” as a ground for termination).
• Third, the court found that the Children “are being cared for in an out-of-home placement under the supervision of the juvenile court,” Mother is “either unwilling or unable to remedy the circumstances that caused the [Children] to be in an out-of-home placement notwithstanding reasonable and appropriate reunification efforts by DCFS, and there is a substantial likelihood that Mother … will not be capable of exercising proper and effective parental care in the near future.” See id. § 80-4-301(1)(d)(i) (listing a ground for termination applicable when children are “being cared for in an out-of-home placement under the supervision of the juvenile court”). Relevant here, the court found that despite nearly two years of reunification services, Mother was “still in active methamphetamine addiction and use, which is the entire reason the [Children] were placed in DCFS custody to begin with.” The court further found that “more than a year after subjecting the [Twins] to fetal exposure of methamphetamines, Mother did the same thing to yet another child, all while participating in reunification services with DCFS.”
• Fourth, the court found that Mother “demonstrated a failure of parental adjustment.” See id. § 80-4-301(1)(e) (listing “failure of parental adjustment” as a ground for termination”); id. § 80-4-102(2) (defining “failure of parental adjustment”). Here, the court again relied on its conclusion that “with respect to Mother’s … methamphetamine addiction, very little if any progress has been made.”
¶41 Because it found that grounds for termination existed, the court then moved to the question of whether termination of Mother’s parental rights was in the Children’s best interest. As part of this analysis, the court considered whether “efforts to place the child with kin who have, or are willing to come forward to care for the child, were given due weight.” (Quoting Utah Code Ann. § 80-4-104(12)(b)(ii) (LexisNexis Supp. 2022).) The court concluded that efforts to place the Children with kin were given due weight. With respect to Grandparents, the court stated that Step-Grandfather “did not pass the DCFS background check and, as a result, [Grandparents’] request for placement was denied.” It further explained that the “denial was administratively appealed” and that Grandparents lost the appeal. And it finally noted that when Mother asked the court to “waive the failed background check” and place the Children with Grandparents anyway, the court “denied this request after considering all of the information and argument from the parties.” The court accordingly concluded that “due weight” had been given to efforts to place the Children with Grandparents but that the placement “did not occur due to [Step-Grandfather] failing his background check.”13
¶42 The court then considered whether termination was “strictly necessary” to promote the Children’s best interest. See Utah Code Ann. § 80-4-104(12)(b) (LexisNexis Supp. 2022); see also In re B.T.B., 2020 UT 60, ¶ 66, 472 P.3d 827. On this, the court made several findings about the Children’s relationship with their foster parents, including:
• The Twins “have been with the foster parents nearly their entire lives and [B.W.] for nearly half of his young life.”
• The Children “have thrived in the care of the foster parents. [B.W.] has made great strides in his speech through regularly working with a speech therapist. [N.W.] has an extremely rare condition … which results in many developmental delays and requires extra precautions and care. The foster parents have spent many hours researching the condition and how they can best care for [N.W.]”
• The Children “have formed a strong familial bond with the foster parents and look to the foster parents as their natural parents.”
• “The foster parents have treated the [Children] as their own and have tailored their lives so that one of their primary objectives is to provide for the needs and safety of the [Children].”
• “The [Children’s] sibling, A.W.[,] is also in the care of the foster parents.”
¶43 Based on these findings, the court concluded that “it is clearly in the [Children’s] best interests to have parental rights terminated so that they may be adopted.” The court further explained, “Given the young age of the [Children] and the amount of time they have been in the home of the foster parents in relation to their young ages, it is strictly necessary to terminate parental rights so the [Children] may be adopted and receive the permanency they deserve.” The court thus terminated Mother’s parental rights in the Children. Mother now appeals.
ISSUES AND STANDARDS OF REVIEW
¶44 Mother first challenges the juvenile court’s determination that grounds for termination existed. She next challenges the juvenile court’s best interest determination, arguing that the court erred when it “failed to require clear and convincing evidence to preclude a kinship placement with Grandmother” and “concluded that it was strictly necessary to terminate Mother’s parental rights.”
¶45 “Whether a parent’s rights should be terminated presents a mixed question of law and fact.” In re E.R., 2021 UT 36, ¶ 7, 496 P.3d 58 (quotation simplified). We will thus overturn a juvenile court’s termination decision only if “it is against the clear weight of the evidence or leaves [us] with a firm and definite conviction that a mistake has been made.” Id. (quotation simplified). Put differently, we will overturn a termination decision only if the juvenile court “either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” Id. (quotation simplified); see also id. ¶ 12.
ANALYSIS
¶46 In the Termination of Parental Rights Act (the Act), our legislature set forth two findings that a juvenile court must make before terminating parental rights. See Utah Code Ann. § 80-4-103(2)(c) (LexisNexis Supp. 2022); see also In re B.T.B., 2020 UT 60, ¶ 46, 472 P.3d 827. First, the juvenile court must find that at least one ground for termination exists under Utah Code section 80-4-301. See In re B.T.B., 2020 UT 60, ¶ 46, 472 P.3d 827; In re J.M., 2020 UT App 52, ¶ 30, 463 P.3d 66. Second, the court must find that termination is in the best interest of the child. See In re B.T.B., 2020 UT 60, ¶ 46, 472 P.3d 827. Both findings must be supported by clear and convincing evidence. See Utah Code Ann. § 80-4-103(2)(a); In re B.T.B., 2020 UT 60, ¶ 48, 472 P.3d 827.
¶47 In this case, the court terminated Mother’s parental rights in the Children after finding that four grounds for termination existed and that termination was in the Children’s best interest. Mother challenges both parts of that ruling.
I. Grounds for Termination
¶48 Utah Code section 80-4-301 lists several possible grounds for terminating parental rights. The juvenile court found that four of them existed with respect to Mother: “that the parent has neglected or abused the child,” Utah Code Ann. § 80-4-301(1)(b) (LexisNexis Supp. 2022); “that the parent is unfit or incompetent,” id. § 80-4-301(1)(c); “that the child is being cared for in an out-of-home placement” and additional requirements have been met, id. § 80-4-301(1)(d)(i); and “failure of parental adjustment,” id. § 80-4-301(1)(e).
¶49 Mother challenges the court’s finding of each ground, contending that there wasn’t clear and convincing evidence to support any of them. But we conclude that the evidence was sufficient with respect to at least one of the grounds—failure of parental adjustment—and we accordingly reject Mother’s argument. See In re J.M., 2020 UT App 52, ¶ 30, 463 P.3d 66 (explaining “that the presence of a single statutory ground is sufficient to fulfill the first element of the termination test”).14
¶50 As defined by the Act, failure of parental adjustment “means that a parent or parents are unable or unwilling within a reasonable time to substantially correct the circumstances, conduct, or conditions that led to placement of their child outside of their home, notwithstanding reasonable and appropriate efforts made by the division to return the child to the home.” Utah Code Ann. § 80-4-102(2) (LexisNexis Supp. 2022). Here, the juvenile court found that Mother demonstrated a failure of parental adjustment because, although she made “significant progress with a number of requirements on the child and family plan, [she was] still in active methamphetamine addiction and use, which is the entire reason the [Children] were placed in DCFS custody to begin with.” The court particularly focused on Mother’s testimony that she used methamphetamine while pregnant with A.W. and that “in the two months leading up to trial, she used methamphetamine on five occasions.”
¶51 After reviewing the record, we cannot conclude that the court’s finding that Mother demonstrated a failure of parental adjustment went “against the clear weight of the evidence.” In re E.R., 2021 UT 36, ¶ 7, 496 P.3d 58 (quotation simplified). As explained, DCFS filed a petition for protective supervision services a few weeks after the Twins’ birth, after the Twins’ umbilical cords tested positive for methamphetamine and amphetamine. The juvenile court granted the petition, adjudicated the Children as abused and neglected, and ordered Mother to submit to drug testing as part of a child and family plan. Two months later, the court removed the Children from Mother and placed them in DCFS custody because Mother missed drug tests and tested positive for methamphetamine.
¶52 Again, this ground looks to whether the parent was able to “substantially correct” the “conduct” or “conditions that led to placement of [the] child outside of their home.” Utah Code Ann. § 80-4-102(2). So here, since the Children had been removed from the home because of Mother’s positive and missed drug tests, the question before the court was whether Mother had “substantially corrected” that behavior between their removal in April 2020 and the termination hearing in November 2021.
¶53 The record supports the court’s conclusion that Mother hadn’t. Indeed, the record shows that up through the termination hearing, Mother continued to struggle with drug testing and drug use. As the court found, “in 2020, Mother had 36 missed call-ins, 19 missed tests, 5 tests that were positive for methamphetamine[,] including on dates when she would have been pregnant with A.W., 1 test that was positive for alcohol, 1 test that was positive for THC[,] and 1 diluted test.” From January to March 2021, Mother had 4 missed call-ins and 2 missed tests. “In April 2021, Mother failed to test on 4 occasions, failed to call in on two occasions, and tested positive for methamphetamine” once. From May to August 2021, Mother was in the inpatient treatment facility, where she reportedly did very well. But upon leaving the facility, Mother “almost immediately returned” to live with the alleged father and “very quickly relapsed on methamphetamine.” Indeed, in “the short two months’ time from leaving treatment to the date of trial,” Mother “had 3 relapses and 5 methamphetamine uses.” Mother has not challenged these findings, and they support a finding that Mother was “unable or unwilling within a reasonable time to substantially correct the circumstances, conduct, or conditions that led to placement of [the Children] outside of [her] home.” Id.
¶54 Mother nevertheless argues that the court improperly took a “ ‘zero-tolerance’ approach” and failed “to in any way take into account Mother’s efforts and progress.” But the court didn’t take a zero-tolerance approach. Rather, the court concluded that Mother was unable or unwilling to substantially correct her drug use after making findings about Mother’s repeated use of methamphetamine, including specific findings about her use while pregnant and again in the few months between her inpatient treatment and the termination hearing. The court also didn’t fail to “take into account Mother’s efforts and progress.” In its order, the court acknowledged that Mother had “made significant progress with a number of requirements on the child and family plan” and that Mother had “successfully completed” the inpatient treatment program. But the court then found that Mother “very quickly relapsed on methamphetamine” after leaving the facility and that Mother was still “in active methamphetamine addiction and use.” In short, the court recognized Mother’s progress, but it nevertheless found that even with this progress, her ongoing methamphetamine use still demonstrated that she was either unwilling or unable to substantially correct her drug use.
¶55 Mother also argues that she didn’t “willfully refuse to deal with her drug issue, but rather really tried to stay clean.” But a court can find failure of parental adjustment based on a parent’s unwillingness or inability to “substantially correct the circumstances, conduct, or conditions that led to placement of [the] child outside of their home.” Id. In this sense, a parent’s unsuccessful efforts, even if sincere, might not be sufficient to prevent a finding of failure of parental adjustment if the behavior that led to the child’s removal is not substantially corrected. See id. As explained, the court’s finding that Mother was either unwilling or unable to substantially correct her drug use does not go against the clear weight of the evidence, given that Mother continued to miss tests and continued to test positive even while benefiting from reunification services, and given that she “very quickly relapsed on methamphetamine” after spending over three months at an inpatient treatment facility. In short, the evidence showed that Mother either could not stop using drugs because of addiction, in which case she was unable to substantially correct the behavior, or that she was choosing to not stop using drugs, in which case she was unwilling. Either way, the court’s finding did not go against the clear weight of the evidence.
¶56 Lastly, Mother contends that her relapses “should only be disqualifying if the relapse renders her incapable of taking care of her children.” For this proposition, Mother cites Utah Code subsection 80-4-302(2)(c), which states, “In determining whether a parent or parents are unfit or have neglected a child the juvenile court shall consider: … habitual or excessive use of intoxicating liquors, controlled substances, or dangerous drugs that render the parent unable to care for the child. …” See id. § 80-4-302(2)(c) (LexisNexis Supp. 2022). According to Mother, the court was only allowed to ground its termination decision in her drug use if it made specific findings that the drug use made her “unable to care” for the Children. See id.
¶57 But we have previously stated that the considerations listed under subsection 80-4-302(2) “apply to two specific grounds for termination under subsection [80-4-301(1)]—whether a parent is ‘unfit or incompetent’ pursuant to subsection [80-4-301(1)(c)], and whether a parent ‘has neglected or abused the child’ pursuant to subsection [80-4-301(1)(b)].” In re L.A., 2017 UT App 131, ¶ 33, 402 P.3d 69. This is because the statute only requires the juvenile court to take the listed considerations into account “[i]n determining whether a parent or parents are unfit or have neglected a child.” Utah Code Ann. § 80-4-302(2) (emphasis added). So under our controlling precedent, subsection 80-4-302(2) is inapplicable to the ground for termination at issue here, which is failure of parental adjustment. The court was thus not required to consider whether Mother’s drug use rendered her “unable to care for” the Children, and we need not consider Mother’s argument on that point. See id.; see also In re L.A., 2017 UT App 131, ¶ 33, 402 P.3d 69.
¶58 In short, there was sufficient evidence of Mother’s ongoing drug use, thereby also supporting the court’s finding that Mother was “unable or unwilling within a reasonable time to substantially correct the circumstances, conduct, or conditions that led to placement of [the Children] outside of their home.” Utah Code Ann. § 80-4-102(2). We are thus unconvinced that the court “failed to consider all of the facts” or that the court’s decision was “against the clear weight of the evidence.” In re E.R., 2021 UT 36, ¶ 7, 496 P.3d 58 (quotation simplified).
II. Best Interest
¶59 After finding that grounds for termination existed, the juvenile court determined that termination of Mother’s parental rights and adoption by the foster family was in the Children’s best interest. On appeal, Mother argues that there was not clear and convincing evidence that termination of Mother’s parental rights, as opposed to placement with Grandparents, was in the Children’s best interest. Relatedly, she asks us to “remand with instructions to the juvenile court to consider the viability of guardianship or other custodial arrangements with Grandmother.” We decline this request and instead affirm the juvenile court’s best interest determination.15
¶60 If a juvenile court determines that grounds for termination exist, the court must then consider whether termination is in the child’s best interest. See In re B.T.B., 2020 UT 60, ¶ 46, 472 P.3d 827; see also Utah Code Ann. § 80-4-103(2)(c) (explaining that a court should “consider the welfare and best interest of the child of paramount importance in determining whether to terminate parental rights”). This consideration should be directed by “two related pieces of important guidance” provided by our legislature. In re J.J.W., 2022 UT App 116, ¶ 27, 520 P.3d 38.
¶61 First, “[a] child’s need for a normal family life in a permanent home, and for positive, nurturing family relationships is usually best met by the child’s natural parents.” Utah Code Ann. § 80-4-104(8) (LexisNexis Supp. 2022). There is accordingly “a strong preference for families to remain together.” In re J.J.W., 2022 UT App 116, ¶ 27, 520 P.3d 38. Second, a court should terminate parental rights only when doing so is “strictly necessary” “from the child’s point of view.” Utah Code Ann. § 80-4-301(1); see also In re J.J.W., 2022 UT App 116, ¶ 28, 520 P.3d 38. Put differently, “termination must be strictly necessary to promote the child’s best interest.” In re B.T.B., 2020 UT 60, ¶ 60, 472 P.3d 827. Because this analysis occurs “from the child’s point of view,” “the court’s focus should be firmly fixed on finding the outcome that best secures the child’s well-being.” Id. ¶ 64.
¶62 When considering whether termination is strictly necessary, a juvenile court must consider, “among other relevant factors,” whether “efforts to place the child with kin who have, or are willing to come forward to care for the child, were given due weight.” Utah Code Ann. § 80-4-104(12)(b)(ii). Our supreme court has clarified that this part of the inquiry also requires courts to explore whether other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating parental rights. In some cases, alternatives will be few and unsatisfactory, and termination of the parent’s rights will be the option that is in the child’s best interest. But in other cases, courts should consider whether other less-permanent arrangements might serve the child’s needs just as well. In re B.T.B., 2020 UT 60, ¶ 67, 472 P.3d 827 (quotation simplified).16
¶63 Two of our recent cases shed light on how a court should consider kinship placements: In re A.H., 2022 UT App 114, 518 P.3d 993, and In re J.J.W., 2022 UT App 116, 520 P.3d 38.
¶64 In the first case, the State moved to terminate the rights of a mother and father to their seven children. In re A.H., 2022 UT App 114, ¶ 16, 518 P.3d 993. The juvenile court did not terminate the parents’ rights in the oldest five children, and those children were placed with their grandparents “under an order of permanent custody and guardianship.” Id. ¶ 21. But the court did terminate the parents’ rights in the youngest two children, and the court did so even though the grandparents were willing and able to care for those younger children. See id. ¶¶ 26, 29. The court’s decision regarding the younger children was based on its finding that it was in their best interest to be adopted by their foster family. Id. ¶ 29. We reversed on appeal, however, concluding “that the juvenile court’s best-interest determination was against the clear weight of the evidence presented at trial.” Id. ¶ 57. We did so because there was not clear and convincing evidence that terminating the parents’ rights in the younger children “was strictly necessary, especially given the presence of another available and acceptable option—permanent guardianship with [the grandparents], alongside their five siblings—that would not require permanent severance of familial bonds and that would serve the [younger children’s] best interest at least as well as adoption.” Id.
¶65 In the second case, a district court terminated a father’s parental rights after determining that it was in the child’s best interest to be adopted by his grandparents. In re J.J.W., 2022 UT App 116, ¶¶ 13, 16, 520 P.3d 38. On appeal, we held that the “court fell into legal error when it failed to expressly consider other apparent reasonable options short of termination that might serve [the child’s] best interest just as well.” Id. ¶ 37. More specifically, we concluded that “the court erred by failing to explain, on the record, why a permanent custody and guardianship arrangement” with the child’s grandparents “could not serve [the child’s] best interest, and why termination of [the father’s] parental rights—as opposed to imposition of a guardianship—was strictly necessary to further that interest.” Id. We accordingly vacated the termination order and remanded “the case for a renewed best-interest analysis.” Id.
¶66 From our review of these cases and the statutes that they interpreted, three principles emerge that matter here.
¶67 First, courts have an obligation to consider proposed kinship placements, and if a court rejects a kinship placement, it must give reasons on the record for doing so. See id. ¶ 32 (faulting a court for rejecting a kinship placement without explaining “why it rejected that option”); see also In re A.H., 2022 UT App 114, ¶ 37, 518 P.3d 993 (“Courts that order termination of parental rights without appropriately exploring feasible alternatives to termination have not properly applied the second part of the two-part termination test.” (quotation simplified)); In re B.T.B., 2020 UT 60, ¶ 74, 472 P.3d 827 (explaining that strict necessity “requires the court to find, on the record, that no other option can achieve the same welfare and best interest for the child” as termination).
¶68 Second, although there’s a statutory preference for kinship placements, and although courts must appropriately explore kinship placements as a result, courts that explore such options may then conclude, on the facts before them, that a different option is in fact in a child’s best interest. See In re A.H., 2022 UT App 114, ¶ 37, 518 P.3d 993 (“In some cases, alternatives will be few and unsatisfactory, and termination of the parent’s rights will be the option that is in the child’s best interest.” (quotation simplified)); see also In re J.J.W., 2022 UT App 116, ¶ 29, 520 P.3d 38 (same). On this, In re A.H. stands as something of an illustrative contrast. There, we explained that if “a completely appropriate kinship placement” exists, it “becomes significantly more difficult” to show that termination is strictly necessary. 2022 UT App 114, ¶ 49, 518 P.3d 993. And we accordingly reversed in that case because there were “no concerns” with the proposed kinship placement and there was accordingly not clear and convincing evidence that termination was strictly necessary. Id. ¶¶ 50, 57. But if a case presents itself in which a court does appropriately consider the proposed kinship options and yet concludes that those options are not completely appropriate based on valid concerns, the court could then reject the proposed kinship placement and find that termination is strictly necessary. See id. ¶ 37; see also In re B.T.B., 2020 UT 60, ¶ 66, 472 P.3d 827; In re J.J.W., 2022 UT App 116, ¶ 29, 520 P.3d 38.
¶69 Third, if a court has complied with its statutory obligations, its resultant best interest determination is entitled to deference. See In re J.J.W., 2022 UT App 116, ¶ 18, 520 P.3d 38; see also In re E.R., 2021 UT 36, ¶ 22, 496 P.3d 58. This is because the best interest determination “is a factually intense inquiry dependent on the unique circumstances and needs of each child.” In re E.R., 2021 UT 36, ¶ 22, 496 P.3d 58 (quotation simplified). Furthermore, “the juvenile court has a superior perspective in light of its view of the demeanor of both parents and children.” Id. ¶ 23. For these reasons, “we do not lightly reverse a court’s best-interests determination.” In re A.H., 2022 UT App 114, ¶ 38, 518 P.3d 993. But to be clear, a juvenile court’s determinations are not “afforded a high degree of deference”; rather, “the deference afforded to the juvenile court is the same level of deference given to all lower court findings of fact and fact-like determinations of mixed questions.” In re E.R., 2021 UT 36, ¶¶ 29–30, 496 P.3d 58. Accordingly, we will overturn a juvenile court’s decision “if it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” Id. ¶ 31 (quotation simplified). In In re J.J.W., for example, we remanded because the district court failed to consider whether a kinship placement could serve the child’s best interest. 2022 UT App 116, ¶ 37. And in In re A.H., we reversed where the juvenile court did consider the kinship placement but its decision went “against the clear weight of the evidence presented at trial.” 2022 UT App 114, ¶ 57, 518 P.3d 993.
¶70 With these principles in mind, we review the juvenile court’s best interest determination in this case and affirm.
¶71 First, unlike what occurred in In re J.J.W., the court here did “consider” and “discuss” the possibility of a kinship placement (namely, one with Grandparents). See 2022 UT App 116, ¶ 31, 520 P.3d 38. When Mother first requested that the Children be placed with Grandparents, the court denied that request because Step-Grandfather could not pass a background check. But the minutes for the hearing indicate that the court planned to “continue to work on placement clearance of” Grandparents. And the minutes from later hearings indicate that placement with Grandparents continued to be a topic of discussion among the parties and the court. Notably, the parties informed the court that although Step-Grandfather was able to get three of his LIS cases overturned, two could not be overturned because of their significance. In its termination order, the court documented this history, explaining that Step-Grandfather “did not pass the DCFS background check and, as a result, [Grandparents’] request for placement was denied.” The court explained further: “The denial was administratively appealed, which [Grandparents] lost. Thereafter, Mother … asked the Court to waive the failed background check and place the [Children] in [Grandparents’] direct custody. The Court denied this request after considering all of the information and argument from the parties.” And it later concluded that “due weight was given to possible kin placements, but they did not occur due to [Step-Grandfather] failing his background check.”
¶72 Despite all this, Mother argues that the court’s consideration was inadequate because the court did not further consider Grandparents’ apparent willingness to comply with a safety plan and Step-Grandfather’s offer to complete a sexual behavioral risk assessment. Relatedly, Mother points out “that Step-Grandfather worked out of the house six days a week” and thus claims “that his presence in Grandmother’s household would therefore be minimal.” But there is nothing in the record to suggest that the court didn’t consider this information. Rather, the record indicates that the court considered it but still concluded that Grandparents were an inappropriate placement given the import of Step-Grandfather’s LIS cases and background.
¶73 In short, the juvenile court repeatedly considered the possibility of placing the Children with Grandparents. It is thus clear to us that the court fully complied with its obligation to “appropriately explor[e]” whether they were an appropriate placement option. See In re A.H., 2022 UT App 114, ¶ 37, 518 P.3d 993.
¶74 Second, unlike what occurred in In re A.H., there were valid concerns in this case with Grandparents. See id. ¶ 50 (explaining that there were “no concerns” with the grandparents and that the juvenile court even found that they were “certainly appropriate caregivers”). As explained above, the juvenile court rejected Grandparents as a placement option because Step-Grandfather could not pass the DCFS background check due to his cases in the LIS. We see no basis for invalidating the court’s conclusion about the import of Step-Grandfather’s background.
¶75 If DCFS “makes a supported finding that a person committed a severe type of child abuse or neglect,” it enters “the name and other identifying information of the perpetrator with the supported finding” into the LIS. Utah Code Ann. § 62A-4a-1005(1)(b)(i) (LexisNexis Supp. 2021). A “supported finding” “means a finding by [DCFS] based on the evidence available at the completion of an investigation that there is a reasonable basis to conclude that abuse, neglect, or dependency occurred.” Id. § 62A-4a-101(42). If the alleged perpetrator is “18 years of age or older,” then “severe type of child abuse or neglect” means “chronic abuse,” “severe abuse,” “sexual abuse,” “sexual exploitation,” “abandonment,” “chronic neglect,” or “severe neglect.” Id. § 62A-4a-1002(1)(i) (2018). If the alleged perpetrator is “under the age of 18,” then “severe type of child abuse or neglect” means “serious physical injury, as defined in Subsection 76-5-109(1), to another child which indicates a significant risk to other children” or “sexual behavior with or upon another child which indicates a significant risk to other children.” Id. § 62A-4a-1002(1)(ii).17
¶76 As part of this process, DCFS must “serve notice of the finding on the alleged perpetrator.” Id. § 62A-4a-1005(1)(a) (Supp. 2021). The alleged perpetrator may then “file a written request asking [DCFS] to review the findings made,” “immediately petition the juvenile court under Section 80-3-404,” or “sign a written consent to … the supported finding” and entry in the LIS. Id. § 62A-4a-1005(3)(a). DCFS must remove an alleged perpetrator’s name and information from LIS “if the severe type of child abuse or neglect upon which the [LIS] entry was based: (A) is found to be unsubstantiated or without merit by the juvenile court under Section 80-3-404; or (B) is found to be substantiated, but is subsequently reversed on appeal.” Id. § 62A-4a-1005(e)(i). A finding is “substantiated” if a juvenile court determines “based on a preponderance of the evidence that abuse or neglect occurred.” Id. § 62A-4a-101(40).
¶77 Mother is correct that the record does not include the underlying facts of the LIS cases, and it may have been helpful for the analyses of both the juvenile court and our court if such information had been provided below. Nevertheless, the record is still sufficiently clear on several key things. One is that Step-Grandfather at one point had five cases in the LIS. These cases would have necessarily required a finding from DCFS that Step-Grandfather committed “a severe type of child abuse or neglect.” Id. § 62A-4a-1005(1). Another is that DCFS made efforts to help Step-Grandfather get the cases overturned, that three of the cases were overturned, but that two cases were still upheld because they were “of such significance that they cannot be overturned.”18 And finally, Grandmother’s proffered testimony was that there “was a successful reunification” in at least one of those cases, which meant that, whatever it was, the conduct at issue was serious enough that Step-Grandfather’s own children had been removed from his custody at some point.
¶78 We simply cannot fault the juvenile court for finding that it was not in the Children’s best interest to be placed in a home with somebody who, despite having tried to be removed from the LIS, nevertheless remained in the LIS based on two prior cases that were “of such significance that they cannot be overturned.” See In re J.P., 2021 UT App 134, ¶¶ 11, 20–23, 502 P.3d 1247 (upholding a juvenile court’s determination that placement with relatives was inappropriate where one member of the household had a “history of violence”). Indeed, beyond the obvious safety concerns raised by the LIS cases, we further note some legislative support for the court’s assessment of their significance to the question before it. By statute,a person who is listed in the LIS “may be disqualified from adopting a child, receiving state funds as a child care provider, or being licensed by” DCFS. Utah Code Ann. § 62A-4a-1005(2)(a)(v). While Mother points out that a kinship placement is not precisely the same thing as an adoption or being licensed by DCFS, this statute still evidences the legislature’s conclusion that placement on the LIS should result in some restriction of a person’s ability to have sustained access to children. Given this, we don’t see why a juvenile court couldn’t likewise conclude that there is good reason to not place children in the care of someone who is listed in the LIS.
¶79 Mother nevertheless contends that the facts underlying the LIS cases could have been fairly benign and therefore an invalid basis for not placing the Children with Grandparents. But if that were true, Step-Grandfather could have testified at the termination hearing, provided more information, and thus explained to the court himself why the LIS cases shouldn’t preclude placement. But he didn’t. Because of this, what the court was left with was that Step-Grandfather still had LIS cases that were based on a finding that he committed “a severe type of child abuse or neglect,” and that almost eighteen months after learning that these cases could prevent placement, two of the cases were still in the LIS because of their significance. Given all this, we decline to fault the court for not delving deeper into evidence that Mother could have provided but didn’t.19
¶80 Third and finally, given the court’s consideration of Grandparents and the information that it received throughout the proceedings and then noted in its order, we defer to its ultimate conclusion that although there was a potential kinship option, termination was in the Children’s best interest. See In re E.R., 2021 UT 36, ¶ 22, 496 P.3d 58. As explained above, DCFS found that Step-Grandfather committed “a severe type of child abuse or neglect” and that two of the cases could not be overturned because of their significance. Faced with those facts, the juvenile court could and indeed did validly conclude that placement with Grandparents would be “unsatisfactory,” In re B.T.B., 2020 UT 60, ¶ 67, 472 P.3d 827 (quotation simplified), and not “acceptable,” In re A.H., 2022 UT App 114, ¶ 49, 518 P.3d 993.
¶81 Having properly rejected the proposed kinship placement, the court then explained why adoption was in the Children’s best interest. It found that the Children had “thrived in the care of the foster parents” and “formed a strong familial bond with the foster parents and look to the foster parents as their natural parents.” The court also explained that N.W. has a rare chromosomal syndrome and that the foster parents have spent time researching the condition and learning how to best care for N.W. And with respect to the Children, the court found that the foster parents “treated [the Children] as their own” and “tailored their lives so that one of their primary objectives is to provide for the needs and safety of” the Children. These findings amply demonstrate that adoption by the foster parents was indeed a viable and positive option for the Children.
¶82 Given the findings detailed above, Mother has not persuaded us that the court “failed to consider all of the facts” or that it “considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” In re E.R., 2021 UT 36, ¶ 7, 496 P.3d 58 (quotation simplified). We accordingly decline to disrupt the court’s determination that it was in the Children’s best interest to be adopted by their foster family and that termination of Mother’s parental rights was strictly necessary to achieve that outcome.
CONCLUSION
¶83 The court’s finding that grounds for termination existed was not against the clear weight of the evidence, nor was its determination that terminating Mother’s parental rights was strictly necessary to promote the Children’s best interest. The decision below is accordingly affirmed.
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1 When the Twins were born, Mother was living with the Children’s alleged father. The alleged father participated throughout the proceedings, and at the close of the same termination proceeding at issue in this appeal, the juvenile court terminated his rights, if any, in the Children. In a separate appeal, this court upheld that decision based on the alleged father’s failure to establish paternity. See Order, Case No. 20210915-CA (Feb. 18, 2022).
Mother was married to another man when each of the Children were born. This made him their presumptive father under the Utah Uniform Parentage Act. See Utah Code Ann. § 78B-15-204(1)(a) (LexisNexis 2018). But although this man was properly served, he never appeared. The juvenile court thus determined that he had abandoned the Children and terminated his parental rights as well. That portion of the court’s order is not at issue in this appeal.
2 The Management Information System “contain[s] all key elements of each family’s current child and family plan” and “alert[s] caseworkers regarding deadlines for completion of and compliance with policy, including child and family plans.” Utah Code Ann. § 62A-4a-1003(3)(a), (b) (LexisNexis Supp. 2021).
Effective September 1, 2022, several sections relevant to the LIS were repealed and renumbered. Compare id. §§ 62A-4a-101, -1005, -1006, with id. §§ 80-2-102, -708, -1002 (Supp. 2022). We cite to the versions in effect at the time of the termination hearing.
3 Although not entirely clear from the record, it appears that it was DCFS that administratively overturned three of the LIS cases against Step-Grandfather. See generally Utah Code Ann. § 62A-4a-1005(3)(i) (explaining that “the alleged perpetrator” may “file a written request asking [DCFS] to review the findings made”).
4 The Children were initially placed in the care of a foster mother. When the foster mother was no longer able to care for all the Children, the Twins went to live with another foster family. In either April or May 2020, all the Children went to live with a new foster family, where they remained through the duration of the proceedings.
5 The termination decision at issue in this appeal applied only to Mother’s parental rights in the Children. But because the juvenile court’s decision in this case was partly based on Mother’s choices while pregnant with A.W., we include those relevant facts.
6 Unless a statutory exception applies, “the juvenile court may not extend reunification services beyond 12 months after the day on which the minor is initially removed from the minor’s home.” Utah Code Ann. § 80-3-409(6) (LexisNexis Supp. 2022). As the juvenile court later explained in its termination decision, Mother was provided with separate reunification services with respect to A.W., so she was provided “ ‘additional’ services and ‘additional’ time to remedy the safety concerns that brought the [Children] in this matter into DCFS custody.”
7 The supervised visits occurred at either a DCFS office or a park, but the DCFS caseworkers periodically made visits to Mother’s home.
8 Grandmother, whose testimony was offered via proffer, would have testified that Mother had planned to move in with her after leaving the inpatient treatment facility, that there was room for Mother to move in, but that Mother never came to live with her.
9 “PrimeTime 4 Kids is an early intervention program serving children 0–2 and their families. … Early intervention is a federally mandated program that is established to help children 0–2 with developmental disabilities.” PrimeTime 4 Kids, https://primetime4kids.org/ [https://perma.cc/HC8T-U7GF].
10 The alleged father also testified, but his testimony was relevant to his asserted parental rights, which are not at issue in this appeal.
11 The juvenile court judge that presided over the termination hearing was new to the case.
12 Because there have been no material changes to the relevant statutory provisions, we cite the current version unless otherwise noted.
13 The court also found that “one of Mother’s cousins expressed a desire to have the [Children] placed with her; however, the cousin never filled out the required background check.” Mother has not challenged this aspect of the court’s ruling.
14 The juvenile court found that DCFS made reasonable efforts to return the Children to Mother. It also found that Mother received “ ‘additional’ services and ‘additional’ time” due to A.W.’s birth. Mother did not challenge those findings below or on appeal.
15 In her briefing, Mother seems to separately argue that the Children should have been placed with Grandmother alone, even if Step-Grandfather was not a good placement option. But the court’s order, as well as minute entries from prior hearings, indicate that Mother and Grandparents collectively requested that the court place the Children with Grandmother and Step-Grandfather together. Regardless, even if the request was that the Children be placed with only Grandmother, it was still appropriate for the court to consider Step-Grandfather’s background since he lived with Grandmother. Cf. In re J.P., 2021 UT App 134, ¶¶ 11, 20–23, 502 P.3d 1247 (affirming a juvenile court’s determination that a placement was inappropriate where one member of the household had a “history of violence”).
16 Our supreme court was writing generally about the strict necessity requirement and not specifically about the kinship inquiry. But we take its analysis to apply to the kinship inquiry, which is, after all, a part of strict necessity. See In re J.J.W., 2022 UT App 116, ¶ 29 (applying this language to the kinship inquiry); In re A.H., 2022 UT App 114, ¶ 37, 518 P.3d 993 (same).
17 Section 62A-4a-1002 has been repealed. See In re A.C., 2022 UT App 121, ¶ 6 n.6, 521 P.3d 186. The definition of “severe type of child abuse or neglect” can now be found in Utah Code section 80-1-102(78)(a) (LexisNexis Supp. 2022).
18 The State claimed that one of the cases involved sexual abuse, but Grandmother would have testified that the cases were “not … for any form of sexual abuse.” Our resolution of this issue does not turn on whether the cases involved sexual abuse, so we need not resolve this dispute.
19 At oral argument, Mother suggested that Step-Grandfather couldn’t have testified about the cases because they happened long ago and “he didn’t know” what the cases were about. If it were true that Step-Grandfather didn’t remember the underlying facts of the cases, he could have requested information from DCFS. See Utah Code Ann. § 62A-4a-1006(4)(c)(ii)(B) (explaining that DCFS can access the LIS to “respond to a request for information from a person whose name is listed in” the LIS).
A.H., J.H., J.H., L.H., N.H., S.H., AND E.H., PERSONS UNDER EIGHTEEN YEARS OF AGE.
N.J.H. AND S.H., Appellants, v. STATE OF UTAH, Appellee.
Opinion
Nos. 20210353-CA and
20210354-CA
Filed October 6, 2022
Fourth District Juvenile Court, Provo Department
The Honorable Suchada P. Bazzelle No. 1145453
Alexandra Mareschal, Attorney for Appellant N.J.H.
Kirstin H. Norman, Attorney for Appellant S.H.
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
JUDGE RYA N M. HARRIS authored this Opinion, in which
JUDGE DAVID N. MORTENSEN and SENIOR JUDGE KATE APPLEBY concurred.[1]
HARRIS, Judge:
¶1 After a bench trial, the juvenile court terminated S.H.’s (Mother) and N.J.H.’s (Father) (collectively, Parents) parental rights regarding the two youngest of their seven children: A.H. and L.H. (the Subject Children). The court did not terminate Parents’ rights regarding their other five children; it accepted the parties’ stipulation that the best interest of those children would be served by placing them in a guardianship with relatives. But despite those same relatives being willing to take and care for (by either adoption or guardianship) the Subject Children as well, the court determined that the Subject Children’s best interest would be served by termination of Parents’ rights and adoption by their foster parents. In separate appeals that we consider together in this opinion, Parents challenge that decision, asserting that termination of their rights was neither strictly necessary nor in the best interest of the Subject Children. We agree and reverse.
BACKGROUND
¶2 Mother and Father are the parents of seven children (the Children), each born approximately two years apart. The eldest (E.H.) was born in 2005, and the two youngest (A.H. and L.H.) were born in February 2015 and December 2016, respectively. Mother is the biological parent of all seven of the Children. Father is the biological parent of the six youngest Children and the legal parent of all of them; he adopted E.H. when E.H. was an infant. Mother and Father met in New Mexico, which is where the parents of E.H.’s biological father (Grandparents) live.[2] Parents moved to Utah, with the Children then born, in 2007.
¶3 Over the years, Grandparents developed a close relationship not only with E.H.—their biological grandson—but with the other Children as well. They made trips to Utah on at least an annual basis during which they spent time with the Children, and they engaged in regular telephonic contact as well. After L.H. was born in 2016, he required a lengthy stay in the newborn intensive care unit, and Grandmother took three weeks off from her job as a nurse to come to Utah and help.
¶4 In June 2017, the Division of Child and Family Services (DCFS) filed a petition for protective supervision, asserting that Father had physically abused N.H., one of the older sons, and that L.H.—who was then just a few months old—was malnourished and failing to thrive. DCFS’s plan, at that point, was to leave the Children in the home and provide supportive services. After adjudicating N.H. abused as to Father and the other Children neglected as to Father, the juvenile court granted DCFS’s requested relief and ordered that Father have only supervised contact with the Children. For the time being, the Children remained in the home under Mother’s care.
¶5 In August 2017, however, DCFS filed a petition seeking custody of the Children, citing not only the issues raised in its previous petition but also a more recent incident involving Mother and L.H. In response to a report of reckless driving, police found Mother slumped over the steering wheel of her parked car with L.H. in the backseat, and a search of the vehicle turned up several prescription medications in a container not intended for prescriptions, as well as a red straw with “white powder” inside it. Police arrested Mother on suspicion of, among other things, impaired driving; she was later able to provide prescriptions for all the medications found in the car.
¶6 After a hearing, the court granted DCFS’s requested relief and placed the Children in the temporary custody of DCFS. The Children were removed from Mother’s care later that same day and, when caseworkers went to the home to effectuate the court’s order, they observed Mother “wobbling back and forth” and having “a hard time keeping her eyes open.” Initially, DCFS caseworkers—with Mother’s agreement—arranged a safety plan in which Mother would leave the home and the Children would stay there, in their familiar environment, cared for by Mother’s brother. But Mother knowingly failed to follow that plan, and returned to the home without permission two days later. As a result of Mother’s actions, DCFS removed the Children from the home and placed them in a group home for children.
¶7 But that placement was temporary, and DCFS eventually needed to move the Children to foster care placements. But because no available foster care placement could accommodate all seven Children, DCFS found it necessary to split the Children up into three different placements. The oldest two were placed in one foster home, the next three in a second, and the Subject Children in a third. Three months later, the oldest two were placed with a paternal aunt. For almost a year, the seven Children were separated into these three groups, and the different groups saw each other only during Parents’ supervised parent-time; they were sometimes permitted to call each other, but DCFS did not facilitate any in-person sibling visitation during this period.
¶8 At later hearings, the juvenile court adjudicated the children neglected as to Mother. The court noted L.H.’s “failure to thrive” and the incident involving the parked car, as well as Mother’s criminal history—which involved both drug crimes and retail theft—and her “history of mental health issues that [could] place the [C]hildren at risk of harm.” Despite these concerns, however, the goal remained reunification and, over the ensuing months, Parents complied with the court’s direction well enough that, by July 2018, the family was able to reunify in the home. For the next nine months, the family was together—for the most part[3]—and doing reasonably well, and DCFS anticipated that it might be able to close the case in the spring of 2019. But three events occurred in early 2019 that prompted DCFS to reconsider.
¶9 First, in March 2019, Father injured two of the older Children, and DCFS made a supported finding of physical abuse by Father. In the wake of this incident, and in an effort to avoid a second removal of the Children from the home, Father agreed to move out and to have only supervised visits with the Children. When caseworkers visited the home following Father’s departure, they became concerned about Mother’s ability to care for the Children on her own; in particular, caseworkers observed several incidents in which Mother left the younger Children unattended.
¶10 Second, in late April 2019, police were called to the home at 1:54 a.m. and found L.H., then just two years old, alone in the family car, which was parked in front of the house. Mother explained that she had been out shopping, gotten home late, and then taken a phone call while L.H. was still out in the car asleep.
¶11 Third, in early May 2019, Mother had an encounter with police while in her car at a fast-food restaurant. Officers observed Mother responding quietly and slowly to questions, and they discovered in the car a plastic bag and an unlabeled prescription bottle containing pills later identified as controlled substances. In addition, officers found a razor blade with white residue and a rolled-up dollar bill in the vehicle, evidence that suggested Mother had been misusing the drugs. Mother passed a field sobriety test, and officers later determined that she had valid prescriptions for the pills.
¶12 Following these incidents, DCFS filed a new petition, again seeking to remove the Children from the home and place them in state custody. The juvenile court again adjudicated the Children abused and neglected as to each Parent, and again placed them into the custody of DCFS. The Children were extremely emotional when they learned of the court’s order removing them from the home for a second time; in fact, officials even had to use physical force to restrain two of the older sons when the time came to take them into custody. This time, the seven Children were sent to four placements: one of the older sons was placed in a short-term behavioral health facility because of his aggressive behavior during the removal; two of the older sons were placed together; and the two next-oldest sons and the Subject Children were returned to their respective previous foster placements. Just a few weeks later, six of the Children—all but the oldest—were placed together with a single foster family in a different county, but this short reunion lasted only about two months.
¶13 In August 2019, with the school year approaching, Parents requested that the Children be returned to Utah County, a request that again required the Children to be split up. This time, the two oldest were placed together; the next three were placed together in a new placement; and the Subject Children were—for the first time—placed with the family (the Foster Family) who now wishes to adopt them.[4] The Subject Children bonded very quickly with Foster Family, calling the parents “mom and dad” within just a few weeks of being placed with them. Still, the primary goal remained reunification, and the court ordered additional reunification services. However, DCFS still did not facilitate any sibling visitation, but “left that mostly up to [the] foster parents.” Although the foster families initially managed “a few meet-ups on their own,” these efforts diminished over time, despite the absence of any indication that the Children—including the Subject Children—did not want to see each other.
¶14 At a court hearing in July 2019, shortly after the second removal, Mother’s attorney requested that Grandparents—who were and remain willing to take all seven of the Children—be considered as a possible placement. The court was open to this suggestion but, because Grandparents reside in New Mexico, the court ordered DCFS to “initiate an ICPC[5] as to” Grandparents. But DCFS delayed acting upon the court’s order for nearly four months, until late October 2019. DCFS attributed the delay, in part, to inadvertence related to a caseworker switch that was occurring right then, but the new caseworker later testified that her “understanding” of the situation was that DCFS “made a decision not to proceed” with the ICPC process “because reunification services were still being offered.” Owing at least in part to the four-month delay in getting it started, the ICPC report was still not completed by the beginning of the eventual termination trial in October 2020. On the third day of trial, a DCFS witness explained that New Mexico had just finished its end of the process and had given its “approval” the day before, and that DCFS had filled out its final form the night before.
¶15 The ICPC report, when it was finally completed, raised no concerns with regard to Grandparents, and concluded that their home would be an appropriate placement for the Children. Indeed, one of the DCFS caseworkers testified at trial that she had “no concerns directly about [Grandparents] and their ability to be a safe home.” But none of the Children were actually placed with Grandparents until October 2020, due in large part to the delays associated with completion of the ICPC report.
¶16 For several months following the second removal of the Children from the home, the primary permanency goal remained reunification, and DCFS continued to provide reunification services to the family. But in the fall of 2019, after yet another substance use incident involving Mother, DCFS became dissatisfied with Parents’ progress and asked the court to change the primary permanency goal. At a hearing held at the end of October 2019, the court agreed, terminated reunification services, and changed the primary permanency goal to adoption with a concurrent goal of permanent custody and guardianship. A few weeks later, the State filed a petition seeking the termination of Parents’ rights with regard to all seven Children.
¶17 The court originally scheduled the termination trial to occur at the end of February 2020, but the State requested a continuance because it was working on placing the Children with Grandparents, was waiting for the ICPC report, and wanted “to ensure [that] the Grandparents kn[ew] what they [were] getting into.” The court granted the State’s requested continuance and rescheduled the trial for the end of March 2020. On March 12— the day before all “non-essential” court hearings in Utah were postponed by administrative order[6] due to the emerging COVID19 pandemic—all parties filed a stipulated motion asking that the trial be postponed yet again because there was “an ICPC request pending approval” and it was “highly anticipated by all parties that the results of the ICPC [would] resolve all issues pending before the Court.” The court granted the stipulated motion and continued the trial, but did so without date because the termination trial was deemed “to be a non-essential hearing.” Eventually, after the COVID-related administrative order was amended to allow some non-essential hearings to go forward, the court rescheduled the trial for October 2020, to take place via videoconference.
¶18 In the meantime, despite the fact that the ICPC report was not yet completed, the five oldest Children visited Grandparents in New Mexico for several weeks during the summer of 2020. DCFS did not allow the Subject Children to participate in that visit, not based on any concern about Grandparents’ ability to provide appropriate care for them, but because caseworkers believed that such a lengthy visit away from Foster Family would be “scary and upsetting” to the Subject Children.
¶19 During this time, the parties and their attorneys were preparing for trial. From the beginning of the case, Parents had each been provided with a court-appointed lawyer (collectively, Appointed Counsel) to represent them. But toward the end of July 2020, Parents asked a private lawyer (Private Counsel) to represent them at trial.[7] Private Counsel agreed, and Parents paid him a retainer. Parents informed Private Counsel of upcoming pretrial disclosure deadlines, and even gave him a list of fifteen witnesses Parents wanted to call at trial; Private Counsel told them that he would file the appropriate documents and that they did not need to contact their Appointed Counsel. Eventually, Parents discovered that no pretrial disclosures had been made and no motions for extensions of the deadlines had been filed.
¶20 The trial was finally held in October 2020. The first day was spent solely trying to clear up confusion about who was representing Parents. Appointed Counsel appeared for trial, but they indicated that they were unprepared to proceed given the lack of communication from Parents over the weeks leading up to trial. Private Counsel appeared as well, even though he had not filed a notice of appearance, and requested that the trial be continued. The court—not knowing the full picture of what had happened behind the scenes with Parents’ attempts to change counsel—chastised Private Counsel for the “very, very late notice and request” and denied the continuance, expressing concern that eleven months had already passed since the trial had originally been set. The court then recessed for the day to allow the parties to confer and negotiate about possible permanency options short of termination of Parents’ rights.
¶21 Those negotiations bore fruit, at least in part. With Private Counsel assisting Parents, the parties were able to reach a stipulation that it was in the best interest of the oldest five Children to be placed with Grandparents under an order of permanent custody and guardianship. But the parties were unable to reach a similar stipulation with regard to the Subject Children, and therefore the trial went forward as to them. At that point, Private Counsel withdrew from representing Parents, leaving Appointed Counsel to handle the trial even though they had not—given the lack of communication with Parents—made many of the usual preparations for a trial.
¶22 In support of its case, the State presented testimony from four DCFS caseworkers, two therapists, Mother’s former and current probation officers, and the mother from the Foster Family (Foster Mother). Foster Mother testified that the Subject Children had developed a strong bond with Foster Family and “love[d] spending time with [them].” She also stated that the Subject Children refer to her three children as “their brother and sisters,” that “[n]obody is ever left out amongst the kids,” and that L.H. “believes he is part of [their] family” and “has said, on multiple occasions, that he’s already adopted.” The two therapists testified that the Subject Children did indeed have a strong bond with Foster Family; one of them stated that it was “the most secure attachment [she had] ever witnessed . . . between a foster parent and a foster child,” and offered her view that it would be “hugely devastating” for them if they were removed from Foster Family.
¶23 Several of the caseworkers testified about the strength of the bond between the Subject Children and their older siblings, and they painted a picture in which those bonds were originally very strong but had begun to weaken over time as the Subject Children spent less time with their siblings and became more attached to Foster Family. One of the first caseworkers to work with the family testified that the bonds had been strong among all the Children, including the Subject Children. Another testified about how emotional the older children were upon learning that they were to be removed from the home a second time and again separated from most of their siblings. But another caseworker— who had been assigned to the family in 2019—testified that the Subject Children’s bond to their older siblings was weakening as they became more attached to Foster Family. In general, the caseworkers voiced concerns about separating siblings, offering their view that ordinarily “children should stay together” and that placing siblings together “is understood under most circumstances . . . to be beneficial to the kids.”
¶24 Parents were prohibited from introducing many of their witnesses because they had failed to make their required pretrial disclosures. In particular, Parents were prepared to call one of the Subject Children’s former foster parents as well as some of the older Children, who would each have apparently testified that the bonds between the Subject Children and their siblings had been, and still remained, very strong. But the court refused to allow Parents to call these witnesses because they had not been timely disclosed. The court did, however, allow Parents to offer testimony of their own, and to call Grandparents to testify.
¶25 For their part, Parents testified about how closely bonded the Children had been before DCFS became involved. Father testified that the older siblings had expressed a desire to all be together and noted that, if they were placed with Grandparents, the Subject Children would not only be with siblings, but also with cousins, and would have a large network of familial support. Mother testified that she, too, wanted the Children to be kept together and stated that she knew she was “not what [the Children] deserve” “right now,” but offered her view that, at some point in the future, after she has “[gotten] [her]self together,” she “willbe what’s best for them.”
¶26 Grandfather testified that he and Grandmother told DCFS, right from the start, that they were willing to take all seven children. He explained that they were accustomed to large families, having raised eight children of their own; he noted that two of those children lived nearby, meaning that the Children, if they lived with him, would have aunts, uncles, and cousins in the vicinity. Grandfather testified that he and Grandmother had renovated their house to accommodate all seven children and that they were able, financially and otherwise, to take on the responsibility. He acknowledged that raising seven children was not how he had originally envisioned spending his retirement years, but he offered his view that “no matter what else I could be doing in the next ten or twenty years,” what mattered most to him was “that [he] could be doing something to make a difference in the lives of these kids.” Grandmother testified that she had bonded with A.H. during her three-week stay with the family after L.H. was born, and she offered her view that it had been difficult to get Foster Mother to facilitate telephonic or virtual visits between the older siblings and the Subject Children during the older siblings’ summer 2020 visit to New Mexico.
¶27 After trial, the court took the matter under advisement for six months, issuing a written decision in May 2021. In that ruling, the court terminated Parents’ rights as to A.H. and L.H. It found sufficient statutory grounds for termination of Parents’ parental rights, including Father’s physical abuse of some of the older sons, Parents’ neglect of L.H. when he was malnourished and failing to thrive as an infant, and neglect of the Children for failing to protect them from Mother’s substance use. Similarly, the court found that Mother had neglected the Children by failing to properly feed L.H., insufficiently supervising the Subject Children, and improperly using drugs. Moreover, the court found that Mother’s “substance abuse and criminal behavior” rendered her unfit as a parent.
¶28 The court next found that DCFS had made “reasonable efforts towards the permanency goal of reunification.” It noted that DCFS has been involved with the family since April 2017 and, “during the arc of the case, circumstances changed frequently and there were many setbacks in the attempts to reunify the children with the parents.” The court concluded that “reunification efforts were not successful through no fault of DCFS.”
¶29 Finally, as to best interest, the court determined—in keeping with the parties’ stipulation—that, with regard to the oldest five siblings, “a permanent custody and guardianship arrangement” with Grandparents “would serve their best interests as well as, or better than, an adoption would.” But the court saw it differently when it came to the Subject Children, concluding that their best interest would be best served by the facilitation of an adoption by Foster Family, and that termination of Parents’ rights was strictly necessary to advance that interest. The court reached that decision even though it meant permanently separating the Children, and even though the court acknowledged that Grandparents were “certainly appropriate caregivers.” The court offered several reasons for its decision. First, it noted that the Subject Children were very young—A.H. was two-and-a-half years old, and L.H. was eight months old, when they were first removed from the family home—and that, as a result, they “had a very short time to be with their older siblings.” Second, the court concluded that the strength of the bond between the Subject Children and their siblings was not particularly strong, opining that the Subject Children “have little beyond a biological connection” to their siblings. In this vein, the court downplayed any positive effects that might come from keeping the Children together, describing the older siblings as “a large and unruly group” that “cannot be depended upon to protect” the Subject Children. Third, the court discussed the unquestionably strong bond that the Subject Children had formed with Foster Family. Fourth, the court concluded that disruption of the Subject Children’s “placement at this time would be very detrimental” and would “put them at unnecessary risk for future emotional and mental health issues.” Fifth, the court expressed concern that, absent termination, Parents would retain some level of parental rights and might attempt “to regain custody of the [C]hildren in the future,” an eventuality the court believed would “pose a risk to” the Subject Children. And finally, the court emphasized the importance of stability, stating that “the [Subject Children] and [Foster Family] deserve, and indeed need, the highest level of legal protection available, which would be achieved through adoption.” For these reasons, the juvenile court terminated Parents’ rights with regard to the Subject Children.
ISSUE AND STANDARD OF REVIEW
¶30 Parents now appeal the juvenile court’s order terminating their parental rights, but their appeal is narrowly focused. Parents do not challenge the juvenile court’s determination that statutory grounds exist for terminating their parental rights. However, Parents do challenge the court’s determination that termination of their parental rights was strictly necessary and in the best interest of the Subject Children. We review a lower court’s “best interest” determination deferentially, and we will overturn it “only if it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” In re E.R., 2021 UT 36, ¶¶ 22, 31, 496 P.3d 58 (quotation simplified). But “such deference is not absolute.” Id. ¶ 32. We do not afford “a high degree of deference” to such determinations; rather, we simply apply “the same level of deference given to all lower court findings of fact and ‘fact-like’ determinations of mixed questions.” Id. ¶¶ 29–30. In addition, our deference must be guided by the relevant evidentiary standard applicable in termination of parental rights cases: the “clear and convincing” evidence standard. SeeIn re G.D., 2021 UT 19, ¶ 73, 491 P.3d 867. “Although we defer to juvenile courts’ [best-interest] determinations, in reviewing their conclusions we do so with an exacting focus on the proper evidentiary standard,” and “we will not only consider whether any relevant facts have been left out but 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.[8]
ANALYSIS
¶31 The right of parents to raise their children is one of the most important rights any person enjoys, and that right is among the fundamental rights clearly protected by our federal and state constitutions. SeeTroxel v. Granville, 530 U.S. 57, 65–66 (2000) (stating that “the interest of parents in the care, custody, and control of their children” is “perhaps the oldest of the fundamental liberty interests” the court recognizes); see alsoIn re J.P., 648 P.2d 1364, 1372 (Utah 1982) (“A parent has a fundamental right, protected by the Constitution, to sustain his relationship with his child.” (quotation simplified)). Our legislature has expressed similar sentiments, declaring that “[u]nder both the United States Constitution and the constitution of this state, a parent possesses a fundamental liberty interest in the care, custody, and management of the parent’s child,” see Utah Code Ann. § 80-4-104(1) (LexisNexis Supp. 2022), and that this interest “does not cease to exist simply because . . . a parent may fail to be a model parent,” id. § 80-4-104(4)(a)(i).
¶32 The “termination” of these fundamental “family ties . . . may only be done for compelling reasons.” Seeid. § 80-4-104(1). Under our law, a parent’s rights are subject to termination only if both parts of a two-part test are satisfied. First, a court must find that one or more statutory grounds for termination are present; these include such things as abandonment, abuse, or neglect. See id. § 80-4-301(1). Second, a court must find that termination of the parent’s rights is in the best interest of the children. See In re B.T.B., 2020 UT 60, ¶¶ 19–20, 472 P.3d 827. The party seeking termination of a parent’s rights bears the burden of proof on both parts of this test. SeeIn re G.D., 2021 UT 19, ¶ 43, 491 P.3d 867 (stating that “petitioners in termination proceedings must prove termination is warranted”). And that party must make this required showing “by clear and convincing evidence.” Id.; see alsoSantosky v. Kramer, 455 U.S. 745, 769–70 (1982) (concluding that the U.S. Constitution requires application of a “clear and convincing evidence” standard in parental termination proceedings).
¶33 As noted, Parents do not challenge the juvenile court’s determination that statutory grounds for termination exist in this case. Their challenge is limited to the second part of the test: whether termination of their rights is, under the circumstances presented here, in the best interest of the Subject Children.
¶34 “The best interest of the child has always been a paramount or ‘polar star’ principle in cases involving termination of parental rights,” although it is not “the sole criterion.” In re J.P., 648 P.2d at 1368. The assessment of what is in a child’s best interest is, by definition, “a wide-ranging inquiry that asks a court to weigh the entirety of the circumstances” surrounding a child’s situation, including “the physical, intellectual, social, moral, and educational training and general welfare and happiness of the child.” SeeIn re J.M., 2020 UT App 52, ¶¶ 35, 37, 463 P.3d 66 (quotation simplified). Because children inhabit dynamic environments in which their “needs and circumstances” are “constantly evolving,” “the best-interest inquiry is to be undertaken in a present-tense fashion,” as of the date of the trial or hearing held to decide the question. SeeIn re Z.C.W., 2021 UT App 98, ¶¶ 12–13, 500 P.3d 94 (quotation simplified).
¶35 Our legislature has provided two related pieces of important guidance on the best-interest question. First, it has expressed a strong preference for families to remain together, establishing something akin to a presumption that a child’s best interest will “usually” be served by remaining with the child’s parents:
It is in the best interest and welfare of a child to be raised under the care and supervision of the child’s natural parents. A child’s need for a normal family life in a permanent home, and for positive, nurturing family relationships is usually best met by the child’s natural parents.
Utah Code Ann. § 80-4-104(8). In that same statutory section, our legislature also emphasized that, “[w]herever possible, family life should be strengthened and preserved.” Seeid. § 80-4-104(12). And the “family” includes the child’s parents as well as the child’s siblings; indeed, in the related child custody context, our legislature has specifically identified “the relative benefit of keeping siblings together” as a factor that the court “may consider” when evaluating “the best interest of the child.” Seeid. § 30-3-10(2)(o) (LexisNexis 2019).[9]
¶36 Second, our legislature has mandated that termination of parental rights is permissible only when such termination is “strictly necessary.” Seeid. § 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.” SeeIn re B.T.B., 2020 UT 60, ¶ 60. Indeed, a court’s inquiry into the strict necessity of termination should take place as part of the bestinterest inquiry that comprises the second part of the termination test. Seeid. ¶ 76 (stating that, “as 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”).
¶37 In assessing whether termination is strictly necessary to promote a child’s best interest, courts “shall consider” whether “sufficient efforts were dedicated to reunification” of the family, and whether “the efforts to place the child with kin who have, or are willing to come forward to care for the child, were given due weight.” See Utah Code Ann. § 80-4-104(12)(b). Indeed,
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.
In re B.T.B., 2020 UT 60, ¶ 67 (quotation simplified). Courts that order termination of parental rights without appropriately exploring “feasible alternatives to termination” have not properly applied the second part of the two-part termination test. See, e.g., In re H.F., 2019 UT App 204, ¶ 17, 455 P.3d 1098 (reversing and remanding a juvenile court’s termination order because, among other things, “the court’s determination that termination was strictly necessary was not supported by an appropriate exploration of feasible alternatives to termination”).
¶38 In this case, Parents challenge the juvenile court’s best interest determination, including its subsidiary conclusion that termination of their rights was strictly necessary to promote the best interest of the Subject Children. As discussed herein, we find merit in Parents’ challenge. We recognize that we are reviewing the juvenile court’s determinations deferentially, and we do not lightly reverse a court’s best-interest determination. But the facts of this case simply do not amount to strict necessity, and therefore the best-interest requirement is not met. Stated another way, the evidence presented at trial did not constitute clear and convincing evidence that termination of Parents’ rights to the Subject Children would be in the best interest of those children. Under the specific circumstances of this case, the juvenile court’s determination was against the clear weight of the evidence, and on that basis we reverse.
¶39 In its written decision, the juvenile court set forth several reasons for its conclusion that termination of Parents’ rights was strictly necessary to promote the Subject Children’s best interest.[10] We discuss those reasons, in turn. Although the topics that the juvenile court focused on are certainly appropriate topics to consider when examining best interest, we conclude that the facts underlying those topics—in this case—do not support a determination that termination was strictly necessary to promote the best interest of the Subject Children.
¶40 The court began its best-interest examination by discussing the ages of the Subject Children and, relatedly, the fact that the bonds between the Subject Children and their siblings had deteriorated. The Subject Children are, as noted, the youngest of the seven Children and were very young—A.H. was two-and-ahalf years old, and L.H. was eight months old—when they were first removed from the family home. The juvenile court noted that, as a result, they “did not have the opportunity to live with their parents for as long as their older siblings” and “had a very short time to be with their older siblings.” These facts are unquestionably true, and one of the consequences of these facts is that the Subject Children had less-developed bonds with Parents and with their siblings than the other Children did. But this will almost always be true when children are removed from their homes as newborns or toddlers, and courts must be careful not to overemphasize the significance of the deterioration of familial bonds—particularly sibling bonds—when that deterioration is the result of court-ordered removal from the home at an early age. See, e.g., In re N.M., 186 A.3d 998, 1014 n.30 (Pa. Super. Ct. 2018) (vacating an order terminating parental rights in part because the lower court’s decisions during the case had been “designed to affect the bond between” the parents and the child “so that termination would be the natural outcome of the proceedings”).
¶41 The facts of this case present an interesting case study. The next-oldest of the Children was born in April 2013, and is less than two years older than A.H. He was only four years old at the time of the first removal, and yet the juvenile court determined that it would not be in his best interest for Parents’ rights to be terminated. Many of the differences—especially in terms of the strength of the sibling bonds—between the Subject Children’s situation and that of their barely-older brother are largely the result of decisions made by DCFS and the court during the pendency of these proceedings. In a situation like this, a court must be careful not to ascribe too much weight to circumstances that are of the court’s own making.
¶42 We do not doubt the juvenile court’s finding that, by the time of trial, the bonds between the Subject Children and the other Children were not as strong as the bonds between the five oldest Children. We take at face value the court’s statement that the Subject Children, at the time of trial, had “little beyond a biological connection” to their older siblings. But even the biological connection between siblings matters. The connection between siblings is, for many people, the longest-lasting connection they will have in life. Indeed, “the importance of sibling relationships is well recognized by . . . courts and social science scholars,” because “a sibling relationship can be an independent emotionally supporting factor for children in ways quite distinctive from other relationships, and there are benefits and experiences that a child reaps from a relationship with his or her brother(s) or sister(s) which truly cannot be derived from any other.” In re D.C., 4 A.3d 1004, 1012 (N.J. 2010) (quotation simplified); see also Aaron Edward Brown, He Ain’t Heavy, He’s My Brother: The Need for a Statutory Enabling of Sibling Visitation, 27 B.U. Pub. Int. L.J. 1, 5 (2018) (noting that “[t]oday’s children are more likely to grow up with a sibling than a father,” and that “[t]he sibling relationship is generally regarded to be the longest relationship a person will have because the relationship will typically last longer than a relationship with a parent or spouse”). Such bonds are often especially important “to children who experience chaotic circumstances” like abuse or neglect, because “in such circumstances, they learn very early to depend on and cooperate with each other to cope with their common problems.” In re D.C., 4 A.3d at 1013 (quotation simplified); see alsoIn re Welfare of Child of G.R., No. A17-0995, 2017 WL 5661606, at *5 (Minn. Ct. App. Nov. 27, 2017) (“The sibling relationship is especially important for a young child with an unstable family structure as these siblings can provide secure emotional attachment, nurturing, and solace.”). Indeed, trial testimony from the DCFS caseworkers mirrored these sentiments, with the caseworkers stating that “children should stay together” and that placing siblings together “is understood under most circumstances . . . to be beneficial to the kids.”
¶43 And there is nothing in the record before us that indicates significant trouble among the sibling ranks. To the contrary, by all accounts the Children are quite loyal to one another, as best exemplified by their collective reaction—outrage—to being removed from the family home, and from each other, a second time in 2019. The juvenile court referred to them as a “large and unruly group,” but that description would seem to fit almost any group of seven siblings. The court also appeared concerned about “significant sibling rivalr[ies]” among some of the older Children but, again, we would be surprised to find a seven-member sibling group that didn’t have significant sibling rivalries. The court also offered its view that “[t]he older boys cannot be depended upon to protect” the Subject Children, but we think that’s an unfair expectation, as the court itself noted. And there are no allegations (for example, of intra-sibling abuse) about or among this sibling group that would counsel against keeping the group together.
¶44 We are also troubled, under the unusual circumstances of this case, by the fact that the deterioration of the Subject Children’s bonds with their siblings was due, in not-insignificant part, to the way this case was litigated, even apart from the removal and placement decisions. Notably, DCFS did not take any systematic steps to facilitate visitation between the three (and sometimes four) sibling groups that were placed in different homes, but instead “left that mostly up to [the] foster parents.”[11] In particular, DCFS did not allow the Subject Children to visit Grandparents with the rest of the Children during the summer of 2020. And Grandmother offered her perception that it had been difficult to get Foster Mother to facilitate telephonic or virtual visits between the older siblings and the Subject Children during the older siblings’ summer 2020 visit. Under these circumstances, it is no wonder that the Subject Children’s bond with their siblings began to wane. It is intuitive that relationships can become more distant without meaningful contact. To at least some degree, the deterioration of the sibling bonds is attributable to DCFS’s (and the various foster parents’) actions in failing to facilitate regular sibling visitation.
¶45 In addition, DCFS’s delay in starting the ICPC process appears to have also played a role in the way this case turned out. In July 2019, the juvenile court ordered that “an ICPC” be conducted to explore the possibility of placing the Children with Grandparents in New Mexico. But DCFS—perhaps intentionally, according to one of the caseworkers—delayed acting upon the court’s ICPC order for nearly four months, until late October 2019. Delays in obtaining ICPC reports are not necessarily uncommon, and can be just an unfortunate part of the process of communicating between agencies of different states. But such delays are troubling when they are attributable to a state agency’s refusal to even get the process started, despite a court order requiring it to do so. Although DCFS could not have known it at the time, its failure to timely initiate the ICPC process may have mattered more in this case than in others, because of the eventual emergence, in early 2020, of the COVID-19 pandemic.
¶46 Recall that, in the fall of 2019 and early 2020, after DCFS filed its termination petition, all parties were on the same page: they were working toward placing the Children—all of them— with Grandparents in New Mexico. Indeed, it was “highly anticipated by all parties that the results of the ICPC [would] resolve all issues pending before the Court.” But before a placement with Grandparents could happen, the ICPC report needed to be completed, and the parties twice stipulated to continuances of the termination trial specifically so that the ICPC report could be finished, and so that they could “ensure [that] the Grandparents kn[ew] what they [were] getting into.” These continuances resulted in the trial being rescheduled for late March 2020, which in turn resulted in the trial being postponed again because of the emergence of the pandemic. The ICPC report was not completed until October 2020, and by then, the Subject Children had been with Foster Family for more than a year and had begun to develop meaningful bonds there. Under these circumstances, it is hard not to wonder what might have happened if DCFS had begun the ICPC process in July 2019, as it had been ordered to do.[12]
¶47 Next, the court—appropriately—discussed at some length the Subject Children’s bond with Foster Family. There is no doubt that Foster Family is an appropriate adoptive placement, and that Foster Parents are doing a wonderful job caring for the Subject Children. The court made unchallenged findings in this regard, noting that Foster Parents are the ones “who care for them on a daily basis, feed them, hug them, and put them to bed,” and that, from the Subject Children’s point of view, Foster Parents “are their parents.” We do not minimize the significance of these findings. They are important, and are a necessary condition to any adoption-related termination of parental rights. After all, if an adoptive placement is not working out, an adoption into that placement is very unlikely to be finalized.
¶48 But while the existence of an acceptable adoptive placement is a necessary condition to any adoption-related termination, it is not a sufficient one. At some level, we certainly understand the impulse to want to leave children in—and perhaps make permanent—a putative adoptive placement in which the children are thriving. And we recognize—as the juvenile court observed here—that taking a child out of a loving adoptive placement in order to reunite the child with family can be detrimental to the child, at least in the short term. But in order to terminate parental rights to facilitate an adoption, a court must have before it more than just a loving and functional adoptive placement from which it would be emotionally difficult to remove the child. Termination of parental rights must be “strictly necessary to promote the . . . welfare and best interest” of the children in question. SeeIn re B.T.B., 2020 UT 60, ¶ 76, 472 P.3d 827. And in order to reach that conclusion, a court must do more than make a finding about the acceptability of the adoptive placement—it must examine potential options, short of termination, that might also further the best interest of the children in question. Id. ¶¶ 66–67. In particular, and especially in light of our legislature’s guidance that families should be kept together whenever possible, see Utah Code Ann. § 80-4-104(8), (12), courts must investigate kinship placement possibilities, including options for permanent guardianship. And if one of those placements turns out to be an option that can promote the child’s best interest “just as well,” then it is by definition not “strictly necessary” to terminate the parent’s rights. SeeIn re B.T.B., 2020 UT 60, ¶¶ 66–67.
¶49 Moreover, in this context courts must keep in mind the “clear and convincing” evidentiary standard. SeeIn re G.D., 2021 UT 19, ¶ 44, 491 P.3d 867. If there exists a completely appropriate kinship placement through which the family can remain intact, the “strictly necessary” showing becomes significantly more difficult to make. 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. But in such cases, the proponent of termination must show, by clear and convincing evidence, that the adoptive placement is materially better for the children than the kinship placement is. After all, if the two placements can each “equally protect[] and benefit[]” the child’s best interest, then by definition there does not exist clear and convincing evidence in favor of terminating a parent’s rights. SeeIn re B.T.B., 2020 UT 60, ¶ 66. And in this case, the necessary showing was not made.
¶50 Perhaps most significantly, there is not a hint of any evidence in the record before us that placement with Grandparents is flawed. The ICPC report (finally) came back clean; that report raised no concerns with regard to Grandparents, and concluded that their home would be an appropriate placement for the Children. The five older siblings had a lengthy visit with Grandparents in the summer of 2020, and all went well. And just before trial, the parties stipulated that the five oldest
Children should be placed with Grandparents on a long-term basis, subject to a permanent custody and guardianship arrangement. The court approved this stipulation, agreeing with the parties “that a permanent custody and guardianship arrangement” would serve the best interest of the five oldest Children. It even found that Grandparents are “certainly appropriate caregivers.” And on appeal, all parties agree that Grandparents are acceptable and loving caregivers; no party has even attempted to take issue with Grandparents’ ability to provide a loving and stable home for the Children. There is no dispute that Grandparents have the capacity and ability, from a financial standpoint as well as otherwise, to care for all seven Children, and stand ready and willing to do so, regardless of whether that takes the form of an adoption or a permanent guardianship arrangement.
¶51 The juvenile court opted to go in a different direction, primarily for three related reasons. First, it emphasized how “detrimental” and “destabilizing” it would be for the Subject Children to be removed from Foster Family. Second, the court emphasized that the Subject Children need stability and permanency, and determined that adoption—as opposed to guardianship—could best provide that stability. Third, the court expressed concern that, absent an adoption, Parents might attempt—at some later point in time—to get back into the lives of the Subject Children, and perhaps even “regain custody,” an eventuality the court believed would “pose a risk to” the Subject Children. In our view, these stated reasons do not constitute clear and convincing reasons to terminate Parents’ rights.
¶52 With regard to permanency and stability, our supreme court has recently clarified that the mere fact that adoptions—as a category—provide more permanency and stability than guardianships do is not enough to satisfy the statutory “strictly necessary” standard. SeeIn re J.A.L., 2022 UT 12, ¶ 24, 506 P.3d 606. In that case, the court held that the lower court fell into legal error in concluding that [a guardianship option] would not provide the “same degree of permanency as an adoption.” That is not the question under our law. A permanent guardianship by definition does not offer the same degree of permanency as an adoption. And there is always some risk that the permanent guardianship could come to an end, or be affected by visitation by the parent. If these categorical concerns were enough, termination and adoption would be strictly necessary across the board. But such categorical analysis is not in line with the statutory standard.
Id. The court then noted that, as part of the “strictly necessary” analysis, a court “must assess whether a permanent guardianship can equally protect and benefit the children in the case before it.” Id. ¶ 25 (quotation simplified). The court made clear that the statutory requirements were “not met by the categorical concern that a permanent guardianship is not as stable or permanent as an adoption,” and instead “require[] analysis of the particularized circumstances of the case before the court.” Id.
¶53 As applied here, this recent guidance renders insufficient—and more or less beside the point—the juvenile court’s apparent belief that an adoption was better than a guardianship simply because it was more permanent and more stable. All adoptions are at least somewhat more permanent than guardianships, and therefore that conclusion, standing alone, is not enough to constitute clear and convincing evidence supporting termination. It is certainly appropriate for courts in termination cases to discuss the potential need for permanency and stability. But in doing so, and when selecting an adoptive option over a guardianship option, a court in a termination case must articulate case-specific reasons why the added layer of permanency that adoptions offer is important and why adoption would better serve the best interest of the children in question than the guardianship option would.
¶54 The court’s concern about the possibility of Parents reentering the Children’s lives is, on this record, not an adequate case-specific reason. As an initial matter, it—like the lack of permanency—is a feature of the entire category of guardianships. It will always be true that, in a guardianship, a parent retains what the juvenile court here referred to as “residual rights,” while in an adoption the parent’s rights are terminated forever. This kind of categorical concern is not enough to constitute clear and convincing evidence in support of termination.
¶55 Moreover, we question whether—in many cases, including this one—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. Here, we return to the statutory guidance offered by our legislature: that “family life should be strengthened and preserved” “[w]herever possible,” and that it is usually “in the best interest and welfare of a child to be raised under the care and supervision of the child’s natural parents.” See Utah Code Ann. § 80-4-104(8), (12). We note our own observation that, “[i]n many cases, children will benefit from having more people—rather than fewer—in their lives who love them and care about them.” SeeIn re B.T.B., 2018 UT App 157, ¶ 55, 436 P.3d 206, aff’d, 2020 UT 60, 472 P.3d 827. And we acknowledge Parents’ point that a parent whose child has been placed in a permanent guardianship arrangement in a child welfare proceeding has no independent right to petition to change or dissolve the guardianship. See Utah Code Ann. § 78A-6-357(3)(d) (LexisNexis Supp. 2022). Only the guardian has that right. See id. And there is no evidence, in this record, that Grandparents will be particularly susceptible to inappropriate pressure from Parents to seek a change in the terms of any guardianship arrangement. In addition, there is no evidence that, if the Subject Children were placed into a guardianship with Grandparents, it would be harmful to them for Parents to retain the possibility of maintaining some form of contact with them (as they have with regard to the other Children), as supervised by court order and by Grandparents acting as guardians.[13] In other words, the juvenile court did not emphasize any case-specific issues that make us especially concerned about the possibility of Parents attempting to re-enter the Children’s lives at some point in the future.
¶56 We are thus left with the court’s concern—shared by the Subject Children’s therapists—about the disruption in the Subject Children’s lives that would be caused by removing them from Foster Family and placing them with Grandparents, alongside their siblings. This is of course a legitimate concern, and one that courts should take into account in situations like this. If and when the Subject Children are ever placed into a guardianship with Grandparents, and taken from Foster Family, that will no doubt be traumatic for them, at least in the short term. We acknowledge the validity of such concerns, and do not intend to minimize them. But in this case, focusing too much on this more-present possibility of emotional trauma risks minimizing the longer-term emotional trauma that permanent severance of the sibling bonds will likely someday trigger. In this specific and unique situation, the juvenile court’s discussion of potential emotional trauma associated with removal from Foster Family does not constitute clear and convincing evidence supporting termination.
¶57 For all of these reasons, we conclude that the juvenile court’s best-interest determination was against the clear weight of the evidence presented at trial. The State failed to prove, by clear and convincing evidence, that termination of Parents’ rights to Subject Children was strictly necessary, especially given the presence of another available and acceptable option—permanent guardianship with Grandparents, alongside their five siblings— that would not require permanent severance of familial bonds and that would serve the Subject Children’s best interest at least as well as adoption. SeeIn re G.D., 2021 UT 19, ¶ 75 (“[W]hen two placement options would equally benefit a child, the strictlynecessary requirement operates as a preference for a placement option that does not necessitate termination over an option that does.”). Under the unique circumstances of this case, termination of Parents’ rights is not strictly necessary to promote the Subject Children’s best interest.
CONCLUSION
¶58 Accordingly, we reverse the juvenile court’s order of termination, and remand the case for further proceedings consistent with this opinion. We offer a reminder that best-interest determinations are to be conducted in present-tense fashion, as of the date of the trial or hearing convened to consider the matter. SeeIn re Z.C.W., 2021 UT App 98, ¶ 14, 500 P.3d 94. Our holding today is that, based on the evidence presented at trial in October
2020, termination of Parents’ rights was not strictly necessary to promote the Subject Children’s best interest. On remand, the juvenile court should re-assess best interest. If nothing has materially changed since October 2020, then we expect the court to enter orders designed to work (perhaps quite gradually, in the court’s discretion) toward integration of the Subject Children into a placement with Grandparents, alongside their siblings. But if there is evidence that matters have materially changed since October 2020, the court may need to consider that evidence in some fashion, seeid. ¶ 15, and re-assess best interest based on the situation at the time of the hearing.
[1]Senior Judge Kate Appleby sat by special assignment as authorized by law. See generally Utah R. Jud. Admin. 11-201(7).
[2] In this opinion, for ease of reference, we refer to E.H.’s paternal grandparents as “Grandparents,” and we refer to them individually as “Grandmother” and “Grandfather,” even though any biological relationship exists only with E.H. and not with the other six Children.
[3] L.H. was removed from the home for a one-month period during this time, again because of concerns that he was malnourished and “failing to thrive.”
[4] These arrangements were a bit fluid during this period—at one point, the oldest four Children were combined into one placement, and the fifth-oldest was placed with Foster Family along with the Subject Children. However, the mother of the Foster Family testified at trial that, after a while, the fifth child often got upset at how his younger siblings were becoming so attached to Foster Family, and so she eventually asked that he be placed elsewhere.
[5] The abbreviation “ICPC” refers to the Interstate Compact on the Placement of Children, an interstate agreement that has been adopted by all fifty states. See Utah Code Ann. § 62A-4a-701 (LexisNexis 2018). The ICPC allows child welfare agencies from different states to more easily cooperate regarding placement of children across state lines.
[7] The facts recited in this paragraph regarding Parents’ communications with their various attorneys are not in the record, but are included in the materials submitted on appeal in support of Parents’ claim of ineffective assistance of counsel.
[8] Parents also raise other issues, including an assertion that Private Counsel rendered deficient performance that prejudiced them at the termination trial. Although we acknowledge the strength of Parents’ assertion that Private Counsel rendered ineffective assistance, and discuss in passing the problems they had with him, we need not reach the merits of that claim or any of their other claims because we reverse on the merits of their main claim.
[9] A court’s consideration of the importance of sibling relationships is arguably even more important in the termination/adoption context than it is in the child custody context, simply because of the permanency of termination and adoption. When split custody is ordered in a domestic case, the children will not live together all the time, but their overarching family relationship remains intact; they will remain siblings and, depending on visitation schedules, they will likely see each other several times each month. But when—as in this case—siblings are separated for purposes of adoption, the familial bonds, including the sibling bonds, are more permanently affected.
[10] Parents assert that the juvenile court erred by limiting its best interest inquiry to the Subject Children, rather than considering whether termination of Parents’ rights to the Subject Children was in the best interest of all the Children. Although we are far from persuaded by Parents’ assertion, we need not further concern ourselves with it, because for purposes of our analysis we assume, without deciding, that the juvenile court properly focused on the Subject Children when conducting the best-interest inquiry. Even assuming the propriety of that more limited focus, we nevertheless find the court’s ultimate best-interest determination unsupported by clear and convincing evidence.
[11] DCFS’s actions in this regard were arguably contrary to statute. See Utah Code Ann.§ 62A-4a-205(12)(a) (LexisNexis Supp. 2022) (stating that DCFS must “incorporate reasonable efforts to . . . provide sibling visitation when siblings are separated due to foster care or adoptive placement”); see alsoid. § 80-3307(12)(a) (requiring DCFS to “incorporate into the child and family plan reasonable efforts to provide sibling visitation if . . . siblings are separated due to foster care or adoptive placement”).
[12] The juvenile court addressed this issue in its written ruling, and downplayed the significance of the delayed ICPC report. It expressed its view that, even if DCFS had timely requested the ICPC report, the case would not have come out differently. First, it assumed that the ICPC process would have taken a year to complete even if the report had been requested in July 2019. We wonder about that, and in particular wonder whether any of the delays in completing the ICPC report were due to the emergence of the pandemic. But more to the point, the court indicated that it would have made the same termination decision in July 2020 as it made in October 2020. However, the court does not account for the fact that all parties to the case, including DCFS, were on the same page at least as late as March 12, 2020, and anticipated placing all the Children with Grandparents as soon as the ICPC report came back. Had the ICPC report come back significantly earlier, while the parties were still in agreement, things almost certainly would have been different. We doubt that the juvenile court would have rejected the parties’ stipulation on that point, just as it did not reject the parties’ October 2020 stipulation regarding the five oldest Children.
[13] Indeed, concerns about Parents potentially getting back into the lives of the Subject Children appear especially overblown under the facts of this case, given the fact that the juvenile court approved the stipulation for a permanent guardianship arrangement for the other five Children. The court does not convincingly explain why it is concerned for the Subject Children and not the others, stating only that the potential for the Parents to “regain custody . . . might not be devastating for the older children, but it will certainly be devastating to” the Subject Children. Presumably, this is a reference to the fact that the Subject Children are younger and have less of a pre-existing relationship with Parents and the other Children, an aspect of this case that we have already discussed.
In Utah, that question has been thoroughly discussed on the subject of grandparent visitation rights in the case of Jones v. Jones. and if you don’t want to read the rest of my answer, Jones vs. Jones set an extremely high bar for grandparents winning visitation rights, as well it should have. The idea of people other than parents having visitation rights with minor children is presumed inimical to parental rights and the integrity of the nuclear family. What follows is from some of the headnotes from the Westlaw report of Jones v. Jones, 307 P.3d 598 (Utah Ct.App. 2013):
– Grandparents seeking court-ordered visitation must overcome the presumption that a parent’s decision with regard to grandparent visitation is in the grandchild’s best interests by clear and convincing evidence. West’s U.C.A. § 30–5–2(2);
– Paternal grandparents failed to show that state’s interest in ordering visitation under Grandparent Visitation Statute was compelling, as required to prove that statute satisfied due process, although father was deceased and grandparents asserted they had enjoyed a substantial relationship with child before mother abruptly ended visitation two years before trial, where grandparent visitation evaluation contained no reference to harm suffered by child, the record described a healthy and normal grandparent-grandchild relationship, but not an exceptionally close one, and evaluator’s prediction that child may benefit in future from knowing her paternal grandparents in order to grieve her father’s death was speculative. U.S.C.A. Const.Amend. 14; West’s U.C.A. Const. Art. 1, § 7; West’s U.C.A. §§ 30–5–2, 78A–6–503(9).
Utah Family Law, LC | divorceutah.com | 801-466-9277
If a mother who is sentenced to 10 years in prison leaves her children to be raised by their grandmother, has she a right to demand they live with her when she is released?
Can the mother demand the children return to live with her? Yes. She can make any demands she wants. That doesn’t mean that the grandparents will necessarily accede to those demands.
Does the mother have the right to demand the children return to live with her after her release from prison? Yes, she has “the right” to make such a demand. They are, as a matter of law, her children, not the grandparents’ children, after all. Unless the grandparents petition the court to be made the children’s legal guardians or petition the court to adopt the children (and thus terminate the mother’s parental rights), the mother has the right to the custody and care of her children. And in a situation where the mother has been away from the children, unable to provide them with personal care and attention for a period of 10 years, if the grandparents were to petition for guardianship or adoption, their odds of prevailing are quite high.
Now will the children submissively (let alone willingly) agree to leave the people who have cared for them and to whom they’ve likely formed a strong, loving bond to go live with a woman they might barely know, given that mother’s been out of the picture and literally out of their lives for 10 years? Probably not. So even though the mother has the legal right to custody of the children after being released from prison, if the children refused to leave their grandparents’ home to go live with their mother, there is little the police can do. The grandparents could not be arrested for kidnapping because they are not holding the children against their wills.