Category: Mental Illness

State v. Smith – 2024 UT App 82

State v. Smith – 2024 UT App 82



Opinion No. 20220299-CA Filed May 31, 2024

Fifth District Court, St. George Department, The Honorable Jeffrey C. Wilcox No. 211501082

Nicolas D. Turner and K. Andrew Fitzgerald, Attorneys for Appellant, Sean D. Reyes and Karen A. Klucznik, Attorneys for Appellee

JUDGE AMY J. OLIVER authored this Opinion, in which JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.

OLIVER, Judge:

¶1 After coming home ¶1 After coming home from work, Shawntell Smith (Shawntell) gathered her family as she had planned and calmly told her husband of nearly thirty years, Steven Timothy Smith (Smith), that she was leaving him and taking their kids with her. Over the next twenty-five minutes, Smith left the house, drove to the bank and withdrew $15,000, returned home and put the cash in a drawer, got his gun from the closet and loaded the magazine, and asked his two sons if they agreed with the plan to move out. He then fatally shot Shawntell seven times in the back as she stood in the kitchen. At trial, Smith confessed on the stand, and a jury convicted him of first-degree murder. Smith challenges his conviction on the grounds that the trial court erred in denying his request for a jury instruction on the defense of extreme emotional distress and in denying his last-minute motion for a continuance to hire an expert witness. We reject both of Smith’s arguments and affirm his conviction.


¶2        Shawntell and Smith were married and had four children, three of whom were adults in May 2021. The two youngest sons, a fourteen-year-old (Teen Son) and a twenty-year-old (Adult Son), lived at home. Smith “was quick to anger or snap at the kids,” threatening them with a belt, cussing at them frequently, and sometimes throwing things at them. Smith also directed his temper, which he believes “every male has,” at his wife, Shawntell. As Adult Son testified, Smith once got so angry when Adult Son wanted Shawntell’s—not Smith’s—help with homework that Shawntell said she would call the police if Smith did not calm down. Smith then “got into her face” and said, “I’m going to put a bullet in your head.” Shawntell rarely stood up for herself, was often sleep-deprived from working two jobs— including a graveyard shift—to pay the bills, and had stopped inviting her friends into her house.

¶3        Shawntell eventually decided to leave Smith. For months, she quietly put a plan into action: she confided in her close friends and neighbors, asking for their help storing some of her things; she slowly began packing up boxes; and she found a townhouse and arranged for Adult Son to sign the lease on it. Shawntell decided she would hold a family meeting on May 21, 2021, to tell Smith she was leaving him that same day; she arranged for a couple of friends and neighbors to come help her move after the meeting. One neighbor (Neighbor) was worried about Shawntell’s safety if she left the same day she told Smith and suggested, instead, giving Smith “time to process” the news before moving out. But, Shawntell insisted on sticking with her plan out of fear Smith would “retaliat[e]” if she stayed. Neighbor remained “concerned enough” for Shawntell’s safety that he “put a gun in [his] truck.”

¶4        On May 21, just after 5:00 p.m., Shawntell and three of the kids—Adult Son, a twenty-five-year-old daughter (Daughter), and Teen Son—went into the home office where Smith was on his computer. Shawntell calmly told Smith she was leaving that day and that Adult Son and Teen Son were leaving with her. Smith simply said, “Okay,” and asked where they were going, along with who would pay rent on the family house. Shawntell replied that rent “would be his responsibility.” Smith calmly turned off his computer, walked to the master bedroom, and looked in the closet for his keys despite always keeping them on the dresser. Shawntell followed him and asked if she could help him find anything. Smith asked if Teen Son had known of her plan to leave, and Shawntell replied that only the older children had known beforehand.

¶5        Despite being “distraught” at the news his wife was leaving and he “was the last one to know,” Smith did not reach for any of the guns he kept in a chest on one of the bedroom dressers. Instead, he got his car keys and walked out of the bedroom, leaving the house at about 5:30 p.m. in a “calm” mood. Smith decided to take Shawntell’s car rather than the Suburban that was packed up, inferring she was taking the Suburban. He drove down the street to the bank and asked for a specific employee to help him withdraw $15,000 in cash. Smith opted to wait for that employee, who was busy with another customer. The employee suggested that a cashier’s check would be safer than carrying around so much cash. Smith refused and told the employee he was not concerned about safety because he was a retired police officer.

¶6        Smith drove home, arriving at approximately 5:45 p.m. A box truck that Adult Son had brought to help move was taking up most of the driveway, so Smith changed his mind about parking there, reversed the car, and found another parking spot. Neighbor observed Smith driving “at kind of a high rate of speed that just led [him] to believe that [Smith] was agitated.” Neighbor tried “to defuse the situation in some manner” by saying hello. Smith replied, “Get the fuck off my property” and Adult Son, who overheard Smith, said to Neighbor, “My dad’s true colors shining through.”

¶7        Smith walked into the house and went straight to the master bedroom, where he put the cash in a dresser drawer. Smith then saw a friend of Shawntell’s packing up her things from the closet and “forcefully” told her to leave. According to Smith, he “wanted to shoot” himself at that point, so he took out a .45 caliber pistol from the gun chest on his dresser and ammunition from the closet, and he went to the bathroom and sat on the toilet to load the gun. Smith claimed he felt “foggy” and “extremely out of it,” so when he tried to load the magazine, he did it the wrong way. He realized his mistake and then properly filled the magazine with seven bullets.

¶8        Deciding to kill himself in the backyard, Smith first went to find his sons, intending to ask them “if they wanted [him] around.” What he ended up asking, though, was whether they were okay with Shawntell’s plan to leave and take them. When they said they were, Smith said it felt like a slap in the face.

¶9        At approximately 5:52 p.m., Smith walked down the hallway to the back door and saw Shawntell with her back to him, her attention focused on doing something in a kitchen drawer. Smith thought to himself, “Okay. It’s her fault.” Lifting his gun, Smith aimed it at Shawntell and pulled the trigger seven times, hitting her each time. According to the medical examiner, the bullets penetrated Shawntell’s lungs, heart, kidney, bowel, and wrist. Smith watched Shawntell fall, face down, on the kitchen floor. He then went and sat on the couch, placing the gun on the nearby hutch.

¶10      Hearing gunshots from the driveway, Adult Son cried out and ran into the house, where he and Daughter found their mother lying on her stomach. Neither of them saw Smith near their mother, but Adult Son noticed Smith going into the master bedroom and followed, physically attacking him and asking, “Why? Why would you do this?” Smith responded, “I have nothing left.” Meanwhile, Daughter called 911 and attempted CPR.

¶11 When the police arrived, Teen Son ran out of the house, and the officers directed him to stay near them as another officer (Officer) “took a tactical position in front of the house.” The other two children came out, looking “frantic.” Adult Son exclaimed, “I beat the fuck out of my dad. He shot her. The gun is empty. And he’s sitting on the couch.” Officer ordered Smith to exit the house with his hands up. Smith calmly complied and was arrested. The police asked where the gun was, and Smith told them it was inside. Upon entering the house, the officers found Shawntell’s dead body surrounded by blood and seven .45 mm shell casings. After searching for “a long time,” the officers found the gun Smith used in the master closet, under a bloody American flag and “tucked” by the wall.

¶12 Smith was taken to the police station, where he received medical treatment for injuries caused by Adult Son. At the beginning of his first police interview, Smith was “pretty calm” but had “periods where he would become emotional.” Smith claimed to have memory gaps in the events leading up to the murder, so the police interviewed him a second time to ascertain whether he “recalled or was able to recall anything.” During the second interview, Smith claimed he did not remember shooting Shawntell, but he also “never denied that he shot her” and made statements such as, “I don’t deny that I’m not innocent” and, “I probably shot my wife.”

¶13      A few days later, the State charged Smith with murder. He pleaded not guilty. Out of an abundance of caution, Smith’s appointed counsel (Trial Counsel) requested a competency evaluation. The court granted the request, and Smith was later found competent to proceed. In mid-October, the parties agreed they would be ready for trial if it were set for the following month. On October 29, the State moved to preclude a jury instruction on an extreme emotional distress (EED) defense, contending the evidence would not support the defense under the new governing statute, which requires (among other things) evidence that the defendant had an “overwhelming reaction of anger, shock, or grief” to a “highly provoking act” by the victim, which reaction both (a) “cause[d] the defendant to be incapable of reflection and restraint” and (b) “would cause an objectively reasonable person to be incapable of reflection and restraint.” Utah Code § 76-5-205.5(1)(a)(i).[2] The court heard argument and deferred ruling until trial.

¶14 Two business days before trial, Smith filed a “two-page motion” requesting the appointment of an expert witness for an EED defense, a continuance, and funding for the expert. At oral argument on the motion, Trial Counsel argued an expert was needed to help the jury “recognize shock, anger, or grief, and how those things could be manifest.” Regarding the lateness of the filing, Trial Counsel argued that a continuance was “a reasonable accommodation” for “a complex issue” and “[t]here are other cases that are set to go if this one has to be continued.” In response, the State asserted “the statute is written in such a way that it doesn’t require expert testimony.” The trial court agreed and denied the motion, concluding that although expert testimony may explain the subjective part of the statute that looks to whether a defendant is “incapable of reflection and restraint,” see Utah Code § 76-5-205.5(1)(a)(i)(A) (2019), an expert is unnecessary to explain how an “objectively reasonable person” would react to a common occurrence like divorce, see id. § 76-5-205.5(1)(a)(i)(B). The trial court reasoned, “People get divorced all the time. And it is very rare that when someone is told, nothing more, ‘I’m leaving you,’ that that becomes so shocking and overwhelming[] that the person . . . leaving gets killed.”

¶15 At the three-day trial, two adult children, neighbors, friends, officers, and the medical examiner testified as recounted above. Smith testified in his defense, confessing on the stand that as he walked to the backyard, “I saw Shawntell right there. And that’s when I shot her.” At the close of evidence, the trial court heard argument outside the presence of the jury on the State’s motion to exclude the EED jury instruction. The court, finding that Shawntell did not engage in any type of highly provoking act before Smith killed her, ruled that the instruction would not be allowed because the evidence did not meet “the statutory requirement of a highly provocative act of the victim.” In closing, Trial Counsel argued, “[Smith] did not mean to shoot his wife. That was not his intent.” In response, the State pointed out there was plenty of evidence to support Smith’s intent to shoot and kill Shawntell, including his own statement that he shot her, the fact he never claimed it was a mistake, and the way he pulled the trigger seven times and did not miss a single time, all indicating Smith “clearly intended to kill her.”

¶16 The jury convicted Smith of murder, and the trial court sentenced Smith to fifteen years to life in prison. The court gave Smith credit for time served but then “recommend[ed] to the Board of Pardons [and Parole] that [Smith] remain in jail for the rest of [his] natural life.”


¶17 Smith argues the trial court erred in granting the State’s motion to exclude the EED jury instruction. The parties cite differing standards of review for this issue. The State asserts that we should review the decision to give a jury instruction for abuse of discretion, see State v. Karren, 2018 UT App 226, ¶ 18, 438 P.3d 18, while Smith states that we should review the decision for correctness, see State v. Kruger, 2000 UT 60, ¶ 11, 6 P.3d 1116.[3]

Ultimately, however, we need not resolve the question of which standard applies because, even under the more stringent correctness standard, we affirm the trial court’s decision denying Smith a jury instruction on EED.

¶18 Smith also argues the trial court erred by denying his motion seeking a continuance to obtain an expert witness on an EED defense. “We will not reverse the trial court’s decision to grant or deny a continuance absent a clear abuse of discretion.” State v. Alonzo Peraza, 2020 UT 48, ¶ 58, 469 P.3d 1023 (cleaned up).


I. EED Jury Instruction

¶19      Smith asserts the trial court erred when it declined to give

an EED jury instruction that could have reduced his murder charge to manslaughter. See Utah Code § 76-5-205.5(2)(a)–(b), (5) (2019). Specifically, Smith claims the court “substituted itself as the trier of fact” when it failed to consider Smith’s “background or experience” and concluded that no special mitigation existed because Shawntell committed no “highly provoking act,” id. § 76­5-205.5(2)(b).

¶20 “When requested by a criminal defendant, a trial court must give an instruction regarding a particular affirmative defense if evidence has been presented . . . that provides any reasonable basis upon which a jury could conclude that the affirmative defense applies to the defendant.” State v. Rivera, 2019 UT App 27, ¶ 19, 440 P.3d 694 (cleaned up). However, “a court need not instruct the jury on the requested affirmative defense where the evidence is so slight as to be incapable of raising a reasonable doubt in the jury’s mind as to whether the defendant” killed the victim while under the influence of EED. State v. Burke, 2011 UT App 168, ¶ 81, 256 P.3d 1102 (cleaned up).

¶21 Under Utah law, EED is defined as “an overwhelming reaction of anger, shock, or grief that . . . causes the defendant to be incapable of reflection and restraint” and “would cause an objectively reasonable person to be incapable of reflection and restraint.” Utah Code § 76-5-205.5(1)(a)(i). As relevant here, the defense applies only when the defendant acted “under the influence of extreme emotional distress that is predominantly caused by the victim’s highly provoking act immediately preceding the defendant’s actions.” Id. § 76-5-205.5(2)(b).

¶22      Here, the trial court correctly declined to give a jury instruction on the EED defense because the facts do not constitute a “highly provoking act.” As the trial court noted, “People get divorced all the time. And it is very rare that when someone is told, nothing more, ‘I’m leaving you,’ that that becomes so shocking and overwhelming[] that the person . . . leaving gets killed.” Shawntell’s announcement was a common one— relationships routinely end and people move out—and she made her announcement in a composed and rational way that she had thoughtfully planned out, calmly telling Smith she was leaving during a family meeting in his home office. Under these circumstances, the trial court correctly concluded that Shawntell’s actions were not “highly provoking.”

¶23 But even if we were to somehow construe Shawntell’s civilized, calm disclosure to Smith that she was leaving as a “highly provoking act,” it would still not satisfy the statute because it did not occur “immediately preceding” her murder. Approximately twenty-five minutes elapsed between the time Shawntell told Smith she was leaving and when he fatally shot her in the back seven times. Smith argues that the highly provoking act was more like a compilation of acts that was “ongoing from the time Shawntell informed him, and through her efforts to immediately remove everything from the home utilizing the aid of many friends and neighbors.” According to the relevant language of the statute, however, a defendant’s EED must be “predominantly caused by the victim’s highly provoking act immediately preceding the defendant’s actions.” Id. (emphasis added). Smith didn’t shoot Shawntell immediately after she told him she was leaving. He shot her twenty-five minutes later when she was in the kitchen doing something in a drawer with her back turned. Shawntell standing in her kitchen facing away from Smith was the antithesis of “highly provoking.”

¶24 Thus, the evidence at trial was “incapable of raising a reasonable doubt in the jury’s mind as to whether [the] defendant killed the victim while under the influence of” EED. State v. Piansiaksone, 954 P.2d 861, 872 (Utah 1998) (cleaned up). We therefore conclude the trial court correctly declined to give the jury instruction on the EED defense.

II. Continuance to Obtain an Expert Witness

¶25 Smith also contends that the trial court should have granted his motion for a continuance to obtain an expert witness because the shock or grief required by the EED statute “may require expert explanation to the jury about the various ways in which such emotions or psychological issues can manifest themselves.” The State, however, contends the trial court did not abuse its discretion because Smith failed to meet his burden for such a motion to be granted.

¶26 Because Smith moved “for a continuance to procure the testimony of an absent witness,” he must show (1) “that the testimony sought is material and admissible”; (2) “that the witness could actually be produced”; (3) “that the witness could be produced within a reasonable time”; and (4) “that due diligence has been exercised before the request for a continuance.” Mackin v. State, 2016 UT 47, ¶ 33, 387 P.3d 986 (cleaned up). “A failure to establish even one aspect of the above test defeats [a defendant’s] claim.” Id. Here, Smith falls well short of establishing the required elements.

¶27      First, Smith must show that an expert witness was material to his defense, which required him to “demonstrate with a reasonable probability that the nonadmitted evidence would affect the outcome of the criminal proceeding.” Id. ¶ 34 (cleaned up). But because Smith was not entitled to the EED jury instruction, see supra Part I, any testimony from an expert witness on the elements of the EED defense would have been irrelevant.[4] Thus, any such expert testimony was not material and Smith cannot demonstrate that there is “a reasonable likelihood of a more favorable result” at trial had the motion been granted. Id. ¶ 37 (cleaned up).

¶28      Next, the cursory motion was lacking any of the required specifics. It failed to identify any expert by name, the substance of the expert’s testimony, how quickly the expert could be retained and prepared to testify, and that the unnamed expert would actually be able to appear at trial. Id. ¶ 33.

¶29      Finally, Smith failed to demonstrate that he acted with due

diligence. He filed his expert witness motion requesting the continuance on the eve of trial, after the State had raised the issue the previous month in its motion to exclude the EED jury instruction.

¶30 In the face of such deficiencies in Smith’s expert witness motion, the trial court acted well within its discretion in denying the motion. Id. (“A failure to establish even one aspect of the above test defeats [the defendant’s] claim.”).


¶31 Shawntell’s calm announcement to Smith that she was leaving and taking the kids with her did not constitute the “highly provoking act” required for an EED defense and, in any event, it did not occur “immediately preceding” Smith’s fatal shooting of her. Therefore, the trial court did not err when it declined to instruct the jury on the EED defense. The court likewise did not abuse its discretion when it denied Smith’s last-minute motion for an expert witness to assist in presenting that defense. Accordingly, we affirm Smith’s conviction.

[1] “On appeal, we review the record facts in a light most favorable to the jury’s verdict and recite the facts accordingly.” State v. Samples, 2022 UT App 125, n.3, 521 P.3d 526 (cleaned up), cert. denied, 525 P.3d 1279 (Utah 2023).

[2] In 2019, the legislature overhauled Utah Code section 76-5­205.5, which governs how a defendant may seek mitigation of a criminal homicide offense for “mental illness or provocation,” including “extreme emotional distress.” Compare Utah Code § 76­5-205.5 (2018), with id. (2019).

[3] This dispute may stem from a shift our supreme court made in Miller v. Utah Department of Transportation, 2012 UT 54, 285 P.3d 1208. There, the court held that “the refusal to give a jury instruction is reviewed for abuse of discretion, although in some circumstances that discretion will be narrowly constrained.” Id. ¶ 13. The court went on to clarify that “in certain circumstances a district court’s discretion will be constrained such that a party is legally entitled to have a particular instruction given to the jury. In those circumstances, refusal constitutes an error of law, and an error of law always constitutes an abuse of discretion.” Id. ¶ 13 n.1. The court concluded by holding that “[t]o the extent earlier cases conflict with this opinion in their enunciation of the standard of review for refusal to give a jury instruction, this opinion controls.” Id.

But despite this clarification, there remains confusion as to when the trial court’s “discretion will be narrowly constrained” such that the refusal to give a jury instruction “constitutes an error of law,” Id. ¶ 13 & n.1. See, e.g.State v. Rivera, 2019 UT App 27, ¶ 14, 440 P.3d 694 (reviewing “a trial court’s refusal to give a requested jury instruction for correctness” with no mention of the abuse of discretion standard set forth in Miller (cleaned up)); State v. Dozah, 2016 UT App 13, ¶ 12, 368 P.3d 863 (same); State v. Karren, 2018 UT App 226, ¶¶ 18, 24, 438 P.3d 18 (identifying the standard of review for refusal to give a jury instruction as abuse of discretion, but concluding that “the district court did not err” in denying to give the requested jury instruction). Thus, “we flag the issue for consideration in a future case, noting the apparent lack of clarity in Utah law as to the appropriate standard of review” for the refusal to give a requested jury instruction. Amundsen v. University of Utah, 2019 UT 49, ¶ 19 n.5, 448 P.3d 1224.

[4] Additionally, testimony about whether Smith was “incapable of reflection and restraint,” see Utah Code § 76-5-205.5(1)(a)(i)(A), may have been inadmissible under rule 704(b) of the Utah Rules of Evidence, which prohibits an expert witness in a criminal case from giving “an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense.”

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My Husband Is Forcing Me to Get My Inheritance From Court From My Ex-husband’s (Deceased) Brothers Otherwise He Will Divorce Me. What Should I Do?

Talk to a good (a good) lawyer about whether you even have the right to “inherit” from your ex-husband’s brothers. Unless there are bizarre circumstances at work here, odds are you have no rights to your ex-husband’s brothers’ decedents’ estates. Talk to a good lawyer who handles wills and probate matters to find out. Heck, bring your husband along to the meeting, so that he learn first-hand from the lawyer himself (that way he can’t tell you that “you don’t understand” if you come back from the lawyer’s office by yourself and tell your husband what the lawyer told you).

As for a husband who threatens to divorce you if you don’t try to obtain a portion of your ex-husband’s brothers’ decedents’ estates, if this kind of behavior on his part is the norm in your marriage, you ought next to find out if this is mental illness, whether it’s behavior that can be corrected, whether he’ll recognize the behavior as wrong, or whether he’ll choose (regardless of why) to continue to conduct himself contemptibly. If your husband is chronically manipulating or emotionally abusing you without remorse, you may be better off without him.

Utah Family Law, LC | | 801-466-9277

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

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

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

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

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

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

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

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

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

Utah Family Law, LC | | 801-466-9277

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When my BPD ex filed for divorce, she went silent on me (provocations, mixed or erratic social media behavior stopped). I counter filed for divorce. Now she’s back to old behavior, unblocked me, jealousy baiting me (bluffing). What is her goal?

If you described your wife accurately, she’s probably trying to do to you exactly what you suspect: annoy, worry, anger, embarrass, and provoke you. You’re wiser than most to ask 1) whether you should be concerned and if so, 2) what to do about it.

I just received the book “Splitting” by Randi Kreger, Bill Eddy, William Eddy, and I’ve heard it’s an excellent description of what is happening, why it is happening, and what you can and should do about it. Let me know if you read it and whether you found it helpful. I’d love to trade notes with you about it.

Utah Family Law, LC | | 801-466-9277

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U.S. Marriage and Divorce Statistics

My name is Stephanie from and honestly, I usually wouldn’t bother emailing about this, but I researched and gathered as much data and stats as I could about various divorce statistics and put it all together in a massive blog post (84 stats to be precise).

This is it here:

I thought it might be useful to you and your readers as a reference in your blog.


Utah Family Law, LC | | 801-466-9277

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In Re A.H. – 2022 UT App 114 – Termination of Parental Rights

2022 UT App 114




N.J.H. AND S.H., Appellants, v. STATE OF UTAH, Appellee.


Nos. 20210353-CA and


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


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.


¶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 “will be 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.


¶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. See In 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]


¶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. See Troxel 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 also In 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.” See id. § 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. See In 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 also Santosky 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.” See In 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. See In 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.” See id. § 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.” See id. § 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.” See id. § 80-4-301(1). Our supreme court has interpreted this statutory requirement to mean that “termination must be strictly necessary to promote the child’s best interest.” See In re B.T.B., 2020 UT 60, ¶ 60. 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. See id. ¶ 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 also In 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. See In 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. See In 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. See In 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. See In 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. See In 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.” See In 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. See In 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.


¶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. See In 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, see id. ¶ 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.


[6] See Administrative Order for Court Operations During Pandemic, Utah Supreme Court (Mar. 13, 2020), ic%20Administrative%20Order.pdf [].

[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 also id. § 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.

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What advice would you give to someone who has just started a divorce?

What advice would you give to someone who has just become one of the parties in a divorce proceeding?

#1. Know this: divorce law and the divorce process are almost surely not what you think they are. They are scarier, more complex, more confusing, more time-consuming, more expensive, more disappointing, and more discouraging than you can imagine. Ignore my words at your peril. 

#2. Don’t sign anything your spouse asks you to sign without reviewing it with a good divorce lawyer. Don’t let what your spouse tells you about “how it’s gonna be” upset or worry you. Don’t believe him/her when he/she says, “My lawyer says you must ______” or “I have the best lawyer in town.” Most of what your spouse tells you will be lies meant to intimidate, coerce, and dupe you. 

#3. Don’t take friends’ and family members’ advice as as substitute for the advice of a good attorney. Your friends and family members usually mean well, but have no idea what they’re talking about. 

#4. Keep an eye on your valuable things and information. They tend to disappear once a divorce is filed. Secure: 

  • your financial accounts against your spouse draining them; 
  • your important documents (this is not an exhaustive list): 
    • tax records 
    • loan/debt records, loan and credit applications 
    • appraisals/valuations 
    • bank/financial institution records 
    • insurance records 
    • birth certificates 
    • Social Security cards 
    • passports (for you and the kids) 
    • pay stubs 
    • account statements 
    • certificates of title 
    • estate planning records 
    • business records 
    • medical and health care records (for every member of the family) 
    • photographs 
    • your prenuptial or postnuptial agreement, if you have one 
    • etc. 

Inventory everything (take videos and photographs of it all) that you own (both jointly and separately); 

  • make sure your password-protected accounts (e-mail, cell phone, social media, credit cards, bank/financial institution accounts, bills to pay, financial accounts, credit cards, etc.) cannot be accessed by your spouse without your advance knowledge and consent; 
  • route your personal mail to a P.O. Box to which only you have access; 

#5. Don’t act out of fear or anger or revenge. If you do, you may do your case irreparable damage. Keep a cool head. Get a good divorce attorney’s advice. 

#6. Talk to a good divorce lawyer (not just any lawyer, not just any divorce lawyer, but a good divorce lawyer) now. Right now. Not next week. Now. Right now. Pick up the phone and make an appointment with a good divorce lawyer right now. Timing can and usually is crucial in divorce. 

  • The longer you put off speaking with a good divorce lawyer the more you lose (possibly forever) the benefits of knowing what you can and should be doing right now to protect and preserve your interests and those of your children (if you have minor children). 
  • Notice that I did not write “hire a good divorce lawyer right now.” If you can hire a good divorce lawyer right now, do it. The sooner you get competent legal representation the better. No exceptions. 
  • But if you do not have (or falsely believe you do not have) the money to afford a good divorce lawyer, scrape together enough money to meet and confer with a good divorce lawyer for an hour. It will be one of the best investments you ever make. 
    • A good divorce lawyer is not a bulldog. A good divorce lawyer is not a shark. a good divorce lawyer is not someone who is effective at cheating ( as the old Bosnian proverb goes, “He who will lie for you will lie to you.”) A good divorce lawyer is someone with experience, skill, and decency. These kinds of divorce lawyers exist, but are very hard to find. But they are worth finding. If you want your divorce to be less expensive, less time-consuming, and less miserable, find this kind of good divorce lawyer. 

#7. Unless you are young, penniless, childless, and convinced your spouse won’t or can’t hang you out to dry in divorce, don’t go the DIY route. Hire a good divorce lawyer, if at all possible. 

  • If you: 
    • earn money or receive money from other sources 
      • are self-employed 
    • own property of any kind 
    • have money in the bank, investment accounts, or tied up in a pension and/or retirement accounts 
    • have debts and obligations 
    • are financially dependent upon your spouse 
    • have a spouse who is financially dependent on you (in full or in part) 
    • have minor children 
    • are married to a malicious or crazy-malicious person 
      • have been accused of abusing your spouse or children, 

then odds are high that trying to divorce without a good lawyer’s representation throughout the divorce case is going to be absolutely miserable.  

 Utah Family Law, LC | | 801-466-9277   

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Has anyone ever been able to prove narcissistic abuse in divorce court?

Yes, it happens quite frequently.*  

What people don’t understand is that finding a spouse is a jerk usually doesn’t amount to much in the divorce action.  

Most people believe—falsely—that if they can show the court that their spouses are narcissists (or some other type of insufferable personality) that this will result in the court bringing the wrath of God down on the narcissist and showering the other spouse with sympathy and riches for his/her trouble. Not so. 

Literally hundreds of thousands of people going through a divorce whose spouses suffer from (or who are suspected of suffering from) personality disorders believe that “if I can prove to the court that my spouse suffers from [antisocial personality disorder, avoidant personality disorder, borderline personality disorder, dependent personality disorder, histrionic personality disorder, narcissistic personality disorder, obsessive-compulsive personality disorder, paranoid personality disorder, schizoid personality disorder, schizotypal personality disorder], I’ll win everything my heart desires in the divorce case.” No, you won’t.  

It’s not narcissistic personality disorder or borderline personality disorder that matters, but actions (or a failure to act) that matters, first and foremost. If your spouse is physically or emotionally abusing you or the kids (and please accept that your when your spouse occasionally disagrees with or criticizes you or your children that does not make him or her emotionally abusive), it doesn’t matter why. If your spouse has a drug or alcohol problem, or a gambling habit, or your able-bodied spouse is lazy and won’t earn a living, it doesn’t matter why. There’s no excuse. An abusive or grossly irresponsible spouse is bad regardless of whether he or she has a personality disorder. See?  


*Now that does not mean that a judge necessarily makes the specific finding of “Husband/Wife is a narcissist who abused his/her spouse,” but many divorce courts find, in making or denying awards of marital property and assets, alimony, child custody, and parent-time, and protective or restraining orders that a spouse and/or parent engaged in lying, cheating, manipulative, exploitative, abusive, neglectful, irresponsible, and/or parental alienating behavior. 

Utah Family Law, LC | | 801-466-9277  

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What are the 3 main issues that lead to divorce these days?

Every time you hear about divorce, what are the 3 main issues that lead to divorce these days? 

I have been a divorce and family law attorney for 26 years. In that time I have spoken to thousands of people about divorce and their reasons for seeking a divorce. While there are many reasons one may need or feel the need to divorce, the “top 3” reasons are, in my experience: 

  1. Broken trust (whether that is caused by infidelity or hiding a substance abuse problem or failing to “pull one’s own weight” in the marriage relationship, etc.) 
  2. Placing self-interest ahead of fostering the marriage partnership (which usually takes the form of expecting your spouse to be perfect and to be solely or primarily responsible for your happiness) 
  3. Immaturity and/or some kind of mental health disorder 

Utah Family Law, LC | | 801-466-9277 

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How is a narcissist exposed in a court of law?

You’re not asking the best question. 

First, understand that many divorcing people see their spouses as “narcissistic” because at the time of divorce they tend to see the worst in everything about their spouses. Little personality quirks and foibles of a spouse are magnified in the eyes of the other spouse to help the other spouse feel better about themselves and their arguments for divorce. So before you set out to “expose” your spouse as a narcissist, be sure that it’s true.  

Second, there are varying degrees of narcissism. Someone who is self-absorbed, egomaniacal, and manipulative may be irritating to live and work with, but that alone isn’t a sufficient basis to entitle a spouse to more or less alimony or child custody or parent-time, for example. The condition alone is not a sufficient reason alone to deny a parent custody or parent-time. If a parent has a flaw or handicap, it’s not the handicap that’s inherently the problem, the problem is whether that flaw or handicap has done you or the marital estate real damage, whether the flaw or handicap renders a parent unfit to exercise care and custody of the children. It’s not the narcissistic personality disorder (NPD) itself that is a problem, it’s whether the NPD sufferer is behaving in a way that causes legally recognized and punishable harm to the spouse and/or children.  


The court doesn’t know (or usually care) what it means when you subjectively say, “My spouse is a narcissist.” But the court can understand and respond to objective, independently verifiable facts, i.e., here is the proof that my spouse: 

  • gambles away the rent money;  
  • beats the kids and me; 
  • gets drunk and passes out while the kids play in the traffic;
  • lies to get away with: 
    • breaking the law; 
    • physically injuring others; 
    • avoiding accountability and responsibility; and 
    • taking advantage of others  

If your spouse is so narcissistic that he or she is doing you or the kids real harm or putting you or the kids at risk of serious harm, then you must show the court, based upon independently verifiable proof (not just your word over that of your spouse) that the other spouse/parent has done wrong, is in the process of doing wrong, attempting to do wrong, or poses a serious danger of doing harm. Only when you can show the wrong first may the cause the why or how matter. With all that stated, I concede that some judges have an uncanny ability to see the worst in people, and to be duped. You would think they’d be especially attuned and on the lookout for the liars and con-men (and women), but that often not the case. Don’t let the court be charmed and taken in by lies, brown nosing, and alarmism either. Don’t let the court play favorites or come to hasty and biased conclusions. Call out the court if and when it puts subjective feelings over objective facts (or the lack thereof). 

Utah Family Law, LC | | 801-466-9277  

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Can I gain full custody if I’m bipolar?

I don’t want anything to do with my child’s father. Can I gain full custody if I’m bipolar? 

First, thank you for being so candid and blunt. This is a question that everyone on both sides of this issue have but that few have the guts to ask or have the guts to accept an equally blunt response. That stated, I will try to give you an answer in the same vein as your question: 

(Note: I cannot tell you whether there are any jurisdictions that treat bipolar disorder or other emotional or mental health conditions as absolute bars to consideration for legal or physical custody of children, but I can tell you what I know based upon the law of Utah, which is the jurisdiction where I’ve been practicing for the past 26 years) 

Now let’s talk about suffering from bipolar disorder. I’m amazed at the number of people who will say things to me like, “My child is autistic,” when the child has never been diagnosed by a competent mental health professional with autism. There are a lot of people will claim as fact that which they believe. This is often the case with personality disorders. I can’t tell you how many times people come to my office and say, “My wife has borderline personality disorder (BPD)” and “My husband is a narcissist and/or suffers from narcissistic personality disorder (NPD)” and “My spouse has bipolar disorder” without there ever being a diagnosis by a competent mental health professional. 

So, the first question we need to answer is whether you truly are bipolar or whether you and/or your spouse just believe you are.  

Next, if you are in fact bi-polar you need to determine whether your condition renders you dangerous to yourself and/or to others. By the way, this would be true of any serious mental health or serious personality disorder. If you are bipolar and or suffer other serious mental health problems, that doesn’t necessarily mean you are a danger to yourself or others. Many mental health and emotional disorders can be successfully treated with medication and/or counseling or therapy, so that someone with such a condition is no less fit as a parent than someone with a serious physical condition that is being successfully treated. 

Bottom line: merely suffering from bipolar disorder is not an absolute bar to being awarded sole or joint custody of a child. Without a showing that the bipolar disorder causes you to be a danger to yourself or to others (including your children, of course), evidence that you suffer from bipolar disorder (or other mental health or emotional disorders) is not enough to knock you out of the box. 

Utah Family Law, LC | | 801-466-9277  

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Why would a father give a child’s abusive mother full custody?

Why would a father whose attorney had outed his children’s mother as a schizophrenogenic narc monster give her full custody? 


If the father had it within his power to prevent custody of the children from being awarded to a schizophrenic monster of a mother (as you describe her), but did not do so, then clearly the father acted (or failed to act) morally and responsibly. 

It could be that the father was an even bigger monster than the mother (so self absorbed and/or apathetic that the children’s welfare didn’t concern him). 

It is more likely, however, that the father did not “give” the mother custody of the children, but encountered a legal system that was biased and that discriminated against fathers, leading the father to conclude that an award of custody to the mother was a fait accompli. under such circumstances, the father did not so much “give” custody of the children to the mother, but surrendered it to her. 

Utah Family Law, LC | | 801-466-9277  


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How can I reveal my soon-to-be ex as having NPD in our custody case?

How can I reveal my soon-to-be ex as having NPD in our child custody case?

You’re asking the wrong question. You shouldn’t be asking how you can prove your spouse has NPD (or some other mental or emotional disorder), but whether your spouse in some way unfit—due to mental illness or emotional disorder—to exercise custody of or parent-time with the children. 

There are so many people who believe that if he/she can prove that his/her spouse or the other parent merely suffers from a mental illness or emotional disorder he/she will somehow win the custody battle. 

It seems as though people believe that mental illness or emotional disorders automatically disqualify one from exercising custody or parent time (visitation) with one’s children. It’s not true. I don’t know where this misconception came from. 

First, merely having a mental or emotional disorder does not make one an unfit parent. Merely having a certain mental or emotional disorder or disorders does not automatically make one a danger to himself or to others. 

Second, even having a mental illness or emotional disorder that could render one a danger to himself or others does not mean that one cannot function as a fit parent. Many parents with serious mental and emotional disorders take medication to treat and manage those disorders successfully. Merely having a mental or emotional disorder (or other kinds of disabilities) does not automatically disqualify a parent as fit to exercise child custody and parent-time. 

Third, proving that one has a serious and disqualifying mental or emotional disorder or disorders is extraordinarily difficult. Diagnosis of many mental and emotional disorders is highly subjective. And if there isn’t associated seriously bad behavior to provide tangible, verifiable proof of actual serious harm resulting from suffering from mental illness or emotional disorders, then accusing a spouse or other parent of suffering from mental illness or emotional disorders essentially comes down to a matter of “your word against mine.” 

Fourth, even if a parent is self-absorbed, hot-tempered, hypocritical, etc., that doesn’t make the parent inherently unfit to exercise custody or parent-time. There are innumerable people suffering from some form of mental illness or personality disorder who still manage to function adequately in society. We may not know exactly why they’re so difficult to deal with, why they’re such jerks, why they won’t change, but they still meet minimum standards of behavior for normal society. 

Finally, accusing the other spouse or parent of suffering from mental illness or emotional disorders as a means of poisoning the opinion of the court against your spouse or other parent (and thereby obtain an advantage) can backfire. Making unsupported allegations comes across to courts as cheap shots (which they are). Unsupported allegations damage your credibility. It can make you look like the crazy and unstable one. It’s trendy to throw around these terms and accuse your spouse of suffering from NPD (narcissistic personality disorder) or BPD (borderline personality disorder), or other defects and disabilities. Mere allegations are a dime a dozen. Mere allegations and uncorroborated stories of mental illness or ability disorders don’t usually get a court’s attention (false claims of child abuse and domestic violence, however, are a different story altogether). 

Utah Family Law, LC | | 801-466-9277  

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Is it wrong for a parent to go to their adult child for emotional support?

Is it wrong for a parent to go to their adult child for emotional support concerning the parent’s marriage?

I am a divorce and family lawyer and a parent, but I am not a mental health professional. That doesn’t mean I can’t have an opinion on this subject or that my opinion won’t prove valuable, but it needs to be given the weight of a legal professional, not a mental health professional. 

When my mother died at age 63, I’m sure it was a comfort to her and to my father that her youngest child was an adult (albeit just barely; he was 18) and that he had his father and 8 older siblings to support him and to support one another. I know my father was grateful to have his children rally around him and support him in his loss and grief. Being an appropriate emotional support for a widowed parent in need is as much a child’s obligation as it is an honor. I don’t see why it should be any different for a divorced parent.  

We all know or will know people who are codependent. They need love and emotional support as much as anyone else. The problem with codependents are that they feel an excessive, pathological desire or need for others’ emotional and psychological support. Divorce is often the result of or the creation of a parent or parents who are codependent in relation to their children.  

So to answer your question: no, it is clearly not wrong for a parent to go to their adult children for emotional support over a troubled marriage, as long as that parent is seeking appropriate emotional support from his/her child(ren). 

Utah Family Law, LC | | 801-466-9277

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Why do spurned spouses often refuse to cooperate in their own divorce proceedings?

Why do spurned spouses often refuse to participate in certain aspects of their own divorce proceedings despite the headache it creates for all parties involved?

Spurned spouses sometimes refuse to participate in certain aspects of divorce proceedings despite the headache it creates for all parties involved because of some of all of the following:

– some or all of 6 of the 7 stages of grief:

  • disbelief and shock
  • denial
  • guilt and pain
  • bargaining
  • anger
  • depression

– fear

– apathy

– confusion/paralysis

– embarrassment/humiliation/betrayal

– vengeance/retaliation

– greed

– self-loathing

– emotional and/or psychological pathology, mental illness

Utah Family Law, LC | | 801-466-9277

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What kind of “damage” can untreated BPD in a parent cause children?

What kind of “damage” can an untreated single parent with BPD/shared custody/ cause to the kids in the long term?


Children of BPD parents often struggle with trusting others and forming intimate relationships. they often have a warped perception of reality because of the BPD parent’s influence. They often develop strong false feelings of guilt and shame and misplaced senses of responsibility for people and things for which they are not responsible. Children of divorce who have a BPD parent often feel as though they must choose love and loyalty for the BPD parent over the other parent. 

No matter how happy and successful a life and future a child of a parent with untreated BPD will have, that parent’s untreated BPD will do the child damage. Some children are able to compensate for the damage, many children will be made that much more anti-fragile from the damage, but plenty of children will struggle in life because of the parents untreated BPD. 

And how do you treat BPD effectively? I’ve heard it said by mental health professionals that it’s easier to overcome a heroin addiction than it is to treat BPD successfully. 

So pity the child of a BPD parent. Help that child as much as you can. 

Utah Family Law, LC | | 801-466-9277  

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What is it like to battle for custody with a narcissist?


Narcissists know how to game the system, to exploit its weaknesses, to exploit all that is good in human nature and institutions for destructive ends. 

It’s virtually impossible to prove that a narcissist is engaging in such misconduct because one of the things that makes a narcissist a narcissist, and so maddeningly effective as a narcissist is the ability to do so much damage with plausible deniability. 

Narcissists know that the odds of being caught lying are low, and the odds of being held accountable for lying are even lower. In the pursuit of their own self-interest narcissists have no scruples about lying, about exploiting others and about harming others, and about undermining our faith in the processes and institutions upon which a peaceful and stable society depend. 

This is why narcissists are so good at duping social workers, law enforcement officers, psychologists, and courts. 

Utah Family Law, LC | | 801-466-9277  

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Can a narcissist get custody of a child?

Of course.

First, even if one could prove a parent suffers from narcissistic personality disorder (NPD), merely suffering from this condition wouldn’t automatically disqualify a parent from being awarded sole or joint custody of children. Merely suffering from a condition isn’t the same as being disabled by a condition. For example, if a parent suffered from kleptomania (an impulse control disorder characterized by the recurrent irresistible urge to steal things one does not need), but The condition in check by not stealing, being a kleptomaniac alone wouldn’t the any reason to deprive a parent of a child custody award. Likewise, if a parent suffered from a serious heart condition, but was adequately treating the condition and thus able to take care of children adequately, merely having the condition would not render the parent unfit. Mere NPD itself isn’t a factor in the child custody award analysis, it’s bad behavior. So, if a parent is abusing or neglecting the children because of his/her NPD, it’s not the NPD that concerns the court, it’s the abuse and the neglect stemming from it. See?

Second, NPD is a mental health condition, a personality disorder, and thus difficult to establish as a matter of fact. It’s invisible. It’s not like blindness or paralysis, something easily identifiable, where the effects of it are easily identifiable as well. Additionally, NPD is somewhat subjective. One psychologist might diagnose someone with NPD, another might not. and as you might imagine, in a divorce and child custody setting, it’s not hard to find (if one wants to play that game) dueling “experts” (some lawyers call them rent-a-docs) with diametrically opposed opinions on the subject of NPD.

Third, even if you knew that your spouse suffers from NPD and that the NPD poses a serious risk of emotional, mental, and/or physical harm to your children, if the judge doesn’t believe in NPD or believe that the NPD is a big problem, then what you know doesn’t matter at all when it comes to the court making the child custody award. Courts take claims of mental health problems with a grain of salt, and understandably so. Given that mental health condition diagnoses can be so subjective, that they aren’t “tangible,” as easy to identify as being blind or deaf or paralyzed or epileptic, etc., courts are uncomfortable with taking it on faith that a mental health condition is a serious problem that could potentially affect the child custody award.

Bottom line: if you are pinning your hopes of winning the child custody battle on proving that your spouse suffers from NPD, you’re barking up the wrong tree. That stated, NPD could be part of a number of problems that, in the aggregate, may disqualify your spouse from being awarded the kind of custody award he or she desires, but on its own merely being diagnosed with NPD is rarely, if ever enough. In 24 years of practice I have never seen a parent denied custody or had his or her child custody award curtailed because of NPD, and I doubt I ever will. It’s not the tendencies or the urges that harm children (and thus affect the child custody award), it’s bad behavior that does.

Utah Family Law, LC | | 801-466-9277

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In re A.B. – 2021 UT App 91



S.T. AND T.T., 


No. 20200342-CA 

Filed August 26, 2021 

Third District Juvenile Court, Salt Lake Department 

The Honorable Julie V. Lund 

No. 1174795 

Steve S. Christensen and Clinton Brimhall, Attorneys 
for Appellant 

Sheleigh A. Harding, Attorney for Appellee 
Martha Pierce, Guardian ad Litem 



¶1 Each summer for nearly a decade, Annabelle1—with the permission of her mother, K.T. (Mother)—went to visit and stay with welcoming relatives. Eventually, and on agreement, summer turned into a whole year. When the hosting family then sought custody, the juvenile court characterized the situation as “neglect” and granted the request. Mother now appeals, and we reverse. 


¶2 Like many parents returning to work, Mother utilized the assistance of family and friends to help care for Annabelle after giving birth to her in 2008. But as the years went by, Mother’s use of family and friends to help with childcare went beyond mere “babysitting.” As Annabelle grew older, Mother established a pattern of leaving Annabelle with a welcoming relative every summer; often, Annabelle spent the summer at the home of Mother’s aunt, S.T. (Aunt), and uncle, T.T. (Uncle). Finally, in 2018, Mother—who at the time was struggling with parenting Annabelle—agreed to allow Annabelle to spend not just the summer but the entire 2018–2019 school year with Aunt and Uncle in Utah. 

¶3 In the years leading up to Annabelle’s yearlong residence with Aunt and Uncle, Mother and Annabelle had moved to New Mexico. There, Annabelle demonstrated behavioral problems including throwing chairs, hitting, screaming, kicking, “‘thrashing out,’ and expressing rage and hatred toward Mother.” Annabelle even “claimed to want to die,” a sentiment that, purportedly based on the advice of Annabelle’s counselor, Mother thought “was not abnormal” for a person of Annabelle’s age. Eventually, this crisis led Mother to reach out to Aunt and tell her, “I’m depressed, my daughter is depressed. All we do is cry some days.” Not long after, Mother asked Aunt to meet with her and take Annabelle because “[s]he’s out of control, grumpy, [and] thrashing out.” Aunt and Uncle agreed. So, Annabelle’s annual summer migration to Utah started early that year when Mother left Annabelle with Aunt and Uncle in May 2018 and moved to North Carolina with her boyfriend. 

¶4 About Annabelle’s year with Aunt and Uncle, the juvenile court heard conflicting testimony. On the one hand, the juvenile court heard that Mother monitored Annabelle’s progress in school, that Mother purchased clothes for Annabelle even though Aunt and Uncle “never asked [her] for financial support,” that Mother engaged in “several” phone calls with Annabelle over that time period, and that Mother gave Aunt and Uncle specific requests, including that they “put [Annabelle] into counseling.” On the other hand, Mother admitted that she did not visit Annabelle for over six months from October 2018 to May 2019, and the court heard testimony that Mother declined to participate when offered “extra opportunities . . . to contact [Annabelle] on the phone more frequently, extra opportunities to participate with [Annabelle] in activities, and the opportunity to attend an eye doctor appointment.” Aunt and Uncle also testified that Mother provided no financial support for Annabelle’s needs and refused to assist Aunt and Uncle with costs associated with medical co-pays, fixing Annabelle’s eyeglasses, or purchasing school clothes and supplies. Aunt and Uncle claimed that Mother told them, “She’s your responsibility. I don’t need to take care of anything, it’s your responsibility.” Aunt and Uncle further maintained that, at their home, Annabelle transformed from “reserved,” “quiet,” and fearful, to “thriving and happy.” 

¶5 A week before that school year’s end, in May 2019, Mother unexpectedly checked Annabelle out of school, planning to drive her back to North Carolina. Aunt and Uncle “retrieved [Annabelle] by way of an ex parte protective order” and filed a petition requesting custody, which the juvenile court granted temporarily. In addition to the testimony about the time at Aunt and Uncle’s home, the court heard testimony that Mother’s “parenting style lack[ed] affection,” “nurturing,” and “comforting behavior”—for example there was “no hugging”— and that Mother often peppered Annabelle with various insults. Aunt and Uncle also described that during one of Annabelle’s unsupervised visits with Mother, they received an accidental dial from Annabelle and, after answering the call, overheard Mother “yelling at [Annabelle] that she ‘needed to go . . . tell [Aunt and Uncle] that she needed to come home right now’” and to tell Aunt and Uncle to call Annabelle’s guardian ad litem to relay the same message. If she did not, Mother said, “a lot of people [would] get hurt.” Aunt and Uncle terminated this visit, but in their view more generally, Annabelle “was very depressed and sad after visits with” Mother, and only “[a]fter lots of support and kindness from [Aunt and Uncle]” would Annabelle “return to her normal, happy self.” And Mother did testify “that if custody were returned to her, she would cut off all contact between [Annabelle] and [Aunt and Uncle].” 

¶6 Ultimately, the juvenile court determined that although “[M]other loves [Annabelle],” “love alone is not enough for a child,” and that Mother’s conduct “demonstrates a complete disregard for the best interests of [Annabelle] and further demonstrates a pattern of [Mother] consistently placing her own best interests before those of [Annabelle].” Further, the court determined that Mother had “been unwilling or unable to provide [necessary] stability, and ha[d] therefore asked other family members to care for [Annabelle] for protracted lengths of time.” The court made findings and concluded that Mother “neglected” Annabelle and therefore granted Aunt and Uncle permanent custody and guardianship. 

¶7 Specifically, the court entered conclusions of law that: 

[Annabelle] has been neglected by [Mother] in the form of emotional maltreatment, which has caused [Annabelle] to be insecure, afraid and emotionally disturbed. 

[Annabelle] has been neglected by [Mother] by being placed with relatives for extended and regular periods of time without support from [Mother]. 

. . . . 

[Mother] has neglected [Annabelle] in not assisting in paying for her support or providing items for [Annabelle’s] care. . . . 

It is in [Annabelle’s] best interests to be placed in the permanent custody and guardianship of [Aunt and Uncle]. 

¶8 Mother appeals the juvenile court’s neglect determination.  


¶9 Mother raises one issue we address here: whether the juvenile court improperly determined that Mother’s conduct amounted to “neglect.” “We apply differing standards of review to findings of fact, conclusions of law, and determinations of mixed questions of law and fact.” In re E.R., 2021 UT 36, ¶ 14. Here, Mother does not dispute the juvenile court’s relevant findings of fact but instead contends that the juvenile court improperly applied the governing law. “This is a mixed determination of law and fact—in which the abstract law is applied to a given set of facts.” Id. ¶ 17. And, 

the standard of review for mixed questions depends on the nature of the issue. Law-like mixed questions are reviewed de novo, while fact-like mixed questions are reviewed deferentially. To determine whether a mixed question should be deemed law-like or fact-like, we evaluate the marginal costs and benefits of conducting either a searching de novo review or a deferential review of a lower tribunal’s resolution of the mixed question. 

De novo review of mixed questions is appropriate where a fresh appellate reconsideration of the issues presents little downside and significant upside. Issues that are law-like are matters that lend themselves to consistent resolution by uniform precedent. Appellate courts are in a preferred position on such issues. They can establish a uniform body of precedent establishing consistent rules that litigants and lower courts can rely on. And a need to establish such rules cuts against a standard of deference to lower courts. 

Id. ¶¶ 18–19 (cleaned up). We distinguish law-like questions from fact-like questions based on 

(1) the degree of variety and complexity in the facts to which the legal rule is to be applied; (2) the degree to which a trial court’s application of the legal rule relies on facts observed by the trial judge, such as a witness’s appearance and demeanor, relevant to the application of the law that cannot be adequately reflected in the record available to appellate courts; and (3) other policy reasons that weigh for or against granting discretion to trial courts. 

Id. ¶ 21 (cleaned up). 

¶10 As to the first two factors, where Mother does not dispute the relevant facts as found by the juvenile court, the facts before us are set and clear, and, having been entered by the juvenile court, are not dependent on disputed subjective factors observed by the juvenile court. As to the third factor, where the application of a statute to the facts lies in the vein of statutory interpretation—which is reviewed for correctness, see State v. Soules, 2012 UT App 238, ¶ 2, 286 P.3d 25—sound policy dictates that application of statute be reviewed de novo, giving no deference to the juvenile court. We view the question presented here as law-like because it concerns whether the facts as constituted meet the legal standard of the statute. De novo review here presents little downside and allows this court to establish precedent on which future litigants and lower courts can rely. Accordingly, we review the issue presented here giving no deference to the juvenile court. 


¶11 In contending that the juvenile court misapplied the statutory definition of “neglect,” Mother argues that “the juvenile court’s reasons for determining that [Annabelle] is a neglected child do not fall under the neglect statute or relate to that statute” or, at most, “bear only a passing relation.” Upon reviewing the juvenile court’s conclusions of law alongside the relevant statute, we conclude that the juvenile court failed to properly link its findings of fact and conclusions of law to the statute defining “neglect” in these situations. 

¶12 Initially, while we are sensitive to the challenging circumstances Annabelle has experienced in this case, we nevertheless must acknowledge the presumption in the law that generally parents have a right to the custody of their children. See In re C.Z., 2021 UT App 28, ¶ 16, 484 P.3d 431. Speaking about a related area of law, termination of parental rights, our supreme court has said that “[n]o parent could be deprived of his or her parental rights without a prior showing of unfitness, abandonment, or substantial neglect,” and that “[s]o long as a parent’s conduct remain[s] within those broad bounds, the state [is] not empowered to terminate the parent-child relationship.” See In re J.P., 648 P.2d 1364, 1367 (Utah 1982). Our supreme court has further stated, 

It is rooted in the common experience of [humankind], which teaches that parent and child normally share a strong attachment or bond for each other, that a natural parent will normally sacrifice personal interest and welfare for the child’s benefit, and that a natural parent is normally more sympathetic and understanding and better able to win the confidence and love of the child than anyone else. 

The parental presumption is not conclusive, but it cannot be rebutted merely by demonstrating that the opposing party possesses superior qualifications, has established a deeper bond with the child, or is able to provide more desirable circumstances. If the presumption could be rebutted merely by evidence that a nonparent would be a superior custodian, the parent’s natural right to custody could be rendered illusory and with it the child’s natural right to be reared, where possible, by his or her natural parent. 

Hutchison v. Hutchison, 649 P.2d 38, 40–41 (Utah 1982) (cleaned up). We recognize that this is not a termination of parental rights case, and we do not apply the presumption here, but this is all to emphasize the importance of the natural parent-child relationship and clarify that before a juvenile court removes a child from a natural parent based on the presence of “neglect,” that court must find facts that meet the statutory definition of neglect, which definition the legislature has deemed substantial enough to warrant the drastic consequence of removing a child from that child’s natural parent. 

¶13 Utah law provides six bases on which a juvenile court may determine that a situation amounts to “neglect.” Utah Code Ann. § 78A-6-105(40)(a) (LexisNexis Supp. 2020).2 Specifically, 

“Neglect” means action or inaction causing: 

abandonment of a child . . . ; 

lack of proper parental care of a child by reason of the fault or habits of the parent, guardian, or custodian; 

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; 

a child to be at risk of being neglected or abused because another child in the same home is neglected or abused; 

abandonment of a child through an unregulated custody transfer; or 

educational neglect. 

Id. However, as far as we can tell, the court did not base its ruling on any of these statutory grounds. Instead, the court found that Annabelle had “been neglected by [Mother] in the form of emotional maltreatment,” that Anabelle had “been neglected by [Mother] by being placed with relatives for extended periods of time,” and that “Mother ha[d] neglected [Annabelle] in not assisting in paying for her support or providing items for [Annabelle’s] care.” 

¶14 We do not see the required relation between these explanations—as expressed in the court’s conclusions of law— and the statutory text. As to the conclusion that Annabelle had “been neglected by [Mother] in the form of emotional maltreatment,” Aunt and Uncle concede that “emotional maltreatment is . . . not neglect”; and, indeed, this concession aligns with our own caselaw as provided in K.Y. v. Division of Child & Family Services, 2010 UT App 335, 244 P.3d 399, which clarified that “the statutory definition of neglect cannot be construed to include emotional maltreatment.”3 See id. ¶ 20. 

Similarly, the court’s statements that Annabelle has “been neglected by [Mother] by being placed with relatives for extended periods of time” and that “Mother has neglected [Annabelle] in not assisting in paying for her support or providing items for [Annabelle’s] care” do not clearly fall within the statute’s language. See infra ¶¶ 15–21. 

¶15 After reviewing the actual statutory grounds found in Utah Code section 78A-6-105(40)(a), we come no closer to seeing a connection between the court’s findings and conclusions and the statutory language. Of the statute’s six grounds for neglect, none apply to this case under the facts as found by the juvenile court. 

¶16 First, Annabelle cannot have been subject to “educational neglect,” Utah Code Ann. § 78A-6-105(40)(a)(vi), because “educational neglect” occurs only when a parent “fails to make a good faith effort to ensure that the child receives an appropriate education” after “receiving a notice of [a] compulsory education violation,” id. § 78A-6-105(20). The juvenile court made no findings in this regard. 

¶17 Second, Annabelle cannot have been abandoned through an “unregulated custody transfer,” id. § 78A-6-105(40)(a)(v), because an “[u]nregulated custody transfer” occurs only when the child is left with someone other than statutorily specified family members or an adult friend of the family—and no party challenges whether Aunt and Uncle fit in this category, id. § 78A6-105(64)(a). 

¶18 Third, Annabelle cannot have been “at risk of being neglected . . . because another child in the same home is neglected,” as no other child is identified in the juvenile court’s findings of fact. Id. § 78A-6-105(40)(a)(iv). 

¶19 Fourth, although appearing closer to the mark, Annabelle cannot have been subject to the “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.” Id. § 78A-6-105(40)(a)(iii). To be sure, Mother did refuse to pay Aunt and Uncle for various aspects of Annabelle’s care. However, in interpreting a statute, “we look first to the statute’s plain language and presume that the legislature used each word advisedly and read each term according to its ordinary and accepted meaning.” In re J.M.S., 2011 UT 75, ¶ 13, 280 P.3d 410 (cleaned up). And here, the statute’s plain language relates only to a parent’s refusal to provide care—it says nothing about a parent’s refusal to reimburse another caretaker for providing the care. If a non-parent party, retaining custody of a child, contends that a parent should pay for that child’s care, the non-parent party’s remedy is to return the child to the parent’s custody, where the parent would bear the monetary burden of providing for the child’s necessary care. On the facts before us, Mother never refused to provide care but refused only to reimburse Aunt and Uncle for providing that care. Thus, because the statute does not discuss money at all, the fact that Mother refused to repay Aunt and Uncle is neither here nor there for purposes of applying the statute to this situation and does not support a finding of neglect. 

¶20 Fifth, again, although apparently more applicable than other alternatives, Annabelle cannot have been subject to a “lack of proper parental care . . . by reason of the fault or habits of the parent, guardian, or custodian.” Utah Code Ann. § 78A-6-105(40)(a)(ii). While it would be inaccurate and insensitive to suggest that the interactions between Mother and Annabelle approached ideal, the record before us suggests that Annabelle received proper parental care, even if not always at Mother’s hand. And while Aunt and Uncle identify certain facts that they allege suggest a lack of proper parental care, the juvenile court did not rely on these facts in identifying the situation as neglect, and we are skeptical that such facts could have amounted to neglect in any event. 

¶21 Sixth, under the facts as applied by the juvenile court, we cannot determine whether Annabelle faced “abandonment.” Id. § 78A-6-105(40)(a)(i). The juvenile court did not analyze whether a parent who leaves a child temporarily with relatives could be considered to have abandoned the child; indeed, the juvenile court made no findings that it connected to abandonment, and its conclusions of law contain no language that suggests to us that the neglect determination rested on a finding of abandonment under section 78A-6-105(40)(a)(i). In short, the findings of fact and conclusions of law set forth by the juvenile court do not bear a connection to the governing statute sufficient to remove Annabelle from the custody of her natural parent on the basis of “neglect.” 


¶22 In declaring that Mother neglected Annabelle, the juvenile court made insufficient connection between its findings of fact and conclusions of law and the actual statutory grounds governing findings of “neglect.” The facts as found by the juvenile court do not meet the statutory definition of “neglect.” Therefore, we reverse the court’s order of permanent custody and guardianship issued in favor of Aunt and Uncle. 

Utah Family Law, LC | | 801-466-9277  

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How do I expose a narcissist in family court?

Pretty much impossible. Why? Two big reasons, generally:

  1. Narcissists are masters of deception.
  2. Being a narcissist generally not terribly relevant, if relevant at all, to most issues in a divorce or other kind of domestic relations case. Bad behavior (abuse, neglect) is relevant, but having an unpleasant or difficult personality (even and exceedingly unpleasant or difficult personality) usually isn’t.

Utah Family Law, LC | | 801-466-9277

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