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Category: Termination of Parental Rights

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

In re H.H. – 2024 UT App 25

THE UTAH COURT OF APPEALS

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

PERSONS UNDER EIGHTEEN YEARS OF AGE.

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

Opinion

Nos. 20220803-CA and

20220820-CA

Filed February 29, 2024

Second District Juvenile Court, Farmington Department

The Honorable Jeffrey J. Noland

Nos. 1163279 and 1163280

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

Emily Adams, Sara Pfrommer,

Hannah Leavitt-Howell, Marjorie Christensen, and

Melissa Jo Townsend, Attorneys for Appellant D.H.

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

John M. Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE RYAN M. HARRIS authored this Opinion, in which

JUDGES MICHELE M. CHRISTIANSEN FORSTER and JOHN D. LUTHY

concurred.

HARRIS, Judge:

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

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

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

BACKGROUND[2]

The Family Situation and the Initial Removal

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

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

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

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

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

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

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

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

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

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

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

The State’s Petition and the Shelter Hearing

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

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

The Failure of Group Therapy

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

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

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

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

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

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

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

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

Mother’s Adjudication

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

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

Father’s Adjudication

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

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

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

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

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

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

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

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

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

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

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

The Permanency Hearing

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

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

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

The Termination Trial

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Court’s Post-Trial Ruling

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

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

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

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

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

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

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

The GAL’s Rule 59 Motion

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

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

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

ISSUES AND STANDARDS OF REVIEW

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

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

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

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

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

ANALYSIS

  1. Constitutional Claims

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  1. Ineffective Assistance of Counsel

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

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

  1. Father’s Claim

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

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

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

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

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

  1. Mother’s Claim

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

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

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

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

III. Challenges to the Juvenile Court’s Factual Findings

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

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

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

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

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

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

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

  1. Best Interest/Strictly Necessary

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

  1. Father’s Claim

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

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

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

this part of the inquiry also requires courts to explore whether other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights. In some cases, alternatives will be few and unsatisfactory, and termination of the parent’s rights will be the option that is in the child’s best interest. But in other cases, courts should consider whether other less-permanent arrangements might serve the child’s needs just as well.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  1. Mother’s Arguments

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

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

1

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

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

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

2

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

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

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

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

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

CONCLUSION

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

¶142 Affirmed.

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


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

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

[3] Chloe and Felicity are also pseudonyms.

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

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

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

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

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

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

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

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

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

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

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

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House Bill 193 (HB0198 (utah.gov))

Another bill under consideration during the 2024 Utah legislative session is House Bill 193 (HB0198 (utah.gov)).

This bill would, if passed into law, 1) make clear that a “totality of circumstances” analysis applies when  a juvenile court determines whether to terminate parental rights; 2) provide that the existence of a placement option that does not require the termination of parental rights does not preclude a finding, based on the totality of the circumstances, that termination of parental rights is strictly necessary to promote the child’s best interest; and 3) as applicable, require the juvenile court to include the considerations described in Utah Code Sections 80-4-303 and 80-4-304 when determining the best interest of the child.

While Utah caselaw already made clear that a “totality of circumstances” analysis applies when a juvenile court determines whether to terminate parental rights. And the Utah Code already requires a juvenile court to include in its determinations in Sections 80-4-303 and 80-4-304 when determining the best interest of the child, it does not appear to me that making this clear in the statute itself is a bad thing.

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

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H.B. 194

Another potential law up for consideration in the 2024 Utah legislative session is H.B. 194. This bill would, if passed, amend provisions relating to adoption and child placement by amending the definition of “relative” for purposes of child placement to include second cousins. Up to this point, the law does not recognize a second cousin as a relative qualified to have a child placed with for adoptions or following the termination of a child’s parent’s or parents’ parental rights . H.B. 194 would make second cousins qualified relatives. I’m not sure there was any pressing need for such a law, but expanding the pool of relatives qualified to adopt or to care for a child who, for one reason or another, cannot live with one or both of its parents to include second cousins doesn’t strike me as a terrible idea.

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

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

G.G.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20220635-CA

Filed November 24, 2023

Second District Juvenile Court, Ogden Department

The Honorable Tasha Williams

No. 1183589

Keith Andrew Fitzgerald, Attorney for Appellant

Sean D. Reyes and John M. Peterson,

Attorneys for Appellee

Martha Pierce, Guardian ad Litem

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

CHRISTIANSEN FORSTER, Judge:

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

BACKGROUND[1]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ISSUE AND STANDARDS OF REVIEW

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

ANALYSIS

¶23      Father argues the juvenile court erred in determining that

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CONCLUSION

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

 

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

 

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

In re H.M. – 2023 UT App 122

THE UTAH COURT OF APPEALS

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

PERSONS UNDER EIGHTEEN YEARS OF AGE.

G.B.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20220774-CA

Filed October 13, 2023

First District Juvenile Court, Logan Department

The Honorable Kirk M. Morgan

No. 1187751

Julie J. Nelson and Alexandra Mareschal,

Attorneys for Appellant

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

Peterson, Attorneys for Appellee State of Utah

Jonathan P. Thomas, Attorney for Father

Martha Pierce, Guardian ad Litem

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

TENNEY, Judge:

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

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

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

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

BACKGROUND

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

Allegations of Abuse from 2015 Through 2020[1]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Protective Supervision Services Case

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

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

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

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

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

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

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

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

Mother’s Allegations Against Father Resume

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

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

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

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

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

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

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

Termination Proceedings

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

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

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

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

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

Trial

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

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

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

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

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

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

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

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

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

Termination Decision

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

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

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

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

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

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

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

ISSUES AND STANDARDS OF REVIEW

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

¶63      This court applies “differing standards of review to findings of fact, conclusions of law, and determinations of mixed questions of law and fact.” In re E.R., 2021 UT 36, ¶ 14, 496 P.3d 58. “A best interest determination involves neither a pure finding of fact nor an abstract conclusion of law. This is a mixed determination of law and fact—in which the abstract law is applied to a given set of facts.” Id. ¶ 17. “The juvenile court’s decision can be overturned only if it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” Id. ¶ 31 (quotation simplified).[2]

ANALYSIS

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

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

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

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

  1. Present-Tense Best Interest of the Children

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

¶85      But again, a “juvenile court’s decision can be overturned only if it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” In re E.R., 2021 UT 36, ¶ 31, 496 P.3d 58 (quotation simplified). Here:

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

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

  1. Supervised Visitation

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

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

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

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

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

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

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

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

III. Mother’s Additional Arguments

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

  1. Adoption

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

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

  1. “Piling On”

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

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

  1. Mandatory Reporting

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

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

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

CONCLUSION

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

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


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

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

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

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

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

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In re D.S. – 2023 UT App 98 – reversal of termination of parental rights

In re D.S. – 2023 UT App 98

THE UTAH COURT OF APPEALS

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

PERSONS UNDER EIGHTEEN YEARS OF AGE.

S.S.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20220956-CA

Filed August 31, 2023

Third District Juvenile Court, Salt Lake Department

The Honorable Annette Jan

No. 1198250

Sheleigh A. Harding, Attorney for Appellant

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

John M. Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE RYAN M. HARRIS authored this Opinion, in which

JUDGES DAVID N. MORTENSEN and AMY J. OLIVER concurred.

HARRIS, Judge:

¶1 After a trial, the juvenile court terminated S.S.’s (Father) parental rights regarding his two children, D.S. and K.S. (collectively, the Children), concluding that it was in the best interest of the Children for them to be adopted by their paternal grandmother (Grandmother). Father appeals the court’s termination order, asserting that—under the precise circumstances presented here, where the Children are being placed with Father’s own mother and where permanent guardianship remains a viable option—termination of his rights was not strictly necessary to promote the best interest of the Children. We agree with Father, and reverse the juvenile court’s termination order.

BACKGROUND

¶2        Father is the biological father of K.S., a boy born in 2010, and D.S., a girl born in 2016. Father resided with the Children and their mother (Mother) from the time the Children were born until approximately 2018. In 2014, the Division of Child and Family Services (DCFS) received a report that Father had committed “Domestic Violence related child abuse” against K.S. and some of the Children’s other siblings; most notably, the report alleged that Father had “cut [a sibling’s] hand with a knife.” DCFS found the allegations “supported,” but it did not take action to remove K.S. at that time, and no criminal charges were ever filed.

¶3        Around 2017, after D.S. was born, a protective order was entered against Father, for reasons unclear from this record, that restricted his ability to contact Mother. Even after entry of the protective order, though, Father continued to reside with Mother for about another year, in apparent violation of that order. Eventually, in 2018, Father and Mother went through “a messy break up” and separated; the Children remained in Mother’s custody. In the year following the separation, Father spent time with the Children on a regular basis through “weekend visits” that Grandmother initiated and staged at her house.

¶4        During this time period, Father was arrested for “possession of a dangerous weapon”—“a pocketknife in [his] pocket”—in connection with various “protective order violations.” In late 2019, he was sentenced to prison, and ordered to serve a term of zero to five years. When Father first got to prison, he was unable to visit with the Children—even virtually— due to the continued existence of the protective order, but in March 2020, after obtaining a modification to that order, he began visiting with the Children through weekly “video visits” or “phone visits.” In the beginning, it was Grandmother who “was really insistent” that these virtual visits take place between Father and the Children. And since 2020, such visits have occurred on more or less a weekly basis.

¶5        In early 2021, while Father was still incarcerated, the Children were removed from Mother’s custody after an incident in which Mother abandoned them. The Children were later adjudicated neglected as to Mother and dependent as to Father, and the juvenile court placed them with Grandmother. In later proceedings, Mother’s parental rights were terminated, a determination Mother has not appealed. And due to Father’s ongoing incarceration, reunification services were never offered to him; the juvenile court set a permanency goal of adoption.

¶6        In January 2022, the State filed a petition seeking to terminate Father’s parental rights regarding the Children. Prior to trial on that petition, Father stipulated that—largely due to his incarceration—the State could show at least one statutory ground for termination of his parental rights. But the case proceeded to trial on the other element of the termination test: whether termination was strictly necessary to promote the best interest of the Children. On that point, Father took the position that termination of his rights was not strictly necessary, given that—at least in his view—he had a good relationship with the Children, they were in the care of his own mother (Grandmother), and he would undoubtedly be a part of their lives going forward, at least in some sense, simply due to that reality. He asserted that a permanent custody and guardianship arrangement would suit this situation better than adoption would.

¶7        In August 2022, the juvenile court held a relatively brief trial to consider that issue; during that trial, the court heard argument from counsel and testimony from three witnesses: the DCFS caseworker (Caseworker), Grandmother, and Father.[1] Caseworker testified that the Children were doing well in Grandmother’s care. She was aware that the Children have regular virtual visits with Father, but she noted that the Children “don’t talk [with her] much about” those visits and, when they do, they often just say “they don’t remember what they talked [with Father] about.” Caseworker stated that she knows that the Children “love [Father],” and did not recall either of them ever saying that they found Father “scary.” But she offered her view that adoption by Grandmother was in the Children’s best interest, opining that “adoption is necessary to allow them permanency and . . . a long-lasting, stable environment.” She also stated that she had talked to the Children “about adoption” and that the Children “would like to be adopted by [Grandmother],” but did not elaborate or offer any context for this conversation.

¶8                      Grandmother testified that the Children were doing well

in school and thriving in her care. She acknowledged that, as a general matter, “fathers are important” in the lives of children, and she stated that she had been “a big advocate for” Father throughout the entire saga, even pushing to set up virtual visits from the prison after Father was first incarcerated. But she testified that, over time, she had become more of “an advocate for the [Children],” and offered her view that, due to some of the “choice[s]” Father had made, the relationship between Father and the Children had not “functioned properly for a very long time.” She discussed, at some length, the regular virtual visits that the Children have with Father, and she acknowledged that Father is a good listener during the visits. But she stated that the Children have lost interest in the visits over time, and that the visits are “hard for” the Children and make them “uncomfortable” because “they don’t know what to do” during the visits. To cope with the discomfort, Grandmother has added some “structure[]” to the visits “so that [the Children] would have things to talk about”; for instance, K.S. often plays the piano for Father during the visits, while D.S. often “plays kitchen” and pretends to cook things for Father. Grandmother offered her perception that the Children do not wish to have regular virtual visits anymore, and that Father does not understand that the visits are hard for the Children. She noted that sometimes the Children need to “spend some time kind of snuggling” with her after the visits. Grandmother also testified that, on at least one occasion, K.S. said that Father is “scary.”

¶9        Grandmother testified that she is ready, willing, and able to continue caring for the Children. But she voiced a strong preference for adopting them rather than acting as their permanent guardian. When asked why, she offered her view that adoption would be “less confusing” for the Children and that she could be “a consistent parent” for them given her “resources.” She opined that a guardianship arrangement “may suit [Father],” but she didn’t think it was “in the [C]hildren’s best interests.” She also stated that she was worried about what would happen to the Children—and, specifically, whether they would return to Father’s custody—if something were to happen to her. She acknowledged, however, that she would be willing to care for the Children in either form of custody (adoption or guardianship). And she also acknowledged that, even if Father’s parental rights were terminated and she were allowed to adopt the Children, she would nevertheless be open to the possibility that Father could still have a role in the Children’s lives, and in that situation she would “ask for some guidance from people that know more than [she does] about that,” such as the Children’s therapist. She testified that she had discussed the possibility of adoption with the Children, and that D.S. had compared it to those “commercials on TV about adopting a dog.” Referring to that comment, Grandmother acknowledged that the Children “have some misconceptions about” what adoption would mean and stated that she had “tried to fix” those misconceptions, but she offered no specifics about how she had attempted to do that.

¶10      Father was the trial’s final witness. In his testimony, he first described the involvement he has had in the Children’s lives since their birth, stating that when the family was living together he saw the Children every day, “took them to school, [and] everything.” Father acknowledged that the situation had changed due to his incarceration, and he recognized that the virtual visits from prison are “not ideal” because there are often other inmates in the background on video calls and because the technology sometimes has issues, but overall, he offered his view that the visits had been going well and that he did not think the visits were uncomfortable for the Children. As he perceived it, the Children “seem[ed] excited to see” him and “always tell [him] they love” him. He credited the virtual visits for allowing him to “maintain a relationship with” the Children despite his incarceration. He stated that he had “a really good bond” with K.S., with whom he shares a connection to music. He also spoke positively of his visits with D.S., although he acknowledged that D.S. sometimes “gets upset because [Father] can’t be there with her” in person.

¶11      Father testified that he was scheduled to be released from prison in December 2022, and he articulated a desire to “have a stronger relationship with” the Children than he was able to enjoy during incarceration. Father acknowledged that, immediately upon his release from prison, he would be in no position to assume custody of the Children, because he would “have a lot of stuff to deal with,” like “getting a job,” addressing his housing situation, and sorting out outstanding “immigration” issues.[2] But he was vocal about wanting to continue and improve his relationship with the Children after his release from prison.

¶12 After the presentation of evidence, the attorneys made closing arguments. The juvenile court did not make any ruling on the record at the close of the trial; instead, it asked the parties to submit additional briefing on “the issue of strictly necessary.” A few weeks later, the parties submitted those supplemental briefs, and thereafter the court issued a written ruling terminating Father’s parental rights.

¶13 Because Father had conceded the existence of statutory grounds for termination, the only issue the court needed to address was whether termination of Father’s rights was in the best interest of the Children and, as part of that inquiry, whether termination was strictly necessary to promote the Children’s best interest. And on that score, the court concluded that termination was indeed strictly necessary. The court acknowledged that both Father and Grandmother love the Children. The court also acknowledged that “there were no allegations of abuse and neglect regarding [Father] at the time the [C]hildren were ordered into” the custody of DCFS.[3] But the court found that Father’s “ability to offer love, affection, [and] guidance, and to continue with the [C]hildren’s education is very limited both due to his incarceration and [the Children’s] resistance to engaging with” Father. The court noted that the Children “have had stability” with Grandmother and were doing well in her care. The court also referenced its belief that the Children “desire to remain with and be adopted” by Grandmother, but it made no determination that the Children were of sufficient capacity to be able to meaningfully express their desires in this context.

¶14      In addition, the court opined that adoption was “necessary and essential to [the Children’s] well-being as it will protect them from [Father’s] desire to have ongoing and frequent visitation.” The court chided Father for failing “to recognize that the [C]hildren . . . do not want to visit with him,” and concluded that this failure “raises questions as to whether [Father] could act in the [C]hildren’s best interest.” In the court’s view, the fact that Father “believes [the Children] enjoy the visits” and that he “would, ideally, exercise more visitation [after release from prison] is exactly why a permanent custody and guardianship neither protects nor benefits the [C]hildren.” The court stated that a guardianship arrangement would “fail to ensure adequate protections against [Father’s] commitment for increased and continued visitation,” and would leave the Children “vulnerable to [Father’s] residual parental rights.” Indeed, the court observed that, “under a permanent custody and guardianship order,” the Children’s “emotional and physical needs” would be “subsumed by [Father’s] residual rights.” The court offered its view that adoption would serve the Children’s needs better than guardianship would, because it “affords them the protection of ensuring that any future assessment of contact with [Father] will [be] considered solely from their respective points of view.” The court stated that, “[i]f the legal assessment for best interest and strictly necessary was from the parental perspective, permanent custody and guardianship with [Grandmother] would likely [be] the best solution.” But it observed that “the legal assessment of best interest and strictly necessary is focused solely upon the [C]hildren and their needs” and, viewing the situation from that perspective, the court concluded that termination of Father’s rights was strictly necessary to promote their best interest.

ISSUE AND STANDARD OF REVIEW

¶15      Father appeals the juvenile court’s termination order, and challenges the court’s conclusion that termination of his parental rights was strictly necessary to further the Children’s best interest. “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 A.H., 2022 UT App 114, ¶ 30, 518 P.3d 993 (quotation simplified), cert. granted, 525 P.3d 1279 (Utah 2023). But “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. (quotation simplified). Moreover, because the “evidentiary standard applicable in termination of parental rights cases” is “the clear and convincing evidence standard,” we will “assess whether the juvenile court’s determination that the clear and convincing standard had been met goes against the clear weight of the evidence.” Id. (quotation simplified); see also In re G.D., 2021 UT 19, ¶ 37, 491 P.3d 867 (“Whether the juvenile court correctly concluded there was no feasible alternative to terminating . . . [the father’s] parental rights is a mixed question of fact and law,” and “we review the juvenile court’s findings of fact for clear error and its conclusions of law for correctness, affording the court some discretion in applying the law to the facts.” (quotation simplified)).

ANALYSIS

¶16      “The right of parents to raise their children is one of the most important rights any person enjoys.” In re A.H., 2022 UT App 114, ¶ 31. Perhaps for this reason, our legislature has provided specific requirements that must be met before a parent’s rights may be terminated. First, at least one of the enumerated statutory grounds for termination must be present. See Utah Code § 80-4­301. Second, termination of parental rights must be in the best interest of the affected children. In re A.H., 2022 UT App 114, ¶ 32. “The party seeking termination of a parent’s rights bears the

burden of proof on both parts of this test,” and “that party must make this required showing by clear and convincing evidence.” Id. (quotation simplified).

¶17      At trial, Father did not contest the State’s assertion that at least one of the statutory grounds for termination of his parental rights was present. He did, however, contest the State’s assertion that termination was in the Children’s best interest. And his appellate challenge to the juvenile court’s termination order is similarly limited to the best-interest portion of the two-part test.

¶18      “The best-interest inquiry is wide-ranging and asks a court to weigh the entirety of the circumstances of a child’s situation, including the physical, intellectual, social, moral, and educational training and general welfare and happiness of the child.” In re J.J.W., 2022 UT App 116, ¶ 26, 520 P.3d 38 (quotation simplified). Our legislature has provided important guidance regarding the best-interest question. First, statutes emphasize the importance of maintaining familial relationships where possible. As a general rule, 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.” Utah Code § 80-4-104(8). This is because “[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.” Id. Therefore, “the juvenile court should only transfer custody of a child from the child’s natural parent for compelling reasons and when there is a jurisdictional basis to do so.” Id.see also In re A.H., 2022 UT App 114, ¶ 31 (stating that a parent’s “fundamental liberty interest in the care, custody, and management of the parent’s child . . . does not cease to exist simply because . . . a parent may fail to be a model parent” (quoting Utah Code § 80-4-104(1), (4)(a)(i))).

¶19      Next, our legislature requires that termination of parental rights be “strictly necessary.” Utah Code § 80-4-301(1). “Our supreme court has interpreted this statutory requirement to mean that ‘termination must be strictly necessary to promote the child’s best interest.’” In re A.H., 2022 UT App 114, ¶ 36 (quoting In re B.T.B., 2020 UT 60, ¶ 60, 472 P.3d 827). And as the juvenile court here correctly noted, this inquiry is to be conducted “from the child’s point of view,” and not from either the parent’s or the prospective adoptive family’s. See Utah Code §§ 80-4­104(12)(b), -301(1); see also In re B.T.B., 2020 UT 60, ¶¶ 25 n.5, 64 (stating that the “best interest analysis should be undertaken from the child’s point of view”). “[W]hen two placement options would equally benefit a child, the strictly-necessary requirement operates as a preference for a placement option that does not necessitate termination over an option that does.” In re G.D., 2021 UT 19, ¶ 75, 491 P.3d 867; see also In re J.J.W., 2022 UT App 116, ¶ 29 (“Courts must start the best interest analysis from the legislatively mandated position that wherever possible, family life should be strengthened and preserved, and if the child can be equally protected and benefited by an option other than termination, termination is not strictly necessary.” (quotation simplified)). Thus, the best-interest inquiry—informed by the “strictly necessary” requirement—“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 re B.T.B., 2020 UT 60, ¶ 67 (quotation simplified). In particular, “courts should consider whether other less-permanent arrangements might serve the child’s needs just as well” as termination of the parent’s rights would. Id. (quotation simplified).

¶20    With these considerations in mind, we turn to the issue at hand: whether the State presented clear and convincing evidence that termination of Father’s rights was strictly necessary to promote the Children’s best interest. The juvenile court determined that the State had cleared this hurdle, and it based its best-interest determination largely on two subsidiary conclusions: (1) that the Children needed stability, which the court believed could be better provided through adoption than through a permanent guardianship arrangement, and (2) that the Children needed to be “protect[ed] against [Father’s] commitment for increased and continued visitation,” including protection against Father’s “residual rights,” which protection the court believed could be better provided through adoption than through a permanent guardianship arrangement. Father asserts that, on this record, these reasons constitute an insufficient basis to terminate his parental rights, and he maintains that the juvenile court’s determination was therefore against the weight of the evidence. We agree with Father.

¶21 The court’s first conclusion—that adoption affords a somewhat higher degree of stability than permanent guardianship does—is not, at a general level, a sufficient reason for terminating a parent’s rights. As our supreme court recently clarified, “categorical concerns” about stability are insufficient to warrant termination of parental rights so that an adoption may occur. See In re J.A.L., 2022 UT 12, ¶ 24, 506 P.3d 606. “If these categorical concerns were enough, termination and adoption would be strictly necessary across the board” because 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.” Id.see also In re L.L.B., 2023 UT App 66, ¶ 23, 532 P.3d 592 (“Categorical concerns about the lack of permanence of an option other than adoption are not enough, otherwise termination and adoption would be strictly necessary across the board.” (quotation simplified)).

¶22 In this vein, we note again that permanent guardianship arrangements are themselves quite stable. See In re A.H., 2022 UT App 114, ¶ 55; see also In re J.J.W., 2022 UT App 116, ¶ 31 (noting that permanent guardianships “have certain hallmarks of permanency”). “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.” In re A.H., 2022 UT App 114, ¶ 55; see also Utah Code § 78A-6-357(3)(d). “Only the guardian has that right.” In re A.H., 2022 UT App 114, ¶ 55; see also Utah Code § 78A­6-357(3)(d). And a parent, in this situation, is entitled only to “reasonable parent-time” with the child. See Utah Code § 80-1-102(70)(a)(iv). A guardian who does not think that a parent’s parent-time request is “reasonable” may resist that request, and any disputes between the guardian and the parent about the scope of “reasonable” visitation will be resolved “by the court,” with the best interest of the child in mind. See id. It is simply not the case—as the State implies—that a parent in this situation may demand, and obtain, as much parent-time as the parent desires. There are, of course, meaningful marginal differences in permanence and control between adoption and guardianship, and in some cases, these differences might matter. But after In re J.A.L., courts focused on the virtues of stability and permanence may no longer rely on the categorical differences between the two arrangements, but must instead discuss case-specific reasons why the “added layer of permanency that adoptions offer” matters in the case at hand. See In re A.H., 2022 UT App 114, ¶ 53.

¶23      In this case, the juvenile court offered a case-specific reason for its focus on stability: it was concerned about Father’s “residual rights,” and specifically about Father’s “commitment for increased and continued visitation,” and it worried that, after Father’s release from prison, he might continue to have some “involvement in [the Children’s] lives.” We acknowledge that, in some cases, fear of a parent’s residual rights might reasonably counsel in favor of terminating that parent’s rights so that an adoption can take place. But this case is not one of those cases.

¶24      For starters, there is no indication that Father’s continuing relationship with the Children is harmful to them, rather than merely perhaps inconvenient. See In re L.L.B., 2023 UT App 66, ¶ 24 (reversing a court’s termination of parental rights in part because “there was no finding . . . that [the] [f]ather’s presence in [the child’s] life has affirmatively harmed” the child, and “there was no finding detailing how [the child’s] life was negatively affected or disrupted by [the] [f]ather’s attempts to exercise his parental rights”).[4] Indeed, the juvenile court accurately noted that “there were no allegations of abuse or neglect regarding [Father] at the time the [C]hildren were ordered into [DCFS] custody,” and the Children were found only “dependent”—not abused or neglected—as to him. And the court found that Father “was involved in” K.S.’s life “until he was about eight years old” and in D.S.’s life until she “was three”; that he “love[s] these [C]hildren”; and that he “expresses genuine love and affection for” them.

¶25                To be sure, Father’s incarceration has placed a great degree

of stress on the parent-child relationship. Because of his incarceration, Father was unable to care for the Children in their time of need when Mother abandoned them, and he was—as of the time of trial—still unable to assume custody of them. Father has, however, made a credible and determined effort to remain involved in the Children’s lives despite his incarceration. With Grandmother’s initial encouragement and assistance, virtual visits were arranged on a regular basis, and the juvenile court found that, “[a]t first, the [C]hildren were eager” to participate in those visits. Over time, however, the Children have lost their enthusiasm for the visits. But no party pins this loss of enthusiasm on Father’s behavior regarding those visits; he remains excited about the visits, and there is no evidence that Father has ever turned down (or not shown up for) an opportunity for visits, or that he has ever acted inappropriately during any visit. Indeed, the juvenile court specifically found that Father was “a good listener” during the visits, and Grandmother testified that Father was “very good at playing kitchen” with D.S.

¶26      The most anyone can say regarding any downside to these visits is that the Children find them boring or “uncomfortable” because they sometimes see other inmates in the background and because they do “not know what to do” during the visits. Grandmother has had to add some structure to the visits so that the Children have some things to talk about with Father; K.S. has turned to music, and D.S. to “playing kitchen.” On some occasions, the Children find the visits “difficult” and need comfort from Grandmother after the visits conclude, but there is no indication from the record that this difficulty arises from anything Father does or says during the visits; indeed, it seems that the difficulty arises simply from the fact that Father is in prison, a fact that makes communicating and bonding comparatively difficult and often awkward.

¶27 Given Father’s genuine efforts to maintain a meaningful relationship with the Children, as well as the absence of a “harmfulness” component to that relationship, we see no basis for the juvenile court’s view that the Children need “protections against [Father’s] commitment for increased and continued visitation.” As a general matter, we want parents to exhibit a commitment toward a positive and continued relationship with their children. See In re A.H., 2022 UT App 114, ¶ 55 (“Family life should be strengthened and preserved wherever possible, and . . . 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.” (quotation simplified)); see also In re B.T.B., 2018 UT App 157, ¶ 55, 436 P.3d 206 (“In many cases, children will benefit from having more people—rather than fewer—in their lives who love them and care about them . . . .”), aff’d, 2020 UT 60, 472 P.3d 827. All else being equal, there is inherent value and benefit—not only to the parent but to the children—in maintaining familial relationships, a fact that the juvenile court failed to discuss or account for. See In re J.J.W., 2022 UT App 116, ¶ 31 (noting the “benefit of preserving the familial relationships, as our legislature has commanded courts to do ‘wherever possible’” (quoting Utah Code § 80-4­104(12))). And a parent’s desire to build and maintain—coupled with efforts to actually maintain—a meaningful relationship with a child is a factor that will often weigh in favor of, and not against, a determination that it is in the child’s best interest to keep the relationship intact. See In re A.H., 2022 UT App 114, ¶ 55. As we read this record, Father should be commended—rather than chided—for maintaining love and affection for, and a desire to continue a meaningful relationship with, the Children despite his incarceration. And Father’s wish to have “visitation” with the Children after his release from prison should likewise have been viewed positively—or at least neutrally—rather than negatively in the context of the best-interest inquiry. See id. (“[W]e 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.”).

¶28      All of this is especially true in this case, where the prospective adoptive parent is Father’s own mother. As Grandmother herself acknowledged, no matter the outcome of the case—whether adoption or guardianship—there will very likely be some sort of ongoing relationship between Father and the Children. That is, not even Grandmother believes that Father will (or necessarily should) be completely cut out of the Children’s lives; instead, she testified that, in the event she is allowed to adopt the Children, she would consult with “therapist[s]” and other “people that know more than” she does about appropriate visitation, and come to a decision about the level of Father’s involvement that she believes would be best for the Children. In another similar case, we defined the relevant question as follows: “[B]efore it may terminate [a parent’s] rights, the [juvenile] court must adequately explain why it is better for [the Children] to have [the parent] cut out of [their lives] forever than to have [the parent] remain involved in [their lives], perhaps with limited parent-time, pursuant to a guardianship arrangement.” In re J.J.W., 2022 UT App 116, ¶ 36. In cases like this one, where—given the identity of the prospective adoptive parent—nobody thinks Father really is going to be completely cut out of the Children’s lives as a practical matter, it becomes more difficult to establish that it is best for the Children for Father’s rights to be terminated.

¶29 Finally, we put almost no stock in the juvenile court’s finding that the Children “expressed a desire to be adopted by” Grandmother. In this context—termination cases in which the children are not in the physical custody of the parent in question—our law allows the court to consider “the child’s desires regarding the termination,” but only if the court “determines [that] the child is of sufficient capacity to express the child’s desires.” Utah Code § 80-4-303(1)(a). The issue of the capacity of the Children to express their desires was never discussed at trial, and the juvenile court made no determination that either one of the Children had sufficient capacity. At the time of trial, K.S. was eleven years old and D.S. was six years old. While the governing statute puts no absolute age threshold on when a child’s desires may be considered,[5] it is far from obvious that either of the Children—especially the six-year-old—were “of sufficient capacity” to express a meaningful opinion about the ultimate question in this case: whether Father’s rights ought to be terminated to facilitate an adoption or whether Father should retain certain rights through a guardianship arrangement. In parental termination cases, a court wishing to take a child’s desires into account should make a determination regarding the child’s capacity to express those desires; absent such a determination, the requirements of the statute are not met.

¶30 Moreover, even if the Children could be considered capable of offering meaningful testimony about their desires, there are evidentiary problems with the juvenile court’s finding on the subject: the trial testimony did not support any finding on this issue more specific than that the Children—quite understandably—wanted to remain in Grandmother’s care. Caseworker testified that the Children “would like to be adopted by” Grandmother, but she offered no additional details about her conversation with the Children. And Grandmother stated that she had discussed adoption with the Children, but she testified that D.S. responded, “That’s like the commercials on TV about adopting a dog.” And she acknowledged that the Children “have some misconceptions about” what adoption would mean, and that she had “tried to fix” those misconceptions. But no witness offered any testimony that could support a finding that either of the Children actually understood and appreciated the distinction between adoption and guardianship, and that, based on that understanding, they preferred adoption. In particular, no witness offered any testimony that either of the Children understood that, if an adoption were to occur, Father would lose all of his parental rights, and—relatedly—no witness offered any testimony that the Children actually wanted Father to lose all of his parental rights.[6]

¶31      In the end, the facts of this case simply don’t add up to strict necessity. Even though we review the juvenile court’s decision deferentially, we still must reverse when “the evidence presented at trial [does] not constitute clear and convincing evidence that termination of [the parent’s] rights . . . would be in the best interest of those children.” In re A.H., 2022 UT App 114, ¶ 38; see also In re L.L.B., 2023 UT App 66, ¶ 34 (reversing the district court’s decision where the “court’s conclusion that termination of [a father’s] parental rights was in [a child’s] best interest goes against the clear weight of the evidence”). With the appropriate “clear and convincing” evidentiary standard in mind, we conclude that the juvenile court’s decision in this case was against the clear weight of the evidence, and that the reasons upon which the court’s analysis relied were insufficient to support termination of Father’s rights.

¶32 We emphasize, however, that our decision is dependent upon the particular circumstances of this case. Those notable circumstances include the following: the juvenile court made no finding that Father’s relationship with the Children was abusive or harmful; the prospective adoptive parent is Father’s own mother; and Father will—in any event—likely have a relationship of some kind with the Children in the future. Moreover, there is no evidence that Father and Grandmother have the sort of relationship where he would be likely to exercise undue control over custody and care decisions in a guardianship arrangement. See In re J.J.W., 2022 UT App 116, ¶ 31 (noting that guardianship might be a viable option because, among other things, there was “no evidence in the record that would lead us to believe that [the guardians] would be particularly susceptible to undue influence from [the parent] as concerns seeking a change or dissolution of the guardianship”); see also In re A.H., 2022 UT App 114, ¶ 55. If the facts of the case were different, termination of Father’s parental rights might well have been justified. For instance, if Father’s relationship with the Children were abusive or detrimental, the situation would certainly be different. And we have previously noted that, where the prospective adoptive placement consists of non-relatives with no pre-existing relationship with the parent whose rights are at issue, a guardianship arrangement may be a poor fit. See In re J.P., 2021 UT App 134, ¶ 11, 502 P.3d 1247 (discussing with approval a lower court’s reasoning that permanent guardianship arrangements work best in situations where the parent and the guardian know each other and are “willing to work together to preserve [the] parent-child relationship” and “where the child has a healthy relationship with both the guardian and the parent,” and that such arrangements may not work as well in non-relative, foster-family placement situations). But on the facts presented at the termination trial in this case, a permanent guardianship arrangement serves the Children’s interest at least as well as adoption does, and therefore termination of Father’s parental rights is not strictly necessary to promote the Children’s best interest. See In re A.H., 2022 UT App 114, ¶ 49 (“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.” (quotation simplified)).

CONCLUSION

¶33      We reverse the juvenile court’s order terminating Father’s parental rights and remand the case for further proceedings consistent with this opinion. We note, as we have in similar cases, 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.” Id. ¶ 58. Our holding today is that, based on the evidence presented at trial in August 2022, termination of Father’s rights was not strictly necessary to promote the Children’s best interest. But the situation may well have changed since August 2022. In particular, we are aware that Father was scheduled to be released from prison in December 2022; the record submitted to us contains no information about whether that occurred as scheduled or, if so, what has happened since his release. If nothing has materially changed since the August 2022 trial, then we expect the court to enter an order establishing a permanent custody and guardianship arrangement, with the Children in Grandmother’s care, and to make appropriate rulings, as necessary, regarding the scope of Father’s reasonable visitation. But if there is evidence that matters have materially changed since the trial, the court may need to consider that evidence in some fashion, see In re Z.C.W., 2021 UT App 98, ¶ 15, 500 P.3d 94, and re-assess best interest, with its strictly necessary component, based on the situation at the time of the remand proceedings.


[1] The trial transcript is composed of just fifty-two pages. And the three witnesses’ testimony, in total, took just over an hour.

[2] The record submitted to us does not indicate whether Father was in fact released from prison on the anticipated date or, if so, whether Father has taken any steps to resolve his employment, housing, or immigration issues.

[3] At no point in its written ruling, or at any other time during the trial, did the court reference the 2014 “supported” allegations of abuse regarding the Children’s sibling. No witness testified about those allegations at trial. And while the protective order violations were mentioned in passing, no witness offered any testimony about the basis upon which the protective order was granted.

[4] As noted already, see supra note 3, no witness at trial mentioned the 2014 “supported” incident of abuse, and the protective order violations were discussed only in passing. Most importantly for present purposes, the juvenile court did not base any of its findings or conclusions on either of these incidents; in particular, it made no finding that either one was of such a nature as to render Father’s relationship with the Children harmful to them.

[5] Utah’s adoption statutes, by contrast, establish a specific age limit regarding when a child’s consent to adoption must be procured. See Utah Code § 78B-6-120(1)(a) (“[C]onsent to adoption of a child . . . is required from . . . the adoptee, if the adoptee is more than 12 years of age, unless the adoptee does not have the mental capacity to consent.”).

[6] In this vein, we note a general concern with evidence about a child’s desires regarding termination coming in through the testimony of a prospective adoptive parent. A much better practice is for such evidence to come in through either a proffer from a guardian ad litem—the attorney specifically hired to represent the interests of the child—or through the testimony of professional witnesses (e.g., mental health counselors) who presumably have training in discussing such topics with minors in a neutral way. By noting the absence of specific foundational evidence about the Children’s desires, we are in no way faulting Grandmother for apparently not asking additional follow-up questions of the Children regarding termination; indeed, this opinion should not be viewed as encouraging prospective adoptive parents to engage in conversations with children about termination of their natural parents’ rights.

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In re R.G. – 2023 UT App 114 THE UTAH COURT OF APPEALS STATE OF UTAH, IN THE INTEREST OF R.G., A PERSON UNDER EIGHTEEN YEARS OF AGE. M.M., Appellant, v. STATE OF UTAH, Appellee. Opinion No. 20220629-CA Filed September 28, 2023 Second District Juvenile Court, Ogden Department The Honorable Tasha Williams No. 1183589 Colleen K. Coebergh, Attorney for Appellant Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Attorneys for Appellee Martha Pierce, Guardian ad Litem

Appellee.

Opinion

No. 20220629-CA

Filed September 28, 2023

Second District Juvenile Court, Ogden Department

The Honorable Tasha Williams

No. 1183589

Colleen K. Coebergh, Attorney for Appellant

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

Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES GREGORY K. ORME and AMY J. OLIVER concurred.

CHRISTIANSEN FORSTER, Judge:

¶1        M.M. (Mother) appeals the juvenile court’s order terminating her parental rights to R.G. (Child). Mother argues she received ineffective assistance of counsel because the court would not allow her lawyer (Counsel) to withdraw from representing her at trial despite the fact that Mother did not appear at trial. Mother has not persuaded us that the court was wrong to deny Counsel’s motion to withdraw or that Counsel was ineffective as a result, and we affirm the court’s termination order.

BACKGROUND

¶2        Child was born on January 12, 2020. The following day, the Division of Child and Family Services (DCFS) received a referral indicating that Mother tested positive for illegal substances both at the time of Child’s birth and during her pregnancy. The referral also reported that Child was Mother’s sixth biological child and that Mother had lost custody of her other five children. Thereafter, a DCFS caseworker put a safety plan in place and Child was allowed to leave the hospital and return home with Mother and Child’s biological father, G.G. (Father).[1] Approximately one month later, the juvenile court found that Mother had abused Child by using illegal substances during her pregnancy and that Child was a sibling at risk of abuse or neglect. Child was removed from Mother’s custody and placed in the custody of DCFS.

¶3        The juvenile court ordered reunification services for Mother. After a year working with her, the court terminated reunification services, finding that Mother had failed to comply with the court’s orders and the service plan and to consistently engage in services. The matter proceeded to a termination trial that took place in November 2021.

¶4        Despite having proper notice, Mother failed to appear at the termination trial. Counsel moved to be released due to this failure, and the juvenile court granted Counsel’s motion. The trial then proceeded by proffer. At the close of trial, the court entered an order terminating Mother’s parental rights, which Mother subsequently appealed. Thereafter, the State, the guardian ad litem (GAL), Mother, and Father filed a stipulated motion for summary reversal, wherein all parties agreed that this first termination trial “failed to comport with due process.” This court granted the motion and accordingly vacated the termination order and remanded for a new trial.

¶5        The second termination trial occurred over the course of three days in April 2022. Approximately three weeks before trial, the juvenile court issued an order informing the parties that the trial would be held in person.[2] In the order, the court noted that Mother had made a “request to appear virtually.” The court granted the request, stating that Mother “may be allowed to attend virtually if she joins the hearing by video and her video remains on camera throughout the hearing.”

¶6        Mother did not appear—virtually or in person—during any part of the three-day termination trial. On the first day of trial, Counsel asked the court for a continuance, arguing that Mother had “a health concern.” But Counsel did not provide any additional information or documentation to support this claim, and the court denied the request, finding that Counsel could not establish that a continuance was warranted under rule 54 of the Utah Rules of Juvenile Procedure.

¶7        The trial then proceeded with Father as the first witness. In the middle of Father’s testimony, Counsel interrupted and asked the court to be “released.” Counsel explained that she was in a “tricky situation . . . attempting to defend a termination petition with no client.” The State and the GAL objected to Counsel’s request to withdraw. Both parties acknowledged that the withdrawal of counsel in the first termination trial had been problematic and that it had likely been a contributing factor in the decision to retry the case.[3] However, the GAL opined that if Counsel complied with the withdrawal process set forth in rule 53 of the Utah Rules of Juvenile Procedure, he would not oppose Counsel’s request to withdraw. But when the court questioned Counsel about whether she had complied with the rule 53 requirements, and specifically whether she had informed Mother that she would be withdrawing, she acknowledged that she had not.

¶8        After considering the parties’ arguments, the court denied Counsel’s motion to withdraw. The court explained that while it understood its decision put Counsel “in a precarious situation,” Counsel had not met the criteria to withdraw pursuant to rule 53. The court asked Counsel to “do the best you can,” and informed her that the court would “readdress [the request] if there’s more information that comes through.”

¶9        Counsel appeared without Mother on the remaining two days of trial. At the close of trial, the juvenile court entered a comprehensive order terminating Mother’s parental rights to Child.

ISSUE AND STANDARDS OF REVIEW

¶10      Mother now appeals the juvenile court’s termination order, asserting that Counsel rendered constitutionally ineffective assistance because Counsel had a “legal conflict” with Mother. Although Mother frames the issue as an ineffective assistance of counsel claim, her argument mostly implicates the propriety of the juvenile court’s decision to deny Counsel’s motion to withdraw. “Whether to allow an indigent [party’s] attorney to withdraw . . . is a matter committed to the [juvenile] court’s sound discretion and will be reversed only for an abuse of discretion.” State v. Scales, 946 P.2d 377, 381 (Utah Ct. App. 1997). “An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law.” In re S.S., 2015 UT App 230, ¶ 20, 360 P.3d 16 (quotation simplified).

ANALYSIS

¶11      Mother argues the juvenile court’s refusal to allow Counsel to withdraw after Mother failed to appear for trial gave rise to a conflict of interest between Mother and Counsel that resulted in Mother receiving ineffective assistance of counsel. According to Mother, the court’s “erroneous ruling” created a conflict by placing Counsel in a position that required Counsel “to present damaging evidence just to placate [Mother] and demonstrate to the Court [that Counsel] was ‘doing her best.’” In essence, Mother’s argument raises two questions: (1) whether the juvenile court erred in denying Counsel’s motion to withdraw and (2) whether Mother received ineffective assistance of counsel as a result of the court’s ruling. Because we conclude the court did not abuse its discretion in denying Counsel’s motion to withdraw, we likewise determine that Mother did not receive ineffective assistance because of that decision.

¶12      Motions for appointed counsel to withdraw are governed by rule 53 of the Utah Rules of Juvenile Procedure. That rule provides that “[c]ourt-appointed counsel may not withdraw as counsel of record except upon motion and order of the court.” Utah R. Juv. P. 53(b)(2). A motion to withdraw must be made “either in writing or orally before the court at a hearing” and must include

(i)  A certification from counsel that the represented party has been informed of the motion to withdraw and their right to counsel; and

(ii)A certification from counsel that the represented party has been informed of their rights to appeal, and the availability of post judgment motions and motion to stay pending appeal; or

( )          The efforts counsel has made to inform the represented party of subsections (c)(1)(i) and (c)(1)(ii).

Id. R. 53(c)(1).

¶13 Here, Counsel moved to withdraw shortly after the termination trial began. After listening to the State’s and the GAL’s opposition to her motion, Counsel admitted to the juvenile court that she could not meet the certification requirements under rule 53(c). Counsel explained that prior to trial, she received a memo indicating that the “main” reason the case had been remanded for a new trial “was the release of counsel” in the first trial. In light of this, Counsel stated, “[I] mention[ed] to [Mother] that it was possible that I would be trying to defend a case, a termination petition without her, without a client. So I have not notified her that the Court would release me.” After considering the parties’ arguments, the court denied Counsel’s motion to withdraw, explaining that Counsel had not made the certifications required under rule 53(c). In addition, the court noted that release under rule 53(b) is discretionary.

¶14      In light of the foregoing, we cannot say the juvenile court abused its discretion in denying Counsel’s motion to withdraw. The court explained on the record the reasons for denying the motion. Importantly, the court found that Counsel had not made the required rule 53(c) certifications supporting the motion, inasmuch as Counsel had admitted that Mother had not been informed that Counsel would be moving to withdraw. Moreover, the court found that even if the proper certifications had been made, the ultimate decision to approve the motion was discretionary with the court. Here, even assuming Counsel could certify that she spoke to Mother about her right to representation and appeal rights, we cannot say that it would have been an abuse of the court’s discretion to deny the motion. Among other reasons the court might have exercised its discretion to deny the motion include that the motion was not made until after the start of trial, despite ample notice of the proceedings; that the release of counsel in the first trial was an issue that had likely been a contributing factor in the need for a remand; and that it was Mother’s conduct in failing to appear at trial, rather than Counsel’s actions, which prompted Counsel to make the motion.[4]

¶15      Notwithstanding the correctness of the juvenile court’s denial of Counsel’s motion to withdraw, Mother contends the representation Counsel provided to Mother in her absence did not amount to effective assistance. “To establish her ineffective assistance of counsel claim, Mother must show that Counsel’s performance was objectively deficient and that Counsel’s deficient performance prejudiced the case.” See In re D.G., 2022 UT App 128, ¶ 9, 522 P.3d 39 (quotation simplified), cert. denied, 527 P.3d 1106 (Utah 2023). Because failure to establish either deficient performance or prejudice is fatal to an ineffective assistance claim, we are free to address Mother’s claim under either prong. See State v. Rosen, 2021 UT App 32, ¶ 8, 484 P.3d 1225, cert. denied, 496 P.3d 714 (Utah 2021). Accordingly, we address only the deficient-performance prong here.

¶16 To demonstrate deficient performance, Mother must persuade this court that, considering the record as a whole, Counsel’s performance was objectively unreasonable. See State v. Scott, 2020 UT 13, ¶ 36, 462 P.3d 350. But Mother cannot do so here, where Counsel’s continued participation at trial comported with the juvenile court’s proper denial of Counsel’s motion to withdraw and Mother’s claim that Counsel’s continued representation in her absence harmed her.

¶17      First, Mother was not required to appear at the termination trial. As this court has explained, “there is no absolute statutory or constitutional right to attend the trial in child welfare matters, including termination proceedings.” In re Z.Z., 2013 UT App 215, ¶ 20, 310 P.3d 772 (quotation simplified), cert. denied, 324 P.3d 640 (Utah 2014). “Notice of the proceedings is alone sufficient to allow a [parent] to exercise the right to be present by appearing, or to waive that right through voluntary absence.” Id. (quotation simplified). Here, Mother had actual notice of the proceeding. As Mother’s appellate counsel concedes, “[t]he [termination] trial commenced with an expectation that [Mother] would sign on as a virtual participant to the hearing.” That Mother chose not to appear may have put her at a disadvantage, but it does not follow that Counsel was ineffective as a result.

¶18      Second, despite Mother’s failure to appear at trial, she was still entitled to representation. A parent’s right to counsel at a termination trial is statutorily based. See In re A.E., 2001 UT App 202, ¶ 10, 29 P.3d 31; see also Utah Code § 78B-22-201(1)(b). To safeguard this right, appointed counsel may be properly waived only if “the record as a whole reflects the parent’s reasonable understanding of the proceedings and awareness of the right to counsel.” In re A.B., 2017 UT App 99, ¶ 5, 400 P.3d 1107 (per curiam) (quotation simplified); see also In re A.E., 2001 UT App 202, ¶¶ 12–13. Here, Mother did not discuss with the juvenile court any desire to waive her right to counsel, nor did the court engage in a colloquy regarding a potential waiver. On these facts, it would have been inappropriate for the court to conclude that Mother had waived her right to counsel. By requiring Mother to be represented absent a valid waiver, the juvenile court helped to protect Mother’s interests in a fair trial. Indeed, even without Mother present, Counsel was present to lodge objections, draw attention to any deficiencies in the State’s case, and ensure that Mother’s procedural rights were protected.

¶19 Third, and perhaps most notably, this court has already rejected the notion that a party can assert a claim of ineffective assistance where that party “failed to communicate with counsel between the time of the pretrial hearing and the termination trial and failed to appear at the trial.” In re M.L.M., No. 20070465-CA, 2007 WL 2446497, at *2 (Utah Ct. App. Aug. 30, 2007) (per curiam). Without client participation, counsel is substantially limited in presenting an effective defense. But this fault lies with the client, not with counsel. And this distinction matters. Indeed, a deficient defense caused by counsel’s actions may be grounds for reversal, whereas a mere inability to present the strongest defense— particularly when owing to the client’s failure to appear or to assist—does not warrant reversal. And specifically in this instance, where Mother claims that in order to appease the court rather than protect her client, Counsel allowed negative testimony from Father and called unhelpful and damaging witnesses, Counsel’s inability to present the strongest defense was not the fault of Counsel. Even if we were to agree that Counsel’s performance at trial was somehow deficient—which we do not— it was Mother’s own failure to appear that created the situation.

¶20      In sum, because the juvenile court complied with rule 53 of the Utah Rules of Juvenile Procedure when denying Counsel’s motion to withdraw, the court did not abuse its discretion in denying the motion. Further, the court’s action in properly denying the motion did not result in Mother receiving ineffective assistance of counsel because it was not objectively unreasonable for Counsel to continue to represent Mother at trial after the juvenile court denied the motion to withdraw and Mother failed to appear for trial.

CONCLUSION

¶21      The juvenile court did not abuse its discretion when it denied Counsel’s motion to withdraw, thereby requiring Counsel to represent Mother at trial despite Mother’s absence. In denying the motion, the juvenile court adhered to rule 53 of the Utah Rules of Juvenile Procedure, and the decision was therefore not an abuse of the court’s discretion. And because Mother has not demonstrated how Counsel’s representation was ineffective, nor has she alleged that the juvenile court’s termination analysis was flawed in any other respect, we affirm the court’s order terminating Mother’s parental rights.

 

[1] Father’s parental rights to Child were terminated at the same time as Mother’s. Because this appeal does not concern Father, we recount the facts that relate specifically to Mother.

[2] Prior to the entry of this order, the trial was scheduled to be conducted remotely, in accordance with the Administrative Order for Court Operations During Pandemic. See Administrative Order for Court Operations During Pandemic, Utah Supreme Court (June 26, 2020), https://legacy.utcourts.gov/alerts/docs/202 00626%20-%20Amended%20Pandemic%20Administrative%20Or der.pdf [https://perma.cc/9KE8-9U7R].

[3] As explained above, the first termination order was vacated based on the parties’ stipulated motion for summary reversal. Consequently, the merits of the first termination order were not briefed, and this court’s order reversing and remanding did not resolve the merits of the issues raised on appeal. Therefore, while all parties acknowledge that the absence of counsel in the first trial was an issue, there is no appellate decision affirmatively stating that this was the basis for reversal.

[4] Mother resists this conclusion, asserting that while rule 53(c) requires “certification” by counsel about certain advisements to the client, this court “must weigh the purpose, practicality and advisability of strict compliance [with rule 53(c)] against the institutional harm of ‘setting appointed counsel up’ to be forced into the untenable position [Counsel] was placed in this case.” But Mother’s position ignores that “it is our duty and practice to adhere to the plain language of a rule.” Cougar Canyon Loan, LLC v. Cypress Fund, LLC, 2020 UT 28, ¶ 13, 466 P.3d 171 (quotation simplified). Because of this, “where an appellant presents compelling reasons for a policy shift that is not currently supported by the plain language of our rules of procedure, we do not rewrite the rule on the fly. Rather, we refer the issue to the appropriate rules committee for additional study, and, if appropriate, we amend the language of the relevant rule through our normal rule-making process.” Id. ¶ 15 (quotation simplified).

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

In re M.M. – 2023 UT App 95 – termination of parental rights

2023 UT App 95

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF M.M.,

A PERSON UNDER EIGHTEEN YEARS OF AGE.

A.M.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20220624-CA

Filed August 24, 2023

Second District Juvenile Court, Ogden Department

The Honorable Jeffrey J. Noland

No. 1140984

Emily Adams, Sara Pfrommer, and Hannah K.

Leavitt-Howell, Attorneys for Appellant

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

Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

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

 

CHRISTIANSEN FORSTER, Judge:

 

¶1        Following a multi-day bench trial, the juvenile court entered an order terminating A.M.’s (Mother) parental rights to her child, M.M. (Child). Mother contends the court erred in denying her reunification services and in concluding termination of her parental rights was strictly necessary. Because Mother has not persuaded us that the court committed reversible error, we affirm its order terminating Mother’s parental rights.

BACKGROUND[1]

¶2      Mother is the biological parent of three children: Child, born in 2015; A.M. (Sister), born in 2018; and B.B. (Brother), born in 2019. All three children have different biological fathers. This appeal concerns only Child. Nevertheless, a complete understanding of the events giving rise to this case necessitates a recounting of the background as it relates to all three children.

¶3        In December 2016, prior to the birth of Sister and Brother, Child’s maternal grandmother (Grandmother) and maternal step-grandfather (Grandfather) noticed “large bruises on [Child’s] hips and thighs when they put him into the bath.” The following day, a caseworker from the Division of Child and Family Services (DCFS) met with Grandmother and Grandfather and examined Child. The caseworker observed the same bruising on Child that had been seen the day before, as well as a “small bruise in [Child’s] hairline above his forehead.” Child was transported to the hospital where a doctor observed the bruising and opined that “the bruising is concerning for abuse because of its location, linear component, the large size, and the lack of history explaining them.”

¶4        A few months later, in February 2017, Child was brought to the hospital for a breathing treatment for his asthma. While at the hospital, a doctor again observed “linear bruising on [Child’s] buttocks,” which she described as a “classic bruise found with spanking or inflicted trauma.” She explained the bruising was consistent with “excessive,” “repeated high-force spanking.”

¶5        During the time of these injuries, Child had been residing with Mother, Mother’s husband (Stepfather),[2] Grandmother, and Grandfather, and he had also attended daycare. Ultimately, no one was able to provide an explanation for the bruising. As a result, the juvenile court concluded that Child “has been abused by an unknown perpetrator” and adjudicated him dependent as to Mother. The court allowed Child to remain with Mother, contingent on her compliance with a safety plan and completion of court-ordered services. In December 2017, after Mother had received a year of services, the court terminated its jurisdiction and returned permanent custody and guardianship of Child to Mother.

¶6        The following month, Sister was born. Brother was born a year and a half later.

¶7        In August 2019, Brother suffered a series of abusive episodes. First, Mother said she “fell going down some stairs” while holding Brother. Thereafter, Brother’s father picked Brother up from a babysitter and became concerned that Brother was vomiting and appeared dehydrated. Brother was taken to the doctor for examination but was sent home with his father because the cause of the vomiting was “undetermined.” A few weeks later, Brother’s father again observed that Brother had been vomiting and appeared dehydrated. Brother was taken to the hospital for examination.

¶8        Upon examination, Brother’s head appeared “swollen.” A subsequent CT scan revealed a “large” brain bleed and a skeletal survey revealed “multiple healing rib fractures.” A doctor evaluated Brother the following day and expressed that Brother’s initial vomiting was “consistent with the brain injury” and a “sign” that the brain injury had occurred. She noted that although Brother’s head circumference had not been measured during his initial visit to the doctor, by the time of his second visit—which occurred approximately two weeks later—Brother “had a massive head.” She also opined that Brother’s injuries were caused by one of his caregivers and were “consistent with inflicted trauma and child abuse.” When questioned, both parents denied any involvement or knowledge of injuries to Brother. However, based on her conversation with both parents, the doctor had “much more concern” that Mother had caused Brother’s injuries.

¶9        Based on Brother’s injuries, the State filed a verified petition for custody and guardianship on behalf of all three children in August 2019. In the petition, the State asked the juvenile court to find that “[Brother] is severely abused by [Mother]” and that Child and Sister were “siblings at risk” and “neglected” as to Mother.

¶10      Over the next several months, the juvenile court transferred temporary custody of Sister and Brother to their respective fathers. Although the State requested that Child be removed from Mother’s custody, the court allowed Child to remain home with Mother on the condition that she comply with a safety plan. The safety plan required “line of sight supervision” by Grandmother and Grandfather for “any contact” between Mother and Child. But Mother did not abide by the safety plan, and in January 2020, after a DCFS caseworker observed a series of three events of non-compliance, the court transferred Child to DCFS’s custody, finding that Mother had “substantially endangered” Child’s welfare. Child was then placed in a foster care home.

¶11      In July 2020, Mother appeared before the juvenile court for adjudication of the State’s verified petition for custody.[3] After negotiations with Mother, the State agreed to amend the petition by removing the allegation that Mother had severely abused Brother, replacing it with an allegation that Brother suffered “severe physical abuse while in the care of [Mother].” Following this amendment, Mother proceeded with adjudication and entered a plea pursuant to rule 34(e) of the Utah Rules of Juvenile Procedure by which she neither admitted nor denied the allegations but they were deemed admitted as a matter of law.

¶12      At the close of the hearing, the court found by clear and convincing evidence that Brother had suffered “severe physical abuse while in the care of [Mother].” Accordingly, the court found that “[Sister] and [Child] are siblings at risk” and were “neglected” as to Mother. In addition to adjudicating the children’s statuses, the court also substantiated the DCFS supported finding of severe physical abuse of Brother while in Mother’s care. The court ordered that Brother and Sister continue in the temporary custody of their respective fathers and that Child continue in the custody of DCFS.

¶13      Shortly thereafter, the juvenile court held a disposition hearing during which it resolved the custody petition as to Brother and Sister by granting custody and guardianship to their respective fathers and terminating jurisdiction. The court requested briefing on the issue of whether Mother should be provided reunification services for Child. Citing the allegations that Mother physically abused her children, even after receiving court-ordered services, as well as Child’s success in his current foster placement, the State and the guardian ad litem (GAL) argued that reunification services were not in Child’s best interest and accordingly requested that services not be provided. In September 2020, the court entered an order denying reunification services to Mother.[4] In April 2021, the court set Child’s primary permanency goal as adoption with his current foster parents.

¶14     The next month, the State filed a petition to terminate Mother’s parental rights to Child. The matter proceeded to an eight-day bench trial that took place in March and April 2022.

¶15      At trial, several therapists who had provided mental health services to Mother testified. All agreed that Mother suffered from trauma and that treatment was needed to address it. These therapists further testified that while Mother had attended some therapy sessions, Mother had either canceled, rescheduled, or failed to attend many of the sessions, and that although Mother had made some progress in therapy, she still had a long way to go to process her trauma.

¶16    Child’s therapist and foster parents testified regarding Child’s communications with them, as well as Child’s improvements since his removal from Mother’s custody. Child’s therapist explained that Child suffered from “separation anxiety disorder and unspecified trauma and stressor-related disorder” but that these conditions had greatly improved while Child was living with his foster parents. Likewise, Child’s foster mother testified that Child had grown emotionally while in her care. She detailed Child’s emotional bonds with the members of his foster family and recounted how it was “an easy decision” to pursue adopting Child. Moreover, Child’s therapist and foster mother both testified that Child had reported witnessing Mother “hit his sibling on the head” and that Child had also reported that Mother had hit him.

¶17    Following trial, the juvenile court issued an order terminating Mother’s parental rights to Child. The court found the testimony and evidence presented to be true, and therefore concluded that the State had proved by clear and convincing evidence three statutory grounds for termination. The court also found that it was in Child’s best interest and strictly necessary to terminate Mother’s parental rights. In reaching this conclusion, the court noted it had “considered the specific circumstances” of the case, including Child’s “wishes to remain in his current foster home” and the feasibility of an alternative to termination, such as a permanent guardianship.

ISSUES AND STANDARDS OF REVIEW

¶18      Mother now appeals the juvenile court’s order terminating her parental rights to Child, raising two issues for our review. First, Mother argues the court erred when it refused to order reunification services to her. We review the juvenile court’s interpretation of the law for correctness; however, “[t]he ultimate decision whether to provide or deny reunification services is a determination that we review for abuse of discretion.” In re Z.G., 2016 UT App 98, ¶ 4, 376 P.3d 1077.

¶19      Second, Mother argues the juvenile court erred when it concluded that termination of her parental rights was strictly necessary. “We review deferentially a lower court’s best-interest determination and will overturn it only if it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” In re J.J.W., 2022 UT App 116, ¶ 18, 520 P.3d 38 (quotation simplified).

ANALYSIS

I. Reunification Services

¶20      Mother first argues the juvenile court erred when it denied reunification services to her. Specifically, she contends the court misinterpreted the law and abused its discretion when it (1) failed to provide the “necessary findings for the presumption against reunification services to apply” and (2) improperly weighed the statutory factors a court must use when determining whether to order reunification services.

¶21      After a juvenile court adjudicates a child as abused, neglected, or dependent, the court must conduct a dispositional hearing. See Utah Code § 78A-6-311(1) (2020). At that hearing, if the court orders that the child continue in the custody of DCFS, the court shall (1) “establish a primary permanency plan” and (2) “determine whether, in view of the primary permanency plan, reunification services are appropriate.” Id. § 78A-6-312(2).

¶22      The decision to order reunification services is therefore discretionary with the juvenile court, and “parents have no constitutional right to receive these services.” In re A.K., 2015 UT App 39, ¶ 15, 344 P.3d 1153 (quotation simplified); see also In re N.R., 967 P.2d 951, 955–56 (Utah Ct. App. 1998); Utah Code § 78A­6-312(20)(a) (2020). Accordingly, we will overturn the court’s decision only if it “either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” In re E.R., 2021 UT 36, ¶ 31, 496 P.3d 58 (quotation simplified).

¶23      In determining whether to order reunification services, the child’s “health, safety, and welfare shall be the court’s paramount concern.” Utah Code § 78A-6-312(5) (2020). And in making this determination, the juvenile court must consider a non-exclusive list of statutory factors, including the following:

·         “failure of the parent to respond to previous services or comply with a previous child and family plan;”

·         “the fact that the minor was abused while the parent was under the influence of drugs or alcohol;”

·         “any history of violent behavior directed at the child or an immediate family member;”

·         “whether a parent continues to live with an individual who abused the minor;”

·         “any patterns of the parent’s behavior that have exposed the minor to repeated abuse;”

·         “testimony by a competent professional that the parent’s behavior is unlikely to be successful; and”

·         “whether the parent has expressed an interest in reunification with the minor.”

Id. § 78A-6-312(23). However, in cases involving “obvious sexual abuse, sexual exploitation, abandonment, severe abuse, or severe neglect,” the court has no duty to provide services. Id. § 78A-6­-312(4). And several circumstances—if found by clear and convincing evidence—create “a presumption that reunification services should not be provided to a parent.” Id. § 78A-6-312(21).

¶24     Before the juvenile court, the State and the GAL argued that reunification services should not be offered to Mother. While only the State argued that the presumption against providing services should apply, both parties argued that the statutory factors weighed in favor of denying reunification services. Ultimately, the court denied services, finding they were not “appropriate” “given the fact that [Mother] had services before.”

¶25      Mother takes issue with the juvenile court’s determination on two grounds. As an initial matter, she asserts the court made “no findings in its reunification order, much less findings by clear and convincing evidence,” that would allow the court to apply the presumption against providing reunification services. But even if Mother’s assertion is correct and a presumption against reunification services does not apply in this case, Mother ignores that the court may still properly deny services regardless of whether a presumption exists.[5] And on the facts of this case, the court did not abuse its discretion in concluding that denying reunification services to Mother was appropriate.

¶26     Next, Mother asserts the juvenile court improperly weighed the statutory factors a court must consider when determining whether to provide reunification services. According to Mother, “four[6] of the seven factors weigh in favor of granting Mother reunification services” and “the remaining three factors do not tip the balance towards not offering reunification services.” We disagree.

¶27     First, Mother contends the juvenile court improperly determined she had failed to respond to reunification services in the past. See Utah Code § 78A-6-312(23)(a) (2020) (requiring courts to consider the “failure of the parent to respond to previous services or comply with a previous child and family plan” when determining whether to order reunification services). She claims that the dismissal of the first protective services case in December 2017 and the full restoration of custody of Child shows she responded to services and complied with her previous family plan. But in concluding that this factor weighed against Mother, the court considered Mother’s compliance in the first protective services case as well as her actions after that case was closed. The court explained,

I see that you’ve had services before on [Child]. We had a [protective supervision services] case. . . . You engage in services. We think things are good. We close the case.

Then not much longer . . . we have a severe abuse to [Child]’s younger sibling . . . . We’ve already done reunification services or services by DCFS for you on [Child] and here we are again with a severely abused child.

¶28     This explanation is sufficient to show that the court adequately considered whether Mother had failed to respond to previous reunification services. The court weighed Mother’s prior compliance against her actions following the completion of the original services. Because the court’s decision is not “against the clear weight of the evidence,” a “measure of deference is owing” to the court’s decision. In re E.R., 2021 UT 36, ¶ 32 (quotation simplified). Accordingly, we will not perform an “independent ‘reweighing’ of the evidence” but will instead “respect[]” the court’s decision. Id.

¶29      Second, Mother contends the juvenile court improperly weighed against her the factors concerning “any history of violent behavior directed at the child or an immediate family member” and “any patterns of the parent’s behavior that have exposed the minor to repeated abuse.” See Utah Code § 78A-6-312(23)(c), (e) (2020). Specifically, Mother asserts these factors do not weigh against her because she “was not adjudicated as abusing [Child] in 2017,” there are “no other allegations” that Child or Sister have been otherwise injured, and it has “never been established that Mother harmed [Brother].”

¶30      But Mother’s arguments on this point ignore substantial record evidence indicating that Mother did have a history of violent behavior directed at Child or Child’s immediate family members and that Mother’s behavior exposed Child to repeated abuse. While Mother is correct that she was not adjudicated as abusing Child in 2017, Child’s statements to his foster mother and therapist provide substantial evidence of Mother’s history of violent behavior toward Child and other immediate family members. Notably, the juvenile court found that during a therapy session, Child credibly reported to his therapist that he had witnessed Mother “hit his sibling on the head.” And at trial, Child’s foster mother testified that on multiple occasions, Child told her that Mother had hit him. Further, as the juvenile court found, Child, Brother, and Sister were all exposed to repeated abuse while in Mother’s care. Indeed, Child and Sister were found to be “siblings at risk” and “neglected” based on Mother’s rule 34(e) plea to the allegation that Brother suffered “severe physical abuse while in the care of [Mother].” This exposure occurred subsequent to the court’s 2017 determination that Child had been “abused by an unknown perpetrator” during a time when Mother “was the primary caregiver.”

¶31      The juvenile court did not abuse its discretion by deciding not to order reunification services for Mother. In reaching this decision, the court evaluated the evidence before it, and Mother has not demonstrated that the court’s decision was against the clear weight of the evidence.[7]

II. Strictly Necessary

¶32      Next, Mother argues the juvenile court erred in determining it was strictly necessary to terminate her parental rights to Child. In particular, Mother contends the court’s strictly necessary analysis was “improperly brief and conclusory.”

¶33     “Because the relationship between parent and child is constitutionally protected, a court may only terminate parental rights upon a finding that termination is strictly necessary to the best interest[] of the child.”[8] In re S.T., 2022 UT App 130, ¶ 25, 521 P.3d 887 (quotation simplified). “This analysis should be undertaken from the child’s point of view, not the parent’s.” In re B.T.B., 2020 UT 60, ¶ 63, 472 P.3d 827 (quotation simplified).

¶34      When evaluating whether termination is strictly necessary,

the juvenile court must address whether “the child can be equally protected and benefited by an option other than termination.” Id. ¶ 66. This inquiry cannot be satisfied merely by relying on the “categorical concern” that adoption offers the highest degree of permanency. In re J.A.L., 2022 UT 12, ¶ 25, 506 P.3d 606. Instead, the court must analyze the “particularized circumstances of the case” and “explore whether other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights.” In re S.T., 2022 UT App 130, ¶ 26 (quotation simplified). If another option exists where “the child can be equally protected and benefited,” then “termination is not strictly necessary” and “the court cannot order the parent’s rights terminated.” In re B.T.B., 2020 UT 60, ¶ 66.

¶35      In determining that it was strictly necessary to terminate Mother’s parental rights, the juvenile court explicitly stated that it “considered whether a placement with Permanent Guardianship would equally protect and benefit [Child].” Ultimately, the court decided against such an arrangement, finding it was not in Child’s best interest “as it does not provide the permanency that he seeks and wishes for.” Citing In re J.A.L., 2022 UT 12, 506 P.3d 606, Mother contends this conclusion was error because it is based on the categorical concern that a permanent guardianship is not as permanent as an adoption.[9] Mother’s argument is unavailing, however, because it selectively focuses on the court’s conclusion without considering it in the fuller context.

¶36      Here, the juvenile court was not presented with any feasible alternative option for a permanent guardianship placement, nor has Mother proposed one on appeal. At the time of trial, the only individuals that had previously been involved in the case were not feasible placement options. Indeed, Grandfather had failed to comply with the safety plan by allowing Mother to interact with Child outside his “line of sight,” which ultimately led to Child’s removal; Grandmother and Mother were estranged; and the State had initiated termination proceedings for Father.[10] Consequently, there was “no other option, short of termination and adoption, that would have otherwise been apparent to the juvenile court.” See In re D.G., 2022 UT App 128, ¶ 8 n.2, 522 P.3d 39, cert. denied, 527 P.3d 1106 (Utah 2023). And “where only one feasible custody option exists, the categorical concern that adoption is more stable than a permanent guardianship is not implicated.” In re S.T., 2022 UT App 130, ¶ 32 n.6 (quotation simplified).

¶37      In sum, given Child’s “strong emotional ties with [his] foster parents,” see id., and the lack of “any remotely feasible alternatives to termination and adoption,” see In re D.G., 2022 UT App 128, ¶ 8 n.2, it was entirely proper for the juvenile court to find that it was strictly necessary to terminate Mother’s parental rights.[11]

CONCLUSION

¶38      The juvenile court did not err in terminating Mother’s parental rights to Child. The court’s decision to deny Mother reunification services was not an abuse of discretion because the court’s decision is well supported by evidence in the record. And the court did not err when it found that termination of Mother’s parental rights was strictly necessary because there were no feasible alternative placement options other than termination and adoption. Affirmed.


[1] “We recite the facts in the light most favorable to the juvenile court findings.” In re S.T., 2022 UT App 130, n.2, 521 P.3d 887 (quotation simplified).

[2] Stepfather and Mother married one day after DCFS made the initial home visit to observe Child. Prior to the marriage, Stepfather spent “multiple nights in a row” in the home with Mother and Child.

[3] Although the juvenile court adjudicated Child’s status as to Mother in July 2020, the written order was not entered until August 2021—approximately one year after the adjudication hearing. Mother appealed the written adjudication order, arguing that she was deprived of due process by the court’s delay in entering the order, but this court affirmed.

[4] At the time reunification services for Mother were denied, an Interstate Compact on the Placement of Children (ICPC) request form had been sent to Child’s biological father (Father), who resides in South Carolina. Following denial of services for Mother, the juvenile court changed Child’s primary permanency goal from reunification with Mother to reunification with Father with a concurrent goal of adoption. During a subsequent permanency hearing, the court terminated reunification services to Father due to his failure to comply with any of the three ICPC requests initiated by DCFS and changed Child’s primary permanency goal to adoption with his current foster parents. Father’s parental rights to Child were then terminated in June 2022.

[5] Moreover, Mother’s position on this point seems to ignore the juvenile court’s own explanation of its reasoning to deny reunification services. At the disposition hearing, the court explicitly agreed with Mother’s counsel that Child did not qualify as a “severely abused child,” which would create a presumption against providing services. As a result, the court stated, “I don’t really attach the presumption that [Mother] should not receive reunification services. I’m kind of looking towards the presumption that she should . . . .”

[6] These factors are (1) “the fact that the minor was abused while the parent was under the influence of drugs or alcohol,” (2) “whether a parent continues to live with an individual who abused the minor,” (3) “testimony by a competent professional that the parent’s behavior is unlikely to be successful,” and (4) “whether the parent has expressed an interest in reunification with the minor.” See Utah Code § 78A-6-312(23)(b), (d), (f), (g) (2020).

[7] Mother challenges the adequacy of the juvenile court’s findings in support of its decision not to order reunification services by asserting that “the juvenile court made no findings in its reunification order.” But Mother’s assertion is overbroad; the juvenile court did make explicit factual findings regarding a number of the facts we have noted as supportive of its determination not to order services. And, while we acknowledge that the court did not explicitly disclose all the analytic steps it took in deciding not to provide services, this is a case where the court’s “unstated findings can be implied” because “it is reasonable to assume that the [juvenile] court actually considered the controverted evidence and necessarily made . . . finding[s] to resolve the controversy, but simply failed to record the factual determination[s] made.” Fish v. Fish, 2016 UT App 125, ¶ 22, 379 P.3d 882 (quotation simplified). It is not a case “where there is a matrix of possible factual findings and we cannot ascertain the [juvenile] court’s actual findings.” Hall v. Hall, 858 P.2d 1018, 1025–26 (Utah Ct. App. 1993) (quotation simplified). The evidence and arguments presented below, coupled with the juvenile court’s decision not to order services, necessarily imply that the juvenile court found the factors in Utah Code subsections 78A-6­312(23)(c) and (e) weigh against the provision of services based on the findings and evidence we have outlined above. Although on this record the unstated steps of the juvenile court’s analysis can be implied, we caution courts to ensure that the analytic steps taken in support of such fact-sensitive decisions are fully articulated in an oral or written ruling, order, or judgment. Detailed findings aid appellate review and reduce the likelihood of reversal.

[8] “To terminate a parent’s rights, Utah law requires that both elements of a two-part test are satisfied. First, the court must find that one or more of the statutory grounds for termination are present. Second, the court must find that termination of the parent’s rights is in the best interest[] of the child.” In re S.T., 2022 UT App 130, ¶ 25 n.5, 521 P.3d 887 (quotation simplified). Here, Mother acknowledges the juvenile court properly found at least one ground to terminate her parental rights. Accordingly, our focus is limited to only the court’s best interest determination.

[9] In a related vein, Mother also asserts the juvenile court’s decision was conclusory because the court focused only on negative testimony and overlooked the positive testimony of several of Mother’s therapists. But this position ignores that “Lilt is the role of the juvenile court, not this court, to assess the weight and credibility of expert witnesses and to choose among their testimonies.” In re G.V., 916 P.2d 918, 920 (Utah Ct. App. 1996) (per curiam). As such, we decline to reweigh the evidence.

[10] The lack of alternative options was reiterated through the trial testimony of Child’s great-uncle (Uncle). Uncle testified that Mother and Grandfather were estranged, largely due to Grandfather’s role in having Child removed from Mother’s custody, and that Mother and Grandmother were estranged because Grandmother is “a very toxic individual” and “abusive toward” Mother. Uncle also explained that although he wanted to be “involved” with Child, he was not in a position for Child to be placed with him. Lastly, Uncle noted that his brother had applied for Child to be placed with him, but his application was not approved.

[11] We again caution juvenile courts to “adequately disclose[]”— either in an oral or written ruling—all the “analytic steps” they take when they conduct a best interest analysis. Keiter v. Keiter, 2010 UT App 169, ¶ 21, 235 P.3d 782 (describing a challenge to the adequacy of findings as raising the issue of whether “the findings as a whole adequately disclosed the analytic steps taken by the trial court”). Here, however, even assuming that the court’s articulation of its strictly necessary analysis could have or even should have been more robust, without any feasible alternatives to termination and adoption, Mother cannot show that the court’s finding on this point was against the clear weight of the evidence. See generally In re J.J.W., 2022 UT App 116, ¶ 19, 520 P.3d 38 (“[I]n some instances (e.g., where the existence of a particular option would not be readily apparent to the court), a parent may need to expressly ask a [juvenile] court to consider a specific non-termination option in order to properly preserve the right to argue, on appeal, that the court did not adequately consider that option.”). But in cases where a feasible alternative placement option does exist, a court assessing strict necessity must explain, “on the record,” why adoption and termination of the parent’s rights would better further the child’s best interest than the alternative option. See In re B.T.B., 2020 UT 60, ¶ 74, 472 P.3d 827.

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

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What Must the Juvenile Court Consider on a Petition to Terminate a Parent’s Parental Rights?

Before terminating a parent’s rights, the court must find that termination is “strictly necessary to promote the child’s best interest.” This analysis must be undertaken from the child’s point of view. Utah law provides that termination is strictly necessary only when, after exploring possible placements for the child, the juvenile court concludes that no other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights. If the child can be equally protected and benefited by an option other than termination (such as permanent custody and guardianship awarded to someone other than the parent or parents), termination is thus not strictly necessary. The strictly necessary analysis is designed to ensure that the court pause long enough to thoughtfully consider the range of available options that could promote the child’s welfare and best interest. If a court has complied with its statutory obligations, its resultant best interest determination is entitled to deference by an appellate court. Long-term guardianship arrangements are typically only in a child’s best interest where the guardians and the parent have a working, relatively healthy relationship in which they are both willing to work together to preserve the parent-child relationship and where the child has a healthy relationship with both the guardian and the parent. Thus, when a parent and potential guardian have little to no relationship, the particular circumstances of the case may indicate that permanent custody and guardianship will not meet the children’s needs as well as termination of parental rights. This post is a summary of the law as stated in the recent Utah Court of Appeals opinion in the case of  In re K.R. – 2023 UT App 75 (filed July 13, 2023).

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The Father of My Child Told Me He Can Unilaterally Give Up His Parental Rights. Can He? He Thinks This Way He Will Get Out of Child Support. Can He Do This?

There is more than one question to answer here.

First, does a parent have the unilateral power simply to “give up” his or her parental rights (and accompanying obligations)? No. The only way to terminate a parent’s parental rights and obligations is by court order after a petition to terminate that parent’s parental rights has been filed and granted.

Can a parent have his/her parental rights terminated? Yes. By court order after a petition to terminate that parent’s parental rights has been filed (either by that parent himself or herself) and granted by the court.

Does the termination of parental rights (not to be confused with merely the desire or intent to have one’s parental rights terminated) also terminate a parent’s obligations to support that child? Yes.

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

(8) The father of my child told me he is giving up his parental rights. He thinks this way he will get out of child support. Can he do this? – Quora

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

In re K.R. – 2023 UT App 75

 

THE UTAH COURT OF APPEALS

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

PERSONS UNDER EIGHTEEN YEARS OF AGE.

R.S.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Per Curiam Opinion

No. 20230255-CA

Filed July 13, 2023

Third District Juvenile Court, Salt Lake Department

The Honorable Monica Diaz

No. 1207437

Kelton Reed and Lisa Lokken

Attorneys for Appellant

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

Verdoia, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

Before JUDGES MICHELE M. CHRISTIANSEN FORSTER, DAVID N.

MORTENSEN, and AMY J. OLIVER.

PER CURIAM:

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

¶9        Mother challenges the juvenile court’s determination that termination of her rights was strictly necessary. “Whether a parent’s rights should be terminated presents a mixed question of law and fact.” In re B.W., 2022 UT App 131, ¶ 45, 521 P.3d 896 (quotation simplified), cert. denied, 525 P.3d 1269 (Utah 2023). “We will overturn a termination decision only if the juvenile court either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” Id. (quotation simplified).

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

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

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

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

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

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

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

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

 

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

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

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2023 UT 11 – In Re C.D.S. And W.E.S – Appeal of Termination Parental Rights

2023 UT 11 – In re C.D.S. and W.E.S

IN THE SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH, in the interest of C.D.S. and W.E.S.,

persons under eighteen years of age.

A.S.,

Petitioner,

v.

STATE OF UTAH,

Respondent.

No. 20220580

Heard February 10, 2023

Filed June 8, 2023

On Certiorari to the Utah Court of Appeals

Eighth District Juvenile, Uintah County

The Honorable Ryan B. Evershed

Nos. 1178352, 1184710

Utah Court of Appeals, Salt Lake

No. 20220100

Attorneys:

K. Andrew Fitzgerald, Moab, for petitioner,

Sean D. Reyes, Att’y Gen., Carol L. C. Verdoia, John M. Peterson,

Asst. Atty’s Gen., Salt Lake City, for respondent

Martha Pierce, Salt Lake City, Guardian ad Litem for C.D.S.

and W.E.S.

ASSOCIATE CHIEF JUSTICE PEARCE authored the opinion of the Court,

in which CHIEF JUSTICE DURRANT, JUSTICE PETERSEN,

JUSTICE POHLMAN, and JUDGE CORNISH joined.

Having recused herself, JUSTICE HAGEN does not participate herein;

DISTRICT COURT JUDGE RITA M. CORNISH sat.

 

ASSOCIATE CHIEF JUSTICE PEARCE, opinion of the Court:

INTRODUCTION

¶1 The juvenile court terminated the parental rights of a mother and father. They each had fifteen days to appeal. Father appealed within that window. Mother filed her notice of appeal on the wrong side of the deadline. The court of appeals dismissed Mother’s appeal as untimely.

¶2 Mother argues that the court of appeals erred for a couple of reasons. We reject Mother’s argument that a minute entry that came after the court signed the final order restarted the clock on her time to appeal. But we agree with her that Utah Rule of Appellate Procedure 52(c)—together with Father’s timely appeal—extended her time to file a notice of appeal. We reverse and remand to the court of appeals.

BACKGROUND

¶3 In September 2019, the Division of Child and Family Services (DCFS) petitioned the juvenile court to remove two-year-old Chester from Mother and Father’s custody. At the time, Mother was pregnant with their second child, Winnie.[1]

¶4 The juvenile court placed Chester in the temporary custody of his aunt and uncle. The court also ordered DCFS to provide Mother and Father with reunification services.

¶5 After Winnie was born, DCFS initially allowed Winnie to stay with Mother and Father. A few months after Winnie’s birth, however, DCFS filed a “Motion for Expedited Placement and Temporary Custody” for Winnie. From the beginning of 2020 to the beginning of 2021, the juvenile court conducted several permanency and review hearings for the children. At the end of 2020, the court authorized Chester to live with Mother and Father in a trial home placement.

¶6 At a hearing a few months later, the juvenile court determined that, while Mother and Father had substantially complied with the reunification plan, reunification was not likely to be appropriate within the next ninety days. The court terminated DCFS’s reunification services and changed the children’s primary permanency goal from reunification to adoption.

¶7 In November 2021, the juvenile court held a trial. At the trial’s conclusion, the court indicated that it would enter an order terminating Mother’s and Father’s parental rights.

¶8 The juvenile court entered the written termination order (Termination Order) on January 7, 2022, which terminated Mother’s and Father’s parental rights. In it, the court detailed the grounds it relied upon to terminate Mother’s and Father’s parental rights. The juvenile court found that DCFS made reasonable efforts to provide reunification services to Mother and Father, and found that it was in the best interest of the children for Mother’s and Father’s parental rights to be terminated and for the children to be adopted.

¶9 The Termination Order stated: “This is a final and appealable order. There will be no further order after this as related to the parent’s [sic] parental rights.” It also informed Mother and Father that they had “15 days from the signing of this order to file a Notice of Appeal with the Juvenile Court.”[2]

¶10 On January 10, 2022, the juvenile court filed a minute entry titled “Minutes.”[3] The Minutes contained a condensed recitation of what had occurred at trial. Among other particulars, it detailed who was present in the courtroom, the names of those who testified, and the exhibits the court entered into evidence. The Minutes also contained several findings of fact and ordered the termination of Mother’s and Father’s parental rights.

¶11 On January 24, 2022, Father filed his notice of appeal.[4] On January 25, Mother’s trial counsel filed a notice of appeal.

¶12 The court of appeals determined that Mother’s appeal was not filed within fifteen days of the Termination Order, as Utah Rule of Appellate Procedure 52(a) requires. The panel dismissed the appeal for lack of jurisdiction. This court granted certiorari review.

¶13 Mother contends that her appeal was timely filed for at least one of two reasons. Mother first points to the Minutes that the court filed several days after it entered the written termination order. Mother argues that the minute entry constitutes a new appealable order and that she had fifteen days from the entry of that order to file her notice of appeal. The State and the guardian ad litem disagree.

¶14 Mother next asserts that the Utah Rules of Appellate Procedure allow her to file a notice of appeal within five days of Father’s timely filed notice. Rule 52(c) states that after a party files a notice of appeal, “any other party” may file its notice of appeal within five days. Mother asserts that she is “any other party” within the rule’s meaning. The State largely agrees with Mother’s argument. The guardian ad litem does not.

STANDARD OF REVIEW

¶15 “Whether jurisdiction is proper is a legal question that we review for correctness . . . .” State ex rel. A.C.M., 2009 UT 30, ¶ 6, 221 P.3d 185. The court of appeals based its decision on an interpretation of the Utah Rules of Appellate Procedure. “The interpretation of a rule of procedure is a question of law that we review for correctness.” Arbogast Family Tr. v. River Crossings, LLC, 2010 UT 40, ¶ 10, 238 P.3d 1035 (cleaned up).

ANALYSIS

I. THE MINUTE ENTRY DID NOT EXTEND MOTHER’S TIME TO APPEAL

¶16 The court of appeals held that it lacked jurisdiction over Mother’s appeal because it was filed outside the fifteen-day timeframe that Utah Rule of Appellate Procedure 52(c) provides. Mother argues that the court of appeals erred when it calculated the fifteen-day period from the entry of the Termination Order and not the subsequently entered Minutes. Mother argues that she is entitled to appeal from the Minutes and that her notice of appeal of that ruling was timely filed.

¶17 The State and the guardian ad litem argue that the court of appeals correctly held that the minute entry was not a separately appealable order. The State claims that the Minutes were “a mere ministerial document from which the judgment must be drawn” and that the minute entry was not an appealable order because it “was a belated entry that did not modify or change the substance of the Termination Order.” The guardian ad litem similarly argues that the Termination Order “triggered the timing for the notice of appeal” and that the minute entry was an inconsequential “after-the-fact ministerial document[].”

¶18 The clock to file a notice of appeal starts when “the court directs that no additional order need be entered.” Giusti v. Sterling Wentworth Corp., 2009 UT 2, ¶ 35, 201 P.3d 966. There can be no doubt that the Termination Order met this test. The Order stated: “There will be no further order after this as related to the parent’s [sic] parental rights,” and informed Mother and Father that they had fifteen days to appeal.[5]

¶19 This statement in the Termination Order alone, of course, does not answer the question this case presents. Mother asks what the effect is of a subsequently entered order on the same topic as a final appealable order. This is a question that we answered long ago. If one order starts to run the time for appeal, the entry of another order does not restart the clock if the later entry does not change the substance of the first.

¶20 For example, in Adamson v. Brockbank, we held that the defendants could file their appeal from an order amending an original judgment, even though the date to file a timely appeal from the original order had already passed. Adamson v. Brockbank, 185 P.2d 264, 268 (Utah 1947). The amended order corrected an inconsistency in the original judgment. Id. This correction clarified the liability of a defendant, an alteration we held was significant enough to change the character of the judgment. Id. We articulated the principle that, “where a belated entry merely constitutes an amendment or modification not changing the substance or character of the judgment, such entry . . . relates back to the time the original judgment was entered.” Id.

¶21 We relied on this holding in State v. Garner, 2005 UT 6, 106 P.3d 729. There, a modification to an original judgment clarified the nature of the defendant’s conditional plea in greater detail. Id. ¶ 12. But this was “a redundant addition, not a material change” and thus did not extend the time for Garner’s appeal. Id.¶¶ 11, 13.

¶22 Here, the Minutes did not amend or modify the substance of the Termination Order. The Minutes recited short findings of fact and repeated the conclusion that the parental rights be terminated. It did not change the parents’ rights or the children’s status. The minute entry did not amend or modify the Termination Order, so the time to appeal ran from the entry of the Termination Order. The court of appeals did not err when it rejected Mother’s argument.

II. RULE 52(C) EXTENDED MOTHER’S TIME TO APPEAL

¶23 Mother also argues that the court of appeals incorrectly concluded that Father’s appeal, filed one day before Mother’s, did not extend Mother’s time to appeal. The court of appeals held that rule 52(c) of the Utah Rules of Appellate Procedure “relates to cross-appeals, i.e., appeals filed by someone who has already been made a party to the appeal.” The court, therefore, held that Mother was “required to file her own timely appeal” because she “was not a party to Father’s appeal.”

¶24 Mother argues that rule 52(c) allows a party five days to file a notice of appeal from the date another party to the case files its notice of appeal.[6] The State agrees with Mother and contends the court of appeals incorrectly determined that “rule 52(c) did not render Mother’s notice of appeal timely.”[7] The State expresses uncertainty on whether Mother has initiated her own appeal or must be limited to the issues presented in Father’s appeal, but it still concludes that the “plain language of appellate rule 52(c) means that Mother has, at least, successfully initiated a cross-appeal.”[8]

¶25 “When we interpret a procedural rule, we do so according to our general rules of statutory construction.” Arbogast Family Tr. v. River Crossings, LLC, 2010 UT 40, ¶ 18, 238 P.3d 1035. In statutory construction, “our primary goal is to evince the true intent and purpose of the Legislature,” the “best evidence” of which “is the plain language of the statute itself.” Zilleruelo v. Commodity Transporters, Inc., 2022 UT 1, ¶ 18, 506 P.3d 509 (cleaned up). Thus, “[w]e interpret court rules, like statutes and administrative rules, according to their plain language.” Arbogast Family Tr., 2010 UT 40, ¶ 18 (cleaned up). Although we do this with the added wrinkle that, when we interpret the Utah Rules of Procedure, the intent we most often attempt to discern through the text is ours, and not the Legislature’s.

¶26 Rule 52(c) is straightforward: “If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 5 days after the first notice of appeal was filed.” UTAH R. APP. P. 52(c). Nothing in the language of the rule itself limits the phrase “any other party” the way the court of appeals did. That is, nothing in the plain text limits the rule’s reach to a party who is already part of the appeal.

¶27 The court of appeals’ reading of rule 52(c) appears to have been influenced by the rule’s title. We put the label “Time for cross-appeal” on that subsection. However, we have noted that “[t]he title of a statute is not part of the text of a statute, and absent ambiguity, it is generally not used to determine a statute’s intent.” Blaisdell v. Dentrix Dental Sys., Inc., 2012 UT 37, ¶ 10, 284 P.3d 616 (cleaned up). We are in what some would consider good company with that proposition. A prominent treatise on the topic counsels that a “title or heading should never be allowed to override the plain words of a text.” ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 222 (2012).[9]

¶28 It nevertheless appears the court of appeals relied on this title and imported the language “party to this appeal” into the rule, such that it would read: “If a timely notice of appeal is filed by a party, any other party [who was made party to the appeal] may file a notice of appeal within 5 days after the first notice of appeal was filed.” UTAH R. APP. P. 52(c).

¶29 As Mother points out, “[t]he rules do not define ‘a party’ as something different than those who were parties to the proceedings before the district or juvenile court.” The court of appeals’ dismissal incorrectly “would define ‘a party’ in the lower courts as different than ‘a party’ before the appellate courts on the same matter.”

¶30 Our reading of the rule is buttressed by how we understand rule 52(c) came to be. It is based on rule 4 of the Utah Rules of Appellate Procedure, which is, in turn, based on rule 4(a)(3) of the Federal Rules of Appellate Procedure.[10] See UTAH RULES OF APPELLATE PROCEDURE: WITH NOTES OF THE SUPREME COURT ADVISORY COMMITTEE 14 (1984) (on file with the Utah State Law Library) (stating that rule 4(d) “adopts substantially the time period and concept of cross-appeal in Rule 4(a)(3)” of the Federal Rules of Appellate Procedure).

¶31 Rule 4(a)(3) of the Federal Rules of Appellate Procedure gives a party fourteen days after another party appeals to file its appeal.[11] Wright and Miller’s treatise on federal procedure explains that rule 4(a)(3) allows any party to take advantage of the additional time to file a notice of appeal. “The 14-day provision is not limited to cross-appeals, and plainly encompasses appeals by other parties such as co-parties or third-party defendants.” 16A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE: JURISDICTION § 3950.7 (5th ed. 2022) (Westlaw).[12]

¶32 This interpretation reflects the views of the advisory committee. When the committee recommended a substantive amendment to this rule, it noted:

The added time which may be made available by the operation of the provision is not restricted to cross appeals in the technical sense, i.e., to appeals by parties made appellees by the nature of the initial appeal. The exception permits any party to the action who is entitled to appeal within the time ordinarily prescribed to appeal within such added time as the sentence affords.

Advisory Committee Note to 1966 Amendments to Federal Rule of Civil Procedure 73(a), 39 F.R.D. 69, 131 (1966) (amending then rule 73(a) of the Federal Rules of Civil Procedure, a rule later incorporated into the appellate rules).

¶33 In other words, if Mother were in federal court, or in a non-child welfare case in a Utah court, her appeal would undoubtedly be timely filed under rules that in all aspects—other than title and time frame—mirror rule 52(c). The only part of rule 52(c) that suggests a different result is the title, and, as we have noted, we don’t use titles that way.

¶34 And here, there is additional reason to believe that we did not intend to use the rule’s title to work a substantive limitation on the rule’s text. In 2003, the Advisory Committee on the Utah Rules of Appellate Procedure heard from an assistant attorney general in the Child Welfare Division who “described child welfare proceedings and the need to expedite appeals from parental rights terminations” to “help stabilize” children’s lives. Approved Minutes, SUPREME COURT’S ADVISORY COMMITTEE ON THE UTAH RULES OF APPELLATE PROCEDURE, ADMINISTRATIVE OFFICE OF THE COURTS (hereinafter Approved Minutes, SUPREME COURT’S ADVISORY COMMITTEE) (Nov. 19, 2003).

¶35 The need for speed was reiterated at a 2017 committee meeting, which discussed amendments to rule 52 and other child welfare appellate rules. The minutes of that meeting laid out that “[t]he purpose of these amendments is to expedite adoption and termination of parental rights appeals from the district courts and put them on the same footing as appeals from child welfare proceedings in the juvenile courts.” Approved Minutes, SUPREME COURT’S ADVISORY COMMITTEE (Sept. 7, 2017).

¶36 The rules committee also discussed the relationship between rule 52 and rule 4 when a member “proposed, and the committee agreed, that Rule 52 should be amended to make it consistent with the recent changes that were approved to Rule 4(b).” Approved Minutes, SUPREME COURT’S ADVISORY COMMITTEE (May 5, 2016). Thus, it appears the drive behind these rules was not to have rule 52(c) exclude certain appeals that rule 4 includes but to maintain the structure of rule 4 while expediting child welfare proceedings.[13]

¶37 The guardian ad litem offers a different interpretation of the rule than Mother, the State, and the court of appeals. She avers that Mother was a party to her own termination proceedings but was never, even at the district court level, a party to Father’s termination proceedings. The guardian ad litem thus contends that Mother was not “any party” in the context of the rule because she was not a party to the proceedings Father appealed.

¶38 The guardian ad litem supports this argument with something we said in State ex rel. A.C.M. There, we noted that we “treat the termination of each parent’s rights separately for purposes of finality and appealability.” State ex rel. A.C.M., 2009 UT 30, ¶ 12, 221 P.3d 185. The guardian ad litem in A.C.M. claimed that the order terminating the father’s parental rights was not a final order because the mother’s rights had not yet been terminated. Id. We reasoned that the order terminating the father’s rights was “final and appealable because it constitute[d] a change in the child’s status” with respect to the father. Id. That also prompted the observation on which the guardian ad litem relies.

¶39 We stand by the observation that we can treat the termination of each parent’s rights separately for the purposes of finality and appealability. But that is not to say that parents cannot be parties to the same case. And A.C.M. says nothing about the applicability of rule 52(c) when the system adjudicates both parents’ rights in the same action and addresses them in the same order.

¶40 The guardian ad litem claims that there was one termination proceeding for Father and a separate one for Mother—and that the juvenile court consolidated these cases without making either parent party to the other’s case. The record before us does not bear that out. A separate case was initiated relating to each child. Mother and Father were parties in both cases. The juvenile court consolidated Chester’s case and Winnie’s case, though each case maintained its own case number. The court did not—indeed, it could not— consolidate the parents’ cases, because those cases did not exist. The court conducted a single trial in which both Mother and Father presented evidence and arguments. That trial resulted in a single order that lists both Mother and Father as parties.

¶41 On these facts, we have no trouble concluding that Mother was “another party” within the meaning of Utah Rule of Appellate Procedure 52(c) and is entitled to the additional five days to file a notice of appeal.[14]

III. WE DECLINE TO ADDRESS MOTHER’S CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL

¶42 Mother spends a considerable portion of her brief arguing that her appeal should be considered timely because her counsel was ineffective for filing past the fifteen-day deadline. Mother also argues she was prejudiced by her denial of the right to appeal.

¶43 Mother asked us to grant certiorari review on this issue. We did not. We note for future reference that an order that does not grant certiorari on an issue is a pretty good signal that we do not intend to address the question.[15]

CONCLUSION

¶44 The court of appeals correctly ruled that the time for Mother to file her appeal ran from the entry of the Termination Order and not the subsequent Minutes. The court of appeals erred when it concluded that Utah Rule of Appellate Procedure 52(c) only applied to parties filing a cross-appeal. Mother timely filed her notice of appeal. We reverse and remand to the court of appeals to consider Mother’s appeal.

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

 

[1] Chester and Winnie are pseudonyms.

[2] The Utah Rules of Appellate Procedure provide the fifteen-day timeline in child welfare proceedings. Rule 52(a) states that in this setting, a notice of appeal “must be filed within 15 days of the entry of the order appealed from.” UTAH R. APP. P. 52(a).

[3] As we march through our analysis, we will refer to this document as both the minute entry and the Minutes.

[4] The fifteenth day was Saturday, January 22, 2022. By operation of rule 22(a) of the Utah Rules of Appellate Procedure, which does not require parties to file on Saturdays and Sundays, the time for filing the petition was extended to the following Monday, January 24. See UTAH R. APP. P. 22(a).

[5] Mother questions whether our precedent on the finality of orders applies to child welfare proceedings. It generally does, though our rules and precedent make some distinction between child welfare and non-child welfare cases. For example, rule 58A of the Utah Rules of Civil Procedure requires that “[e]very judgment and amended judgment must be set out in a separate document.” There is no such requirement in child welfare proceedings. See UTAH R. APP. P. 52(a); State ex rel. A.C.M., 2009 UT 30, ¶ 10, 221 P.3d 185. But no rule or precedent alters the conclusion that a belated entry or modification that does not change the substance of a final order does not create a new final and appealable order.

[6] Rule 52(c) of the Utah Rules of Appellate Procedure, titled “Time for cross-appeal,” reads:

If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 5 days after the first notice of appeal was filed, or within the time otherwise prescribed by paragraphs (a) and (b) of this rule, whichever period last expires.

[7] The State—both in its briefs and during oral argument— acknowledges that rule 52(c)’s plain language supports Mother’s argument. We commend the State for its candor.

[8] The guardian ad litem disagrees for reasons we will discuss and dismiss in a page or two.

[9] That is not to say that titles are irrelevant. When “we need help understanding an ambiguous provision, titles are persuasive and can aid in ascertaining the statute’s correct interpretation and application.” Graham v. Albertson’s LLC, 2020 UT 15, ¶ 24, 462 P.3d 367 (cleaned up). We just don’t use titles to create ambiguity. This is because titles are generally shorthand descriptions of what is to follow and can miss some of the complexities of the text to come.

[10] Utah Rule of Appellate Procedure 4 states, in relevant part: “If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days after the date on which the first notice of appeal was filed.” UTAH R. APP. P. 4(d). Unlike rule 52(c), it gives “any other party” fourteen days (instead of five) to file an appeal. In addition, rule 4(d) is titled “Additional or cross-appeal” rather than “Time for cross-appeal.” Compare UTAH R. APP. P. 4(d), with UTAH R. APP. P. 52(c).

[11] The federal rule bears the title “Multiple Appeals.” FED. R. APP. P. 4(a)(3).

[12] Other treatises echo this understanding. See, e.g., JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE: CIVIL § 304.11 (2023) (LexisNexis) (“This provision is not restricted, however, to parties named as appellees in the initial appeal.”); 18 BENDER’S FEDERAL PRACTICE FORMS, COMMENT ON APPELLATE RULE 4 (2022) (LexisNexis) (“This provision is not restricted to parties named as appellees in the initial appeal. Any party to the action is entitled to the benefit of the additional 14-day period.”). This is also the way several federal cases have interpreted the rule. See, e.g.N. A,ii. Sav. Ass’n v. Metroplex Dev. P’ship, 931 F.2d 1073, 1077–78 (5th Cir. 1991); Melton v. Frank, 891 F.2d 1054, 1056 n.1 (2d Cir. 1989); Jackson Jordan, Inc. v. Plasser A,ii. Corp., 725 F.2d 1373, 1374–76 (Fed. Cir. 1984).

[13] We encourage the Advisory Committee on the Utah Rules of Appellate Procedure to look at clarifying the title so it better reflects the rule’s language and intent.

[14] 14 There is logic underlying rule 52(c). There may be occasions when a party’s calculus on whether to file an appeal may be impacted by another party’s decision to appeal. Using the facts of this case, for example—and we stress that this is a hypothetical and not a reflection of what we think actually occurred—it is entirely possible that a person in Mother’s position might decide not to appeal the termination of her parental rights if she thinks it will only delay adoption of the children. Mother’s thinking could dramatically change if her co-parent appeals and the possible outcomes include not only adoption, but restoration of Father’s parental rights and not hers. In that case, it makes sense that our rules would give Mother a few additional days to assess the changed landscape and decide whether to appeal.

[15] The guardian ad litem advocates that we task our rules committee with considering a new rule that would “reinstate the time for appeal in child welfare cases where a parent’s right to effective counsel is implicated.” We have previously recognized that a trial court may extend the time for appeal in a proceeding on termination of parental rights if a parent was denied effective assistance of counsel. State ex rel. M.M., 2003 UT 54, ¶¶ 6, 9, 82 P.3d 1104. But this is not the same as a rule that says the court shall reinstate the time for appeal when a parent can show that they have been denied effective representation. We encourage the Advisory Committee on the Utah Rules of Appellate Procedure to explore such a rule, and we thank the guardian ad litem for the excellent suggestion.

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2023 UT App 55 – In re F.C.G.

2023 UT App 55 – In re F.C.G.

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF F.C.G.,

A PERSON UNDER EIGHTEEN YEARS OF AGE.

L.C.G.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Per Curiam Opinion

No. 20221129-CA

Filed May 25, 2023

Third District Juvenile Court, Salt Lake Department

The Honorable Monica Diaz

No. 1205462

Julie J. Nelson Attorney for Appellant

Sean D. Reyes and John M. Peterson,

Attorneys for Appellee

Martha Pierce Guardian ad Litem

Before JUDGES GREGORY K. ORME,

MICHELE M. CHRISTIANSEN FORSTER, and AMY J. OLIVER.

PER CURIAM:

¶1        L.C.G. (Mother) appeals the juvenile court’s order terminating her parental rights. We affirm.

¶2        “To terminate parental rights, a juvenile court must make two separate findings.” In re C.T., 2018 UT App 233, ¶ 12, 438 P.3d 100 (quotation simplified). First, a court must find by clear and convincing evidence that there is at least one statutory ground for termination.” Id. (quotation simplified). “Second, “a court must find that termination of the parent’s rights is in the best interest of the child.” Id. Because a parent’s rights are constitutionally protected, a court may terminate parental rights only if it finds that termination is strictly necessary for the best interest of a child. See id.

¶3 Mother does not challenge the juvenile court’s determination that there were statutory grounds supporting the termination of her parental rights, or the court’s determination that doing so was strictly necessary and in F.C.G.’s (Child) best interest. However, the record supports the juvenile court’s determination that there were statutory grounds supporting the termination of Mother’s parental rights, that termination was strictly necessary, and that terminating Mother’s rights was in Child’s best interest.

¶4        Instead, Mother asserts that the juvenile court erred by determining that she waived her right to counsel, and by permitting counsel to withdraw at trial. Specifically, Mother asserts that the juvenile court violated rule 53(c) of the Utah Rules of Juvenile Procedure and her due process rights by permitting counsel’s withdrawal. “We review waiver of a statutory right to counsel for correctness but grant the trial court a reasonable measure of discretion when applying the law to the facts.” In re A.B., 2017 UT App 99, ¶ 5, 400 P.3d 1107 (quotation simplified). The “termination of parental rights involves a statutory right to counsel, not a constitutional right to counsel. See id. Accordingly, “waiver of a statutory right to counsel is proper as long as the record as a whole reflects the parent’s reasonable understanding of the proceedings and awareness of the right to counsel.” Id. (quotation simplified).

¶5        Rule 53(c) provides that a motion to withdraw may be made orally before the court, and counsel’s request to withdraw should demonstrate a parent’s familiarity with his or her right to counsel, the withdrawal of counsel, the right to appeal, and post-judgment motions. Utah R. Juv. P. 53(c)(1). The record demonstrates that Mother was aware of the rights identified in rule 53(c). On November 30, 2021, the juvenile court appointed counsel for Mother. Based on Mother’s lack of contact with counsel, and her failure to meaningfully participate in the proceeding, the court permitted counsel to withdraw.

¶6        On October 13, 2022, Mother appeared at the termination trial. Knowing that counsel had been permitted to withdraw, Mother once again requested the appointment of counsel. The juvenile court re-appointed Mother’s counsel and continued the trial until December 12, 2022, so that Mother could participate in trial preparations and trial. The court scheduled a pretrial hearing for November 7, 2022. Mother failed to appear at the pretrial hearing. Mother also failed to appear at the December 12, 2022 trial.

¶7        The court determined that Mother received notice of both the pretrial hearing and the continued trial when she appeared on October 13, 2022. Mother failed to communicate with counsel and assist in trial preparations. Mother’s counsel attempted to contact Mother at least twelve times prior to the continued trial. Mother’s counsel received only one email from Mother, but it was not substantive, and it did not address any of counsel’s “questions or advice or anything that I had given to her.” The court determined that based on Mother’s nonappearances in court, plus her lack of contact with counsel, Mother waived her right to counsel.

¶8        Mother next argues that the court violated her due process rights. Specifically, she argues that she had a constitutional right to counsel, beyond that of a statutory right to counsel. Mother asserts that “the Utah Supreme Court determined that, under certain factual circumstances, a parent facing termination of their parental rights has a right to counsel under the Due Process Clause of the Fourteenth Amendment of the federal constitution.” In re adoption of K.A.S., 2016 UT 55, ¶ 35, 390 P.3d 278. Mother argues that a constitutional right to counsel requires a heightened showing that a parent knowingly and voluntarily waived the right to counsel, rather than whether the “record as a whole reflects the parent’s reasonable understanding of the proceedings and awareness of the right to counsel.” In re A.B., 2017 UT App 99, ¶ 5.

¶9        Mother acknowledges that the Supreme Court did not hold that parents are always entitled to the constitutional right to counsel. The Supreme Court determined that “where, for example, the parent has not taken an interest in the proceedings and the weight of the evidence of the parent’s lack of interest is great—the presumption against the right to counsel will not be overcome.” In re adoption of K.A.S., 2016 UT 55, ¶ 38 (quotation simplified). Given the juvenile court’s determinations regarding Mother’s nonappearances in court, her lack of contact with counsel, and her lack of participation, the record supports the juvenile court’s determination that Mother did not take an interest in the proceedings, and the weight of the evidence of Mother’s lack of interest is great. The record does not support that Mother had a constitutional right to counsel, or that the court erred in its waiver determination and allowing counsel to withdraw.

¶10      Mother next asserts that she received ineffective assistance of counsel when counsel withdrew, rather than requesting another trial continuance or additional appointment of counsel. To prevail on an ineffective assistance of counsel claim, Appellant must show: (1) her counsel’s performance was deficient and (2) the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 669, 687 (1984); In re C.M.R., 2020 UT App 114, ¶ 19, 473 P.3d 184 (applying Strickland to an ineffective assistance of counsel claim in a child welfare proceeding). To demonstrate deficient performance, Mother must persuade this court that, considering the record as a whole, counsel’s performance was objectively unreasonable. State v. Scott, 2020 UT 13, ¶ 36, 462 P.3d 350. To demonstrate prejudice, Mother must show that “there exists a reasonable probability that the case would have had a different outcome had trial counsel not performed deficiently.” State v. Florez, 2020 UT App 76, ¶ 43, 465 P.3d 307.

¶11      Mother asserts that counsel was deficient because he did not adequately comply with rule 53(c) of the Utah Rules of Juvenile Procedure. However, as addressed above, it was apparent from the record that Mother was familiar with her rights identified in rule 53(c). See Utah R. Juv. P. 53(c)(1)(iii). Counsel had been appointed twice in Mother’s proceeding, and the court permitted counsel’s withdrawal due to Mother’s refusal to communicate with counsel, participate, and to attend court. Counsel’s decision to withdraw, rather than request yet another continuance or additional counsel was not deficient. “Because the decision not to pursue a futile motion is almost always a sound trial strategy, counsel’s failure to make a motion that would be futile if raised does not constitute deficient performance.” State v. Powell, 2020 UT App 63, ¶ 20, 463 P.3d 705. Given the required short time frames in child welfare cases, Mother’s nonappearances, lack of communication with counsel, and her lack of participation, the record does not support Mother’s claim that counsel was ineffective for declining to request yet another continuance or requesting that the court appoint another attorney.

¶12      Mother next argues that the doctrine of structural prejudice suggests that she was prejudiced when counsel withdrew at trial. See State v. Bond, 2015 UT 88, ¶ 40, 361 P.3d 104. To satisfy this part of Strickland’s test, Mother must demonstrate particularized prejudice in her specific case. See State v. Juarez, 2021 UT App 53, ¶ 27, 489 P.3d 231. “Allegations of structural prejudice, or prejudice per se, are generally insufficient in the context of an ineffective assistance claim.” Id. (quotation simplified). However, we need not address both components of the Strickland inquiry if we determine that Mother made an insufficient showing on either prong. See id. ¶ 26. Because the record does not support Mother’s claim that counsel was deficient, we need not address this claim. See id.

¶13      The juvenile court’s order terminating Mother’s parental rights is affirmed.

 

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

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State in Interest of P.J.R., 2023 UT App 27

THE UTAH COURT OF APPEALS

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

C.S.,

Appellant,

V.

STATE OF UTAH,

Appellee.

Opinion

No. 20220264-CA

Filed March 23, 2023

Sixth District Juvenile Court, Manti Department

The Honorable Brody L. Keisel

No. 1097003

Emily Adams, Freyja Johnson, and Caleb Proulx,
Attorneys for Appellant

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

Martha Pierce, Guardian ad Litem

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and DAVID N.
MORTENSEN concurred.

HARRIS, Judge:

¶1        C.S. (Mother) appeals an order terminating her parental rights regarding P.J.R. (Child). But Mother does not contest the juvenile court’s findings that there were grounds for termination and that termination was in Child’s best interest. Instead, Mother limits her appellate challenge to the court’s determination that the Division of Child and Family Services (DCFS) made reasonable efforts, during the course of the case, toward reunification of Mother and Child. Specifically, she claims that the court applied an incorrect evidentiary standard in arriving at its reasonable efforts determination and—alternatively—challenges the merits of that ultimate determination. We find Mother’s arguments unpersuasive, and therefore affirm.

BACKGROUND

¶2        In 2019, DCFS filed a petition seeking protective supervision of Mother’s five children, including Child. In the petition, DCFS alleged that Mother had abused and neglected Child, and specifically alleged (among other things) that, during an incident in the waiting room of a family counseling center, Mother “grabbed [Child] by the back-collar area of his shirt in such a manner that it restricted his ability to breathe and caused him to choke,” and then “shoved his face into the corner with force.” Even after Child “told Mother he was having difficulty breathing and that Mother was hurting him,” Mother “did not let up on his shirt or the forcing of his face into the corner.” At an ensuing shelter hearing, the juvenile court placed all five children in the temporary custody of DCFS.

¶3        Mother responded to the petition by admitting some of the State’s allegations and, with respect to the rest, neither admitting nor denying them; this response resulted in the court deeming the State’s allegations true. See Utah R. Juv. P. 34(e) (“A respondent may answer by admitting or denying the specific allegations of the petition, or by declining to admit or deny the allegations. Allegations not specifically denied by a respondent shall be deemed true.”). On the basis of Mother’s responses, the court adjudicated Child as abused and neglected by Mother. Mother appealed that adjudication order, and this court affirmed it but remanded for additional proceedings on issues not material to this appeal. See In re C.M.R., 2020 UT App 114, ¶ 33, 473 P.3d 184.

¶4        Following adjudication, the court issued a disposition order in September 2019, setting the primary permanency goal as reunification and the concurrent permanency goal as adoption. In connection with setting reunification as the primary permanency goal, the court adopted a service plan—prepared with Mother’s input and cooperation—and found, “by clear and convincing evidence,” that fulfillment of the plan’s terms would “constitute reasonable efforts on the part of . . . DCFS to finalize the permanency goals,” including reunification. Among other things, the plan required DCFS to “follow up with [Child]’s therapist to monitor his progress in therapy,” to follow up with Mother’s therapist regarding her treatment, to promptly communicate with Mother, to “assess [Mother]’s increase in parenting skills during supervised parent-time,” and to ensure that Child’s living, academic, and health needs were being addressed.

¶5        As the case progressed, friction arose between Mother and the DCFS caseworker. As Mother showed at trial, the conflict became apparent at one supervised visit between Mother and her daughters; in a “heated interaction,” the caseworker cut the visit short after observing Mother say certain things to her daughters that the caseworker deemed inappropriate. On a later occasion, the caseworker sent a text message to the guardian ad litem lamenting the fact that Mother received visitation with one of her daughters at all, noting that “[t]hese kids have been the victims of severe physical and emotional abuse for years.” Eventually, Mother refused to communicate with the caseworker (other than by text message) without her attorney present. Even the State’s attorney noticed that the caseworker was having a hard time keeping her “emotions out of this case,” and admonished the caseworker to be more circumspect in her communication.

¶6        Mother also came to believe that the caseworker was interfering with family therapy during the course of the case. Under the service plan, family therapy involving Mother and Child was to begin when Mother’s and Child’s therapists both recommended it, and the caseworker was supposed to follow up with both therapists. In December 2019, the caseworker apparently told Mother that Child’s therapist did not recommend face-to-face visits when, in fact, the caseworker had not yet communicated with Child’s therapist. The first documented communication between the caseworker and Child’s therapist about family therapy was in June 2020, about nine months after the service plan was put in place. However, some evidence shows that the caseworker had “reached out to [Child]’s therapist regularly throughout the case,” and that as of May 2020, Child’s therapist did not “recommend family therapy with [Mother] at this time.” But when the caseworker was asked at trial whether she communicated with Child’s therapist prior to June 2020, she stated that she did not recall. When the caseworker did reach out to Child’s therapist inquiring about family therapy, the therapist responded that before family therapy would be recommended, Mother would need to take a parenting course, continue her own therapy, and “take[] accountability for her actions and . . . learn[] . . . to regulate her own emotions.”

¶7        Shortly thereafter, Mother complained that the caseworker might be attempting to influence the therapists away from holding family therapy, and the caseworker then told the therapists that the court had instructed her to tell them that they were to communicate with each other (rather than through the caseworker as an intermediary) about “whether family therapy with [Mother] and [Child] would be in [Child’s] best interest.” By this point, Child’s therapist had come to believe that family therapy was now appropriate, and expressed interest in beginning the process. The caseworker said she would follow up to see whether Mother and Child were making progress from the therapy, but—apparently in response to Mother’s request that DCFS “back off”—she stated that she would “not be a part of the scheduling process.”

¶8      In August 2020, the caseworker learned that criminal charges had been filed against Mother, and informed the therapists of this fact. Mother believes that the caseworker implied that the conduct in question had occurred recently, when it had actually occurred prior to removal of the children from Mother’s care. After the therapists learned of the charges, communication between them seemed to halt, and family therapy between Mother and Child never did take place.

¶9        During the reunification period, the court held periodic review hearings to assess Mother’s progress under the service plan; at some of these hearings, Mother voiced concerns about the fact that family therapy was not occurring, and on other occasions she expressed concerns about certain statements the caseworker was alleged to have made. But for the most part Mother was non­specific about what else DCFS could have done to improve its efforts; indeed, on at least one occasion, the court expressly asked Mother’s attorney if “there’s anything else . . . as far as services go . . . that could be provided by [DCFS],” or if there was “anything else that you think [DCFS] should be providing to help [Mother] complete the service plan,” and counsel responded that he did not “have any specific request of [the court] right now.” The most specific complaint Mother raised was in August 2020 when she filed a “motion to take evidence and make findings regarding reasonable efforts” in which she accused DCFS of “hostility” and “actively work[ing] against the reunification goal.”

¶10      But by the time this motion was filed, the court had already made—on several different occasions during the reunification period—specific findings that DCFS was making reasonable efforts toward accomplishing the stated permanency goals, including reunification. For instance, in November 2019, the court after a hearing found that “DCFS has provided and is providing reasonable efforts to finalize the permanency goals.” Several months later, the court made a similar finding, noting along the way that Mother’s attorney “could not articulate other efforts that DCFS should be making to further the permanency goals.” In August 2020, the court found that “DCFS has and continues to provide reasonable efforts to finalize the child/children’s permanency goals and to comply with its court ordered responsibilities.” And a few weeks after that, the court did so again, noting that “[n]o party suggested efforts/services that could be provided by DCFS which are not already being provided.” There is no record of Mother making any objection to any of these interim findings regarding reasonable efforts.

¶11      In November 2020, after fourteen months of reunification services and with a permanency hearing looming, the parties engaged in settlement negotiations and entered into a stipulation that resolved many of the issues in the case. The parties and counsel then appeared before the court to put the terms of their stipulation on the record. Following the hearing, counsel for the State prepared an order memorializing the events of that hearing, and circulated it to Mother’s counsel for review. Mother’s counsel did not object or otherwise comment on the proposed form of the order, and therefore the State submitted it to the court “as being stipulated to,” and the court entered it as an order of the court. That order recites that the parties stipulated that “DCFS or other agency/ies continue to make reasonable efforts to assist the family finalize the service plan and its permanency goals.” The order recites that the parties also stipulated that the court would “terminate reunification services” as to Child, and that “termination of those services” was in Child’s best interest. Based on this stipulation, the court changed Child’s primary permanency goal from reunification to adoption. Mother did not object to the terms of this order, either before or after its entry, and did not object to the change in permanency goal.

¶12      Thereafter, the State filed a petition seeking the termination of Mother’s parental rights regarding Child. Some months later, the parties again entered into negotiations and agreed to resolve some of the issues surrounding the State’s termination petition. In particular, Mother stipulated “to the Court finding that it is in Child’s best interests and strictly necessary for the Court to terminate her parental rights should the Court also find legal grounds for terminating her parental rights.” After entry of this stipulation, the court scheduled a two-day termination trial to consider whether grounds for termination existed and whether DCFS had made reasonable efforts toward reunification.

¶13 The trial took place in November 2021. When the parties and their attorneys appeared for the first day of trial, the State informed the court that it did not intend to call any witnesses in its case-in-chief and, instead, asked the court to “take judicial notice of all the filings in the . . . case.” Mother objected to the court taking judicial notice of such a large quantity of material, arguing that she would never be able to respond to everything in the docket and the court would not have time to review so many documents. Eventually, the State narrowed its request to all the “findings and orders specific to [Child],” and Mother did not object. The court then agreed to take judicial notice of all its interim findings and orders regarding Child. The State then asked the court to take judicial notice of the court-ordered child and family plan pertaining to Child, psychological evaluations of Mother and Child, and court reports pertaining to Child; Mother did not object to the court taking judicial notice of the plan, but did object to the court taking judicial notice of the evaluations and court reports. The court initially took the matter under advisement, but later decided to take judicial notice of the service plan as well as the court reports, reasoning that they had been explicitly incorporated into the court’s previous orders and findings. The reports showed efforts the caseworker made, such as visiting all involved parties, providing transportation for Child, inspecting foster parents’ and Mother’s living situations, communicating with therapists, gauging Mother’s progress, promptly communicating with Mother, and ensuring Child had proper educational, medical, and mental health care.

¶14 The State then made its opening statement, pointing out that the only two issues for trial were grounds for termination and reasonable efforts, and arguing that grounds had already been established through the juvenile court’s previous adjudication that this court affirmed. Regarding reasonable efforts, the State argued that, throughout the entire proceeding, the juvenile court had periodically and continuously found that DCFS had made reasonable efforts toward reunification. The State also asserted that, at the end of the reunification period, Mother had stipulated—as part of the November 2020 stipulation prior to the permanency hearing—that DCFS had made reasonable efforts. The State asserted that it had sufficiently proven its case regarding grounds and reasonable efforts through the judicially noticed documents, and it rested its case without calling any witnesses.

¶15 After the State rested, Mother made a “motion for judgment as a matter of law,” arguing that the court’s previous orders “cannot as a matter of law be relied upon for a finding of reasonable efforts in the context . . . of a termination of parental rights trial” and that these orders were only “interim orders” and “can be revisited.” Mother also suggested that she never actually stipulated to a finding of reasonable efforts, even though the court’s order—to which she had not objected—stated otherwise. The court took Mother’s motion under advisement, and did not ever make an explicit ruling on it, but implicitly denied it by eventually making a ruling on the merits in the State’s favor.

¶16      Mother then proceeded with her case-in-chief, in which she called the caseworker and her therapist in addition to presenting her own sworn testimony. The caseworker testified about the events described above, outlining the actions she took to facilitate reunification and discussing her disagreements with Mother. Mother’s therapist testified about her sessions with Mother and the progress Mother made through therapy. Mother testified about the events, described above, that caused her to believe that DCFS was not making reasonable efforts toward reunification.

¶17      At the conclusion of trial, the court took the matter under advisement. About three months later, the court issued an oral ruling,[1] concluding that there were grounds to terminate Mother’s parental rights, and that the State had demonstrated that DCFS had indeed made reasonable efforts to facilitate reunification. After announcing its ruling, the court instructed the State to prepare an order reflecting the court’s ruling. The State did so, and circulated the proposed order to Mother; within her time to object, Mother filed an objection taking issue with one small part of the order, but did not make any objection to the order’s treatment of the proper evidentiary standard.

¶18      Eventually, the court signed a version of the written order prepared by the State, finding “by clear and convincing evidence” that grounds for termination existed because “Child was previously adjudicated to be abused and neglected” in an order that had been affirmed on appeal.

¶19 The court also found—based on “the review hearings, court reports, and other evidence”—that DCFS had provided reasonable efforts toward reunification, although the court did not specify which standard of proof (e.g., clear and convincing evidence or preponderance of the evidence) it was applying with regard to this determination. Among other things, the court found that DCFS had taken action to (i) ensure that Child’s medical, dental, and mental health needs were met, (ii) visit Child at placements, (iii) supervise visits, (iv) review education records, (v) transport Child, (vi) communicate with Child’s therapist, (vii) “coordinate[] virtual parent-time,” (viii) communicate with Mother, and (ix) answer questions and arrange visits. The court also noted that it had, throughout the pendency of the case, “consistently found reasonable efforts on the part of DCFS” in its previous orders and findings. However, the court did not treat these orders and findings as dispositive, and went on to examine the rebuttal evidence offered by Mother, directly addressing her two main arguments: “personal friction between the Mother and [the caseworker], and the delay in starting family therapy with all of the children.” Regarding the friction, the court noted that “DCFS cases are almost always high stress situations and there are bound to be disagreements between DCFS and the parent whose rights are at risk.” And in this case, the court determined that “[t]he disagreements here were based on the DCFS caseworker’s frustration/stress at the lack of progress made by [Mother], which in some sense suggests the DCFS caseworker’s desire for [Mother] to progress and move forward toward reunification.” Regarding the delay in family therapy, the court noted that “DCFS regularly reported that they were following up with the therapist and that the strategy taken by the therapist was determined by the therapist, not DCFS,” and concluded that, “while there may not have been perfection in the case, . . . DCFS has acted reasonably in their efforts.”

¶20 Accordingly, the court entered an order terminating Mother’s rights as to Child.

ISSUES AND STANDARDS OF REVIEW

¶21 Mother now appeals from the court’s termination order, but her appeal is narrowly targeted. As noted, Mother did not contest best interest at trial, after stipulating that termination of her parental rights to Child would be in Child’s best interest. And here on appeal, Mother does not contest the court’s determination that grounds for termination existed. She does, however, challenge—in three different ways—the court’s determination that DCFS made reasonable efforts toward reunification.

¶22 Her first challenge concerns the evidentiary standard the juvenile court applied in making its reasonable efforts determination. She contends that the court should have, but did not, apply a “clear and convincing evidence” standard in making its reasonable efforts determination. “The applicable burden of proof for termination proceedings is a question of law we review for correctness.” In re G.D., 2021 UT 19, ¶ 36, 491 P.3d 867.

¶23      Next, she challenges the merits of the court’s reasonable efforts determination, and this challenge has two parts. First, she contends that the court erred in denying her motion, made at the conclusion of the State’s case-in-chief, for “judgment as a matter of law.” In a bench trial, a motion for judgment as a matter of law’s “procedural counterpart,” Grossen v. DeWitt, 1999 UT App 167, ¶ 8, 982 P.2d 581, is a motion for involuntary dismissal, In re J.A., 2018 UT App 29, ¶ 26, 424 P.3d 913, cert. denied, 420 P.3d 704 (Utah 2018). Such a motion “should be granted when the trial judge finds that the claimant has failed to make out a prima facie case or when the trial judge is not persuaded by the evidence presented.” Accesslex Inst. v. Philpot, 2023 UT App 21, ¶ 33 (quotation simplified). “Whether a party has established a prima facie case is a question of law which we review for correctness.” In re M.L., 965 P.2d 551, 558 (Utah Ct. App. 1998).

¶24      Next, Mother challenges the court’s ultimate finding that DCFS made reasonable efforts toward reunification. “A court’s determination that DCFS made reasonable efforts to provide reunification services involves an application of statutory law to the facts that presents a mixed question of fact and law, requiring review of the juvenile court’s factual findings for clear error and its conclusions of law for correctness, affording the court some discretion in applying the law to the facts.” In re N.K., 2020 UT App 26, ¶ 15, 461 P.3d 1116 (quotation simplified). “Because reasonableness determinations are fact-intensive, we afford the juvenile court broad discretion in determining whether reasonable reunification efforts were made.” In re S.T., 2022 UT App 130, ¶ 17, 521 P.3d 887 (quotation simplified). “Absent a demonstration that the [reasonable efforts] determination was clearly in error, we will not disturb the determination.” In re K.F., 2009 UT 4, ¶ 52, 201 P.3d 985 (quotation simplified). “A finding of fact is clearly erroneous only when, in light of the evidence supporting the finding, it is against the clear weight of the evidence.” In re A.W., 2018 UT App 217, ¶ 23, 437 P.3d 640 (quotation simplified).

ANALYSIS

¶25 We first address Mother’s contention that the juvenile court applied an incorrect evidentiary standard in making its reasonable efforts determination. After that, we address Mother’s challenges to the merits of the court’s determination. For the reasons that follow, we are unpersuaded by Mother’s arguments.

I. Evidentiary Standard

¶26      Mother’s first assertion is that the juvenile court needed to make its reasonable efforts determination by clear and convincing evidence—rather than by the lower preponderance of the evidence standard—and that it did not do so. The first part of Mother’s assertion is correct, but the second part is unsupported by the record in this case.

¶27      With regard to what the proper legal standard is, Mother’s position is correct: the juvenile court needed to apply the clear and convincing evidence standard in making its reasonable efforts determination. Neither the State nor the guardian ad litem takes issue, in this case, with Mother’s position regarding the proper legal standard. And this position is clearly supported by statutory mandate. In all cases in which reunification services are offered, the reasonable efforts determination is a necessary part of the termination inquiry—it is mandated by the statutes governing termination proceedings, see Utah Code § 80-4-301(3)(a) (stating that, “in any case in which the juvenile court has directed the division to provide reunification services to a parent, the juvenile court must find that the division made reasonable efforts to provide those services before” terminating parental rights)—and all facts in termination cases must be established by clear and convincing evidence, see id. § 80-4-103(2)(a) (commanding juvenile courts, in all termination cases, to “require the petitioner to establish the facts by clear and convincing evidence”); see also In re Castillo, 632 P.2d 855, 857 (Utah 1981) (stating that the presumption of parental rights “should be overcome only by clear and convincing evidence”); Utah R. Juv. P. 41(b) (discussing “[t]he burden of proof in matters brought before the juvenile court,” and stating that “cases involving the permanent deprivation of parental rights must be proved by clear and convincing evidence unless otherwise provided by law”).

¶28      But the other half of Mother’s contention—that the juvenile court applied a different standard to its reasonable efforts inquiry—is simply not borne out by the record. As an initial matter, examination of the court’s order indicates that it was generally applying the clear and convincing evidence standard in this termination case. With regard to its determination about grounds for termination, the court specified that it was using the higher evidentiary standard, stating that it “finds that DCFS has proven, by clear and convincing evidence,” that grounds for termination are present. And later in its order, it specified that it was making its legal conclusions regarding termination “by clear and convincing evidence.” Significantly, nowhere in its order did the court reference, even obliquely, any other evidentiary standard. Moreover, earlier in the case, in the court’s September 2019 order approving the service plan, the court had indicated its awareness of the correct evidentiary standard, finding at that point, “by clear and convincing evidence,” that fulfillment of the service plan would “constitute reasonable efforts on the part of [DCFS] to finalize the permanency goals.”

¶29 Mother points out, however, that—while the court, in its final order, specified that its grounds determination and its legal conclusions were being made by clear and convincing evidence— the court did not specifically indicate that it was making its reasonable efforts determination by clear and convincing evidence. As noted, it did not indicate the application of a different evidentiary standard; rather, the reasonable efforts section of the court’s final order was simply silent regarding which evidentiary standard was being applied. As Mother sees it, any uncertainty about which standard the court was applying should be held against the court; in particular, she asks us to infer from this uncertainty that the court was applying an evidentiary standard to that section of its analysis that was different from what it specifically applied to the other sections.

¶30      But this is not the way such inferences work. Uncertainty in the record “is not a basis for reversal.” State v. Hummel, 2017 UT 19, ¶ 82, 393 P.3d 314. Indeed, “[u]ncertainty counts against the appellant, who bears the burden of proof on appeal, and must overcome a presumption of regularity as to the record and decision in the trial court.” Id. “Thus, a lack of certainty in the record does not lead to a reversal and new trial; it leads to an affirmance on the ground that the appellant cannot carry [the] burden of proof.” Id.

¶31      We encountered a similar situation in Gerwe v. Gerwe, 2018

UT App 75, 424 P.3d 1113. In that case, a district court determined, after an evidentiary hearing, that a man had fraudulently induced his ex-wife into signing a postnuptial agreement. Id. ¶ 3. But in so doing, the court was silent regarding which evidentiary standard it was applying; it “did not expressly state that [the ex-wife] presented clear and convincing evidence of fraudulent inducement,” but “it never suggested that a lower standard of proof applied.” Id. ¶ 13. On that record, we rejected the appellant’s assertion of error, stating that a “reviewing court will not presume from a silent record that the court applied an incorrect legal standard but must presume the regularity and validity of the district court’s proceedings, and that it applied the correct legal standard, in the absence of evidence to the contrary.” Id. (quotation simplified). We concluded our analysis by stating that “[b]ecause nothing in the record suggests that the court applied something less than the clear and convincing standard, [the appellant] cannot establish error.” Id. (quotation simplified).

¶32 So too here. Mother offers no evidence—aside from the uncertainty engendered by silence—that the juvenile court applied an evidentiary standard other than clear and convincing to its reasonable efforts determination. And as in Gerwe, this is not enough to satisfy Mother’s appellate burden, especially where the court—in two other places in the order—indicated that it was applying the clear and convincing standard.[2] On this basis, we reject Mother’s contention that the juvenile court applied an incorrect evidentiary standard.

II. Reasonable Efforts

¶33      Next, Mother challenges the merits of the juvenile court’s reasonable efforts determination, and this challenge has two parts. First, Mother asserts that the court erred in failing to grant the motion she made at the conclusion of the State’s case-in-chief. Second, she asserts that the court’s ultimate reasonable efforts determination was against the clear weight of the evidence. We address, and reject, each of these arguments, in turn.

A

¶34      At the end of the State’s witness-less case-in-chief, Mother made an oral motion for “judgment as a matter of law.” The court took the motion under advisement, but never issued an express ruling on it; the court implicitly denied the motion when it ruled in the State’s favor on the merits of the reasonable efforts question. Mother challenges the court’s implicit denial of that motion.

¶35      Although Mother referred to her motion as either a motion for summary judgment or a motion for judgment as a matter of law, in bench trials the proper reference is a motion for involuntary dismissal. See In re Trujillo, 2001 UT 38, ¶ 21 n.13, 24 P.3d 972 (stating that “a motion for a directed verdict contemplates only jury trials,” and “[i]n the context of a bench trial, the directed verdict’s procedural counterpart is a motion for involuntary dismissal”); accord Accesslex Inst. v. Philpot, 2023 UT App 21, ¶ 33. As already noted, the relevant question raised by such a motion—at least where the nonmovant bears the burden of proof on the issue at hand—is whether the nonmovant has, during its case-in-chief, made at least a prima facie case in support of its claim. See Accesslex Inst., 2023 UT App 21, ¶ 33 (stating that, where “the party making [the motion] is the party that does not bear the burden of proof,” the motion “should be granted when the trial judge finds that the claimant has failed to make out a prima facie case” (quotation simplified)). “A prima facie case has been made when evidence has been received at trial that, in the absence of contrary evidence, would entitle the party having the burden of proof to judgment as a matter of law.” In re J.A., 2018 UT App 29, ¶ 27, 424 P.3d 913 (quotation simplified), cert. denied, 420 P.3d 704 (Utah 2018). Thus, we must consider whether the State—the nonmovant who bore the burden of proof—made out at least a prima facie case in support of its reasonable efforts claim during its case-in-chief.

¶36      Our supreme court has defined “reasonable efforts” as a “fair and serious attempt to reunify a parent with a child prior to seeking to terminate parental rights.” In re K.F., 2009 UT 4, ¶ 51, 201 P.3d 985 (quotation simplified). Thus, in order to make a prima facie showing with regard to reasonable efforts, the State had to produce evidence that would—at least before consideration of any contrary evidence—show that DCFS had made a fair and serious effort to reunify Mother with Child during the reunification period. As noted, the State called no witnesses in its case-in-chief, choosing instead to rely entirely on documentary evidence that included the juvenile court’s previous interim orders and the court reports incorporated into those orders. But despite this unorthodox approach,[3] in our view the State did enough—on the facts of this particular case—to make at least a prima facie showing in support of its reasonable efforts claim.

¶37      The State’s evidence, such as it was, included the juvenile court’s interim orders, and those orders indicated that the court, in its ongoing supervisory role over the proceedings during the reunification period, had made multiple and repeated findings that DCFS had engaged in reasonable efforts to further the permanency goals, the primary one of which was reunification. The court never made a contrary finding, despite Mother having registered some dissatisfaction on this point at various stages of the case. Moreover, those interim orders incorporated the court reports, which included detailed accounts of the measures DCFS took to fulfill the requirements of the service plan, including visiting Child, providing transportation for Child, inspecting foster parents’ and Mother’s living situations, communicating with the therapists, gauging Mother’s progress on the service plan, communicating with Mother, and ensuring Child had proper educational, medical, and mental health care. Finally, at the end of the reunification period in November 2020, with a permanency hearing looming, Mother apparently stipulated that “DCFS or other agency/ies continue to make reasonable efforts to assist the family finalize the service plan and its permanency goals.” The use of the word “continue” in the stipulation could reasonably be taken to mean that Mother was acknowledging that, throughout the entirety of the reunification period up until the date of the stipulation, DCFS had made reasonable efforts to accomplish the permanency goals, including reunification. Thus, in this particular case, the State’s evidentiary presentation, despite its truncated and unorthodox nature, was sufficient to indicate— at least in the absence of Mother’s contrary evidence, which had yet to be presented—that DCFS had made a fair and serious effort to reunify Mother with Child.

¶38      We recognize that Mother was eventually able to point to at least some contrary evidence. For instance, Mother put on evidence about the ongoing friction between herself and the DCFS caseworker, and about the issues that came up regarding initiation of family therapy. In addition, Mother had some colorable arguments to make about the November 2020 stipulation, asserting that the parties’ actual agreement had not in fact included any stipulation about reasonable efforts and that, if any such stipulation had been reached, its scope was limited. But at the time the court was considering Mother’s motion for involuntary dismissal—at the close of the State’s case-in-chief— none of that evidence had been presented. And in assessing whether the State had made out a prima facie case regarding reasonable efforts, the court was not supposed to consider whatever contrary evidence Mother might eventually produce. The prima facie case inquiry is simply whether the State produced sufficient evidence, standing on its own and without considering any rebuttal, to support its claim. And on the facts of this unique case, we conclude that it did.

¶39 For these reasons, we discern no error in the juvenile court’s implicit denial of Mother’s motion for involuntary dismissal made at the conclusion of the State’s case-in-chief.

B

¶40 Finally, Mother challenges the juvenile court’s ultimate determination, made as factfinder after trial, that DCFS had made reasonable efforts to facilitate reunification. As noted already, we review this determination deferentially, giving “broad discretion” to the juvenile court “in determining whether reasonable reunification efforts were made.” See In re K.F., 2009 UT 4, ¶ 52, 201 P.3d 985; see also In re A.C., 2004 UT App 255, ¶ 12, 97 P.3d 706 (stating that a juvenile court “is in the best position to evaluate the credibility and competence of those who testify regarding the services that were provided” and to assess the reasonable efforts question). See generally supra ¶ 24.

¶41      Here, the juvenile court listened to the testimony of Mother, the caseworker, and Mother’s therapist, and examined the dozens of exhibits submitted by the parties. This same court had previously been involved in all of the interim review hearings during the reunification period, during which the court assessed DCFS’s reasonable efforts throughout the case. In issuing its ultimate determination, the court took its previous orders into account, but correctly did not treat them as completely dispositive of the question; instead, it considered those orders as potentially persuasive evidence supporting the State’s position, but evaluated that evidence in the context of the rebuttal evidence Mother offered.[4]

¶42 Indeed, the court directly addressed both of Mother’s specific arguments: that the “personal friction” between Mother and the caseworker indicated that the caseworker did not make reasonable efforts, and that the caseworker caused delay in the start of family therapy. With regard to the friction, the court rather astutely noted that child welfare cases “are almost always high stress situations and there are bound to be disagreements between DCFS and the parent whose rights are at risk.” But the court, after reviewing the friction in the context of the entire case, concluded that the disagreements between Mother and the caseworker, while regrettable, did not rise to the level of indicating that the caseworker had failed to provide reasonable efforts. On this record, we cannot say that such a determination is “against the clear weight of the evidence.” See In re A.W., 2018 UT App 217, ¶ 23, 437 P.3d 640.

¶43      With regard to the delay in family therapy, the court noted that, under the service plan, family therapy was not to begin until both Mother’s and Child’s therapists recommended it, and the court was aware that responsibility for scheduling the therapy sessions, once both therapists were on board, was to be up to the therapists themselves. The court, after reviewing this issue in context, concluded that most of the blame for any delay in family therapy should not be laid at the feet of the caseworker, observing that “DCFS cannot, nor should they be required to hold the hand of every party involved to ensure that those parties are also making some efforts,” and ultimately determined that, “while there may not have been perfection in the case, . . . DCFS has acted reasonably in their efforts.” On this record, we cannot say that this determination is against the clear weight of the evidence either.

¶44 Accordingly, we discern no abuse of the juvenile court’s discretion in its ultimate determination, made as factfinder after trial, that DCFS provided reasonable efforts toward reunification.

CONCLUSION

¶45 Mother has not carried her appellate burden of demonstrating that the juvenile court applied an incorrect evidentiary standard to its reasonable efforts determination. And we reject Mother’s challenges to the merits of the court’s ultimate determination that DCFS provided reasonable efforts toward reunifying Mother with Child during the reunification period.

¶46 Affirmed.

 

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

[1] A transcript of the court’s oral ruling was not included in the record submitted to us.

[2] Moreover, Mother had an opportunity to bring this issue to the court’s attention prior to entry of the order. Recall that the court issued an oral ruling, which was then memorialized by the State into a written order and circulated to Mother for her input. Mother filed a limited, targeted objection to one point in the draft order, but—notably—did not raise any objection to the court’s discussion of the evidentiary standard it was applying to its determinations. Any lack of clarity about the standard being applied could easily have been remedied at that stage. See Jensen v. Skypark Landowners Ass’n, 2013 UT App 48, ¶ 6 n.4, 299 P.3d 609 (per curiam) (stating that a party who made “no objection to the form of the order” could not complain, for the first time on appeal, that the order was “vague and ambiguous”), cert. denied, 308 P.3d 536 (Utah 2013); cf. In re K.F., 2009 UT 4, ¶ 63, 201 P.3d 985 (stating that “[j]udicial economy would be disserved” by permitting an appellant to bring, “for the first time on appeal,” a challenge regarding the adequacy of the court’s findings, because such errors are “easy for a trial judge to correct” and are “best corrected when the judge’s findings are fresh in the judge’s mind,” and because “the only likely remedy is merely a remand to the trial court for more detailed findings”).

[3] It would not have been difficult for the State to call at least one critical live witness—the DCFS caseworker—in support of its reasonable efforts claim. The caseworker was available that day to testify, and indeed did testify when she was called to do so by Mother. We do not go very far out onto the proverbial limb by stating that, in most cases, it would be preferable (and, indeed, advisable) for the State, in reasonable efforts cases, to do more than simply rely on previous interim court orders, and we hope that our decision to affirm the juvenile court in this case does not encourage the State to present similarly truncated cases-in-chief in future reasonable efforts cases.

[4] Considering such orders, as well as Mother’s failure to formally object to them, as potentially persuasive but nondispositive evidence appears consistent with previous decisions by this court in reasonable efforts cases. See In re A.W., 2018 UT App 217, ¶ 31, 437 P.3d 640 (“Father also ignores the several times in the record in which the juvenile court made an unchallenged periodic finding—before its termination order—that DCFS had made reasonable efforts to provide him with reunification services.”); see also In re S.T., 2022 UT App 130, ¶ 21, 521 P.3d 887 (noting that, “[a]t no point did Mother object to the court’s findings or indicate that she needed additional or different services.”); In re A.C., 2004 UT App 255, ¶ 17, 97 P.3d 706 (“It is the parent’s responsibility to demand services if they are not offered prior to the termination hearing.” (quotation simplified)).

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In Re J.E. – 2023 UT App 3 – Challenge to Voluntary Declaration of Paternity

In re J.E. – 2023 UT App 3

THE UTAH COURT OF APPEALS

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

A PERSON UNDER EIGHTEEN YEARS OF AGE.

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

Opinion

No. 20210921-CA

Filed January 20, 2023

Third District Juvenile Court, Salt Lake Department

The Honorable Annette Jan No. 1198329

D.E., Appellant Pro Se

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

Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

Julie J. Nelson, Debra M. Nelson, Alexandra

Mareschal, and Kirstin Norman, Attorneys for

Amicus Curiae Utah Indigent Appellate Defense Division

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

HARRIS, Judge:

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

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

BACKGROUND[1]

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

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

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

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

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

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

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

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

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

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

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

ISSUES AND STANDARDS OF REVIEW

¶14 Father appeals the juvenile court’s decision to invalidate the VDP and to declare it void. At the center of Father’s challenge is his assertion that Child, by and through the GAL, does not possess statutory standing to challenge the VDP. This question is one of statutory interpretation, and on such matters we afford no deference to trial courts’ decisions. See State v. Outzen, 2017 UT 30,

¶ 5, 408 P.3d 334 (“We review questions of statutory interpretation for correctness, affording no deference to the [trial] court’s legal conclusions.” (quotation simplified)).

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

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

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

ANALYSIS

I. Jurisdiction

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

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

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

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

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

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

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

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

II. The Merits of Father’s Appeal

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

A

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

¶26 Some fathers also obtain parental rights by presumption of circumstance. For instance, a father-child relationship is established when a man “and the mother of the child are married to each other” when the child is born. Id. §§ 78B-15-

201(2)(a), -204(1)(a). But a father who is not married to the mother of the child must take additional steps to establish his paternity.

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

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

B

¶29 Declarations can, however, be challenged after they have been accepted by the Office of Vital Records and Statistics. See Scott, 2021 UT App 110, ¶ 23 (“Voluntary declarations of paternity are, however, subject to challenge.”). Applicable statutes permit several different types of challenges to validly filed declarations. For example, a declaration may be challenged as “void” if it fails to meet certain threshold criteria regarding the existence of another potential father. See Utah Code Ann. § 78B15-302(3) (referred to herein as “Section 302”). Alternatively, a “signatory” of a declaration may rescind it within sixty days, without specifying any reason. Id. § 78B-15-306(1) (referred to herein as “Section 306”). Further, after the rescission period has expired, a declaration may be challenged by certain parties “on the basis of fraud, duress, or material mistake of fact.” See id. § 78B-15-307 (referred to herein as “Section 307”). And as relevant here, Section 623 provides that “[a] child is not bound by a determination of parentage . . . unless . . . the determination was based on an unrescinded declaration of paternity and the declaration is consistent with genetic testing.” See id. § 78B-15623(2).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CONCLUSION

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

 

 

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

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

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

[4] After all, Part 6 of the Act expressly provides that “the child” may maintain “a proceeding to adjudicate parentage,” and thereby challenge a parent’s paternity. See Utah Code Ann. § 78B15-602(1). All parties to this appeal agree that a child has statutory standing under Part 6 to challenge a parent’s paternity.

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

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In re Z.C. W. – 2021 UT App 98 – Utah Court of Appeals

In re Z.C.W. – 2021 UT App 98 

THE UTAH COURT OF APPEALS 

STATE OF UTAHIN THE INTEREST OF Z.C.W. AND C.C.W., 
PERSONS UNDER EIGHTEEN YEARS OF AGE. 

R.D., Appellant, v.  C.L.W., Appellee. 

Opinion 

No. 20200039-CA 

Filed September 23, 2021 

Third District Juvenile Court, West Jordan Department 

The Honorable Renee M. Jimenez 

No. 1135445 

Julie J. Nelson and Alexandra Mareschal, Attorneys for Appellant 

Lisa Lokken and Kirstin H. Norman, Attorneys for Appellee 

Martha Pierce, Guardian ad Litem 

JUDGE RYAN M. HARRIS authored this Opinion, in which 
JUDGES MICHELE M. CHRISTIANSEN FORSTER and DIANA HAGEN concurred. 

HARRIS, Judge: 

¶1 This termination-of-parental-rights case—in which R.D. (Mother) seeks to terminate the parental rights of her ex-husband, C.L.W. (Father), regarding their two children, C.C.W. and Z.C.W. (collectively, Children)—comes to us for a second time. In our previous opinion, we reversed the juvenile court’s order dismissing Mother’s petition and remanded the case with instructions for the court to redo its “best-interest” analysis, this time taking into account evidence that it had previously discounted regarding Father’s history of domestic violence toward Mother and another woman. See In re C.C.W., 2019 UT App 34, ¶¶ 19–25, 440 P.3d 749. On remand, the juvenile court reconsidered best interest and this time took into account Father’s history of domestic violence, but it conducted its analysis as of early 2017—the time of the previous trial—and not as of late 2019, when the post-remand proceedings took place. The court denied Mother’s motion to amend her termination petition to include new facts and circumstances that she asserted had occurred after the earlier trial, and the court refused to consider any evidence regarding best interest that had not been placed into the record at the previous trial. After reevaluating best interest as of 2017, this time not compartmentalizing Father’s history of domestic violence, the court again concluded that termination of Father’s parental rights was not in Children’s best interest, and again dismissed Mother’s petition. 

¶2 Mother appeals the dismissal of her petition, but does not raise a substantive challenge to the juvenile court’s new findings and conclusions—that is, Mother does not claim that the findings are unsupported by the evidence presented at the 2017 trial. Instead, Mother’s challenge is procedural: she asserts that the court erred by conducting its post-remand best-interest analysis in light of the evidence available in 2017, and by refusing to consider facts and circumstances arising after 2017 that might have affected its analysis. We agree with Mother, and hold that when we remand a case for a court to reconsider the best-interest question, we generally intend for that renewed inquiry to be conducted in the present tense, and for the effective date of that analysis to be the date of the post-remand proceeding. Accordingly, we vacate the juvenile court’s order of dismissal, and remand for a new best-interest analysis that should be conducted based on the facts and circumstances in existence as of the date the inquiry is made. 

BACKGROUND 

¶3 Many of the salient facts that inform the legal issues in this case are set forth in detail in our previous opinion, see id. ¶¶ 2–12, and we see no need to repeat them here. For present purposes, we include only a brief summary of the pre-remand facts. 

¶4 Mother filed a private petition seeking termination of Father’s parental rights regarding Children and alleged, among other things, that Father had a history of domestic violence toward her and another woman and had been incarcerated twice for such offenses. Id. ¶¶ 2–5. After a trial in early 2017, the juvenile court found that Father had abandoned Children, and that there were therefore statutory grounds for termination, id. ¶ 7, but concluded that it was not in Children’s best interest for Father’s parental rights to be terminated, id. ¶¶ 9–12. The court made factual findings that Father had indeed brutally attacked Mother and had a history of domestic violence, id. ¶ 8 & n.1, but nevertheless concluded that those facts had little bearing on the termination inquiry, because Father had never been violent toward Children, id. ¶ 8. After determining that Mother had not carried her burden on the best-interest inquiry, the juvenile court dismissed Mother’s petition, and Mother appealed. Id. ¶¶ 12–13. 

¶5 On appeal, we concluded that the juvenile court’s best-interest “analysis was materially flawed” because, rather than evaluating the impact Father’s acts of domestic violence could have on Children, the court “completely separate[d] or compartmentalize[d]” Father’s “history of domestic violence toward other adults from the best-interest inquiry.” Id. ¶¶ 15, 19, 22. Accordingly, we vacated the order dismissing Mother’s petition and remanded for the juvenile court to “reconsider[]” its best-interest inquiry. Id. ¶ 25. We directed the court, in conducting its renewed inquiry, to “adequately consider[] all of the proper factors,” including “what effect, if any, Father’s history of domestic violence might have on his efforts to reestablish a relationship with the Children.” Id. 

¶6 Soon after remand, Mother filed a motion seeking leave to amend her petition to include additional relevant information. Mother asserted that “significant events, developments and incidents” bearing on Children’s best interest had occurred in the two years since the 2017 trial. Among other things, Mother alleged that, since the trial, Father had committed violent acts against another woman, and that Father’s parole had been revoked due to drug and alcohol use. In addition, Mother asserted that her own situation had changed, alleging that she had remarried and her new spouse now wanted to adopt Children. The guardian ad litem (GAL) assigned to represent Children endorsed Mother’s position. Nevertheless, the juvenile court denied Mother’s motion to amend, explaining that it interpreted our opinion as requiring only a “reconsideration” of its previous ruling. The court declined to consider the new material alleged by Mother in connection with its renewed best-interest analysis, stating that it would “listen to the testimony” presented at the 2017 trial and would “read and consider the various literature cited” in our opinion, after which it would issue a written ruling without further hearing. 

¶7 A few weeks later, the juvenile court issued a written decision setting forth its renewed best-interest analysis. This time, the court did consider Father’s history of domestic violence. The court again noted that there was no evidence that Father had ever “physically abused his biological or stepchildren,” and found that “Mother did not fear Father’s interaction with the Children.” The court also observed that, under the district court order then in effect governing the parties’ divorce proceedings, Father was entitled only to supervised parent-time with Children. The juvenile court concluded that Father was at low risk to commit domestic violence in the presence of Children, and gave several reasons for its conclusion: Father had little contact with Mother; Father had “engaged in mental health services and medication management” and had “developed coping skills”; Father was “remorseful” and “desire[d] to correct his past actions”; and Father “was married with a support system in place.” In the court’s view, this evidence demonstrated that Father had taken “meaningful steps to change his life in order to be reintroduced” to Children. The court also noted that Father was Children’s only “African American father figure,” and that by keeping Father’s parental rights intact, Children could “maintain their legal relationship” with Father’s extended family, including their older half-sister. For these reasons, the court concluded—based on reconsideration of the evidence presented at the 2017 trial— that Mother had not carried her burden of demonstrating, by clear and convincing evidence, that it would be in Children’s best interest for Father’s parental rights to be terminated. On that basis, the court again dismissed Mother’s petition, doing so without considering any evidence regarding events that allegedly occurred between the 2017 trial and the date of the court’s order. 

¶8 Soon after issuance of the juvenile court’s post-remand ruling, Mother and the GAL each asked the court for a “new trial,” contending that the court should “re-open the evidence” because it was “impossible for the court” to properly consider best interest “without considering evidence of events that have occurred in the two and a half years since the trial.” In the documentation supporting her motion, Mother provided additional detail regarding some of the new evidence, asserting that Children’s half-sister had reached adulthood, no longer lived with Father, and had her own independent relationship with Children; that Father had reduced his financial support of Children and let their insurance coverage lapse; and that C.C.W. had recently been diagnosed with attention deficit hyperactivity disorder, allegedly heightening the need for stability in his life.1 The court denied these motions, offering its view that it had complied with this court’s instructions by “considering all of the evidence presented” at the 2017 trial, and that Mother’s remedy was either to appeal or to file a new petition for termination of Father’s parental rights. 

ISSUE AND STANDARD OF REVIEW 

¶9 Mother appeals from the juvenile court’s second dismissal of her termination petition, and raises one issue for our review: whether the juvenile court erred when it conducted its post-remand best-interest inquiry in past-tense fashion, as of 2017, and refused to consider facts and circumstances that allegedly occurred after 2017.2 Both Mother and Father contend that we should review this issue for abuse of discretion. We disagree. The narrow question of whether a post-remand best-interest inquiry should be conducted in past-tense or present-tense fashion presents a procedural legal issue, not a factual issue, and one that we review for correctness.3 See Berman v. Yarbrough, 2011 UT 79, ¶ 12, 267 P.3d 905 (“We review procedural issues for correctness and afford no deference to the lower court’s ruling.”); see also State v. Kragh, 2011 UT App 108, ¶ 9, 255 P.3d 685 (“Procedural issues present questions of law, which we review for correctness.”). The question also involves interpretation of the remand instructions contained in our previous opinion, and no other court is better positioned on that score than we are. See State v. Lopes, 2001 UT 85, ¶¶ 11, 17–19, 34 P.3d 762 (stating that “the issues before us involve legal determinations” that are reviewed “for correctness,” including the “crucial question” of “what we meant when we remanded the case for a new trial” (quotation simplified)). Accordingly, we review the juvenile court’s post-remand procedural decisions for correctness. 

ANALYSIS 

¶10 “[T]he Utah Constitution recognizes and protects the inherent and retained right of a parent to maintain parental ties to his or her child.” In re J.P., 648 P.2d 1364, 1377 (Utah 1982). Indeed, our legislature has “declared that ‘a parent possesses a fundamental liberty interest in the care, custody, and management of the parent’s child.’” In re B.T.B., 2020 UT 60, ¶ 24, 472 P.3d 827 (quoting Utah Code Ann. § 78A-6-503(1) (LexisNexis 2017), now recodified at id. § 80-4-104(1) (Supp. 2021)). Before severing this important parent-child bond, a court must ensure that the party seeking to terminate a parent’s rights has made a two-part showing by clear and convincing evidence. See In re F.B., 2012 UT App 36, ¶ 2, 271 P.3d 824 (per curiam); see also In re B.T.B., 2020 UT 60, ¶¶ 44–54. First, the court must find grounds for termination under applicable statutory law. See In re F.B., 2012 UT App 36, ¶ 2; see also Utah Code Ann. § 80-4-301 (LexisNexis Supp. 2021).4 Second, the court “must find that termination of the parent’s rights is in the best interest[] of the child.” In re F.B., 2012 UT App 36, ¶ 2; see also Utah Code Ann. § 80-4-104(12)(a) (stating that the “best interest of the child” is “of paramount importance in determining whether termination of parental rights shall be ordered”). 

¶11 We have explained that the best-interest inquiry “requires courts to examine all of the relevant facts and circumstances surrounding the child’s situation.” In re C.C.W., 2019 UT App 34, ¶ 18, 440 P.3d 749 (quotation simplified). “This analysis should be undertaken from the child’s point of view, not the parent’s.” In re B.T.B., 2020 UT 60, ¶¶ 63, 64 (quotation simplified). A child’s best interest can be determined only by considering “the physical, mental, or emotional condition and needs of the child.” In re T.E., 2011 UT 51, ¶ 41, 266 P.3d 739 (quoting Utah Code Ann. § 78A-6-509 (LexisNexis Supp. 2011), now recodified at id. § 80-4-303 (Supp. 2021)). “[A]ny evidence that is probative of what is in the child’s best interest” may be considered. Id. In sum, the best-interest inquiry is “wide-ranging” and “asks a court to weigh the entirety of circumstances . . . to determine what is in the best interest of the child under all of the circumstances,” In re J.M., 2020 UT App 52, ¶ 35, 463 P.3d 66, with the court’s focus being “firmly fixed on finding the outcome that best secures the child’s well-being,” In re B.T.B., 2020 UT 60, ¶ 64. A court may not, simply due to concerns about judicial economy, limit the scope of the best-interest inquiry. See In re J.J.T., 877 P.2d 161, 164 (Utah Ct. App. 1994) (stating that, when considering “the best interest[] of a child, a court must be free from the imposition of artificial constraints that serve merely to advance the cause of judicial economy”). 

¶12 In the context of evaluating the termination of a parent’s rights, we have stressed that “[c]onsiderations regarding a child’s welfare are rarely, if ever, static,” and that often “the child’s environment is constantly evolving.” Id. at 163; see also In re H.J., 1999 UT App 238, ¶ 45, 986 P.2d 115 (stating that a child’s “needs and circumstances can, and do, change rapidly,” and in many cases “the passage of time itself can result in substantially different circumstances” for a child). For these reasons, the best-interest inquiry is generally to be conducted in present-tense fashion, with the effective date of the inquiry being the date of the hearing, trial, or other judicial determination. In a best-interest inquiry, the relevant question is almost always this one: what outcome is in the child’s best interest now? 

¶13 This conclusion is bolstered by the language of the current governing statute. Although this particular language was not in effect at the time the juvenile court entered its post-remand findings, our legislature in 2020 added the following language— as immaterially amended in 2021—to the relevant statute: 

In determining whether termination is in the best interest of the child, and in finding that termination of parental rights, from the child’s point of view, is strictly necessary, the juvenile court shall consider [certain factors, including reunification efforts and kinship placement possibilities]. 

Utah Code Ann. § 80-4-104(12)(b) (emphasis added). This statutory language uses the verb “is,” indicating that the best-interest inquiry is to be undertaken in a present-tense fashion. See Scott v. Scott, 2017 UT 66, ¶ 24, 423 P.3d 1275 (“Typically, we understand ‘is’ as a present tense . . . verb . . . . Accordingly, we assume that the legislature used ‘is’ here as a present-tense verb.” (quotation simplified)); see also W.N. v. S.M., 424 P.3d 483, 490 (Haw. 2018) (concluding that a lower court erred, post-remand, by conducting its custody analysis in past-tense fashion as of the date of the previous trial, and emphasizing that the governing statute’s present-tense locution “requires the court to consider if the person ‘is fit and proper’ to care for the minor child at the time of the contemplated custody award”). 

¶14 In situations where we have remanded a case for a trial court to redo its best-interest analysis, we have sometimes given explicit instructions for courts to do so in present-tense fashion. See, e.g.In re H.F., 2019 UT App 204, ¶ 18 n.6, 455 P.3d 1098 (remanding for a new best-interest analysis, and stating that “any number of circumstances may have changed since trial, and the court should take such changes into account in reconsidering its decision”); Ross v. Ross, 2019 UT App 104, ¶ 20, 447 P.3d 104 (remanding for renewed consideration of a parent’s relocation, including whether such relocation was in the child’s best interest, and stating that, in reconsidering the relocation question, the court “should consider the present circumstances of the parties and the Children and not simply re-litigate the issues as they were at the time of the now-vacated custody order”). In this case, unfortunately, our remand instructions were not quite as explicit. We concluded that “the juvenile court’s best-interest determination was materially flawed,” vacated the court’s order on that basis, and remanded “for proceedings consistent with this opinion,” stating that the court should “reconsider[]” the best-interest question. See In re C.C.W., 2019 UT App 34, ¶ 25. We did not directly instruct the court to undertake that “reconsideration” in a present-tense fashion. In hindsight, we wish we had been more explicit. But our intent was that the court would redo its entire best-interest analysis, this time taking into account the domestic violence evidence, and that it should undertake that analysis in present-tense fashion, evaluating best interest as of the time of the post-remand proceedings. We take this opportunity to clarify that, unless we direct otherwise in a particular case, courts should assume that we intend for post-remand best-interest analyses to be undertaken in a present-tense manner. 

¶15 Post-remand application of a present-tense analysis will not, however, always require a new evidentiary hearing. It may be that, in certain cases, the situation will not have changed at all, and the parties will not have any new evidence to present; in such a situation, given the absence of any new evidence, a present-tense and past-tense analysis will not differ. In other situations, a court may examine the proffered new evidence and conclude that, even assuming the veracity of the new allegations, the court’s analysis would remain unchanged; such analysis is, in its own way, a present-tense analysis, even though no new hearing will be necessary. Cf. In re G.D., 2021 UT 19, ¶¶ 80–82, 491 P.3d 867 (concluding that a lower court appropriately dealt with proffered new evidence in a termination case when it concluded that “none of the [new] evidence would have altered the court’s [previous] decision” (quotation simplified)). In still other situations, the parties may agree that the new allegations, even if material, are not disputed; in those cases, a court would be within its discretion to undertake its present-tense analysis, including consideration of the new undisputed evidence, without holding a new evidentiary hearing. And in many other situations, one or both of the parties may wish to offer new material disputed evidence; in those cases, a court conducting a post-remand best-interest analysis will likely need to hold an evidentiary hearing and make findings regarding the veracity and the materiality of the new allegations, and will need to consider whether additional discovery or other pre-hearing proceedings would be appropriate. See, e.g.W.N., 424 P.3d at 491 (determining that a lower court erred, post-remand, when it failed to hold an evidentiary hearing to consider new disputed factual allegations that “would have directly pertained” to the issue at hand). But regardless of the posture of the particular case, a court conducting a proper post-remand best-interest analysis must—in some manner—consider and appropriately deal with proffered new evidence. 

¶16 With these principles in mind, we now examine the juvenile court’s handling of Mother’s proffered new evidence in this case. As noted above, the court refused to allow Mother to amend her petition to include new allegations, and after issuing its post-remand ruling it denied Mother’s motion for “new trial” in which Mother again asked the court to consider the new allegations.5 The court espoused a narrow interpretation of the remand instructions in our previous opinion, and opted to conduct a “reconsideration” of the evidence that had been presented at the 2017 trial, without any consideration of the new evidence Mother proffered. And the court instructed Mother that the proper avenue to facilitate adjudication of the new allegations was to file an entirely new petition for termination of Father’s parental rights. 

¶17 The juvenile court erred by undertaking its best-interest analysis as of 2017, the date of the previous trial. As discussed above, the court should have undertaken its best-interest analysis in present-tense fashion, as of 2019, the date of the post-remand proceeding. And the court erred by refusing to consider, in some form, the new evidence proffered by Mother. The court made no determination that the proffered evidence was immaterial or inadmissible;6 we offer our own observation that at least some of the proffered evidence—in particular, the allegation that Father has committed additional acts of domestic violence against additional women—if true, appears to be at least potentially material and at odds with some of the court’s post-remand findings. And the court made no effort to ascertain the extent to which the new evidence was disputed. The court needed to consider the new evidence in some fashion, rather than simply relying on previously submitted evidence. 

¶18 Mother could, of course, alternatively file a new termination petition. In such a proceeding, Mother could air all of the new allegations, and would not be barred by res judicata from incorporating into her presentation facts found by the court during the previous proceedings. See In re A.C.M., 2009 UT 30, ¶ 18, 221 P.3d 185 (“We . . . adopt the rule . . . that in child welfare proceedings res judicata does not bar courts from considering both newly discovered facts, whether or not they were knowable at the time of the earlier proceeding, and facts determined in previous termination proceedings when considering a later termination petition.”); see also Hardy v. Hardy, 776 P.2d 917, 922–23 (Utah Ct. App. 1989) (stating that res judicata does not preclude reconsideration of previously admitted evidence because res judicata, in this context, is “subservient to the child’s best interest[]”). But filing a new termination petition would entail some inefficiencies; as Mother pointed out at oral argument before this court, if a new petition were filed the juvenile court would be required to start from scratch, and re-adjudicate the entire case, including the “statutory grounds” portion that is no longer in dispute here. Moreover, the mere fact that Mother has the option of filing another action does not mean that her preferred option is thereby foreclosed. When two valid procedural litigation options exist, it is up to the litigant to choose which one to utilize. See, e.g.Utah Stream Access Coal. v. VR Acquisitions, LLC, 2019 UT 7, ¶ 36, 439 P.3d 593 (“[A] core component of our adversary system [is] the notion that the plaintiff is the master of the complaint. We leave it to the parties to plead claims and defenses in the time and manner designated by our rules.”). A court may not close one door simply because another one exists, even if the court considers the litigant’s preferred option inefficient. See In re J.J.T., 877 P.2d 161, 164 (Utah Ct. App. 1994) (stating that, when considering “the best interest[] of a child, a court must be free from the imposition of artificial constraints that serve merely to advance the cause of judicial economy”); cf. AFA Distrib. Co. v. Pearl Brewing Co., 470 F.2d 1210, 1213 (4th Cir. 1973) (stating that federal courts asked to exercise diversity jurisdiction “cannot close the door to the federal courts merely because [a diversity] case involves a difficult question of state law”). 

CONCLUSION 

¶19 The juvenile court erred by conducting a past-tense—rather than a present-tense—analysis while reconsidering best interest during its post-remand proceedings. The best-interest inquiry is, in most cases, not to be based on a snapshot from the past. Rather, a proper best-interest inquiry requires evaluating all relevant past and present circumstances bearing on a child’s welfare as of the date of the proceeding. Where an appellate court remands a case for a trial court to redo its best-interest analysis, that analysis should generally be conducted as of the date of the post-remand proceedings, and the court must consider, in some fashion, any new evidence proffered by the parties. 

¶20 Accordingly, we vacate the juvenile court’s order dismissing Mother’s petition, and we again remand for the juvenile court to redo its best-interest analysis, this time doing so in a present-tense fashion, and not as of 2017 or as of 2019. We once again express no opinion on the substance of the best-interest question, and emphasize that our opinion should not be construed as urging one outcome or another on remand. 

 

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

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In re A.H. – 2021 UT App 57, Ineffective Assistance, Reasonable Efforts

ttps://www.utcourts.gov/opinions/appopin/In%20re%20A.H…20210528_20190846_57.pdf 

In re A.H. – 2021 UT App 57 

THE UTAH COURT OF APPEALS 

STATE OF UTAHIN THE INTEREST OF A.H. AND N.H., PERSONS UNDER EIGHTEEN YEARS OF AGE. 

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

Opinion 

No. 20190846-CA 

Filed May 28, 2021 

Third District Juvenile Court, Salt Lake Department 

The Honorable Mark W. May 

No. 1148287 

Colleen K. Coebergh, Attorney for Appellant 

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

Martha Pierce and Dixie Jackson, Guardians ad Litem 

JUDGE JILL M. POHLMAN authored this Opinion, in which 
JUDGES DAVID N. MORTENSEN and DIANA HAGEN concurred. 

POHLMAN, Judge: 

¶1 K.H. (Father) appeals the juvenile court’s termination of his parental rights as to A.H. and N.H., raising three arguments. First, Father contends that he was denied his right to effective assistance of counsel. Second, he contends that the juvenile court erred in finding that the Division of Child and Family Services (DCFS) provided reasonable efforts toward reunification. Third, he contends that the juvenile court’s reasoning and reliance on the ground of unfitness in terminating his rights was flawed. We affirm. 

BACKGROUND1  

¶2 Father and R.R. (Mother) have three young children together: four-year-old A.H., two-year-old N.H., and an infant, Am.H., who was born during the course of these proceedings. This appeal concerns only Father’s parental rights as to the older children, A.H. and N.H. (collectively, the Children). Mother’s parental rights are not at issue in this appeal, and we mention her only when relevant and necessary for context. 

The Initial Verified Child Welfare Petition 

¶3 Father and Mother’s relationship was “off and on, volatile and abusive.” After reports of drug use in the home and an incident of domestic violence in August 2017, the Children were taken into protective custody and placed with foster parents. Soon afterward, the juvenile court ordered Mother and Father not to have contact with each other. In October 2017, the court held Father’s adjudication hearing and disposition hearing on the same day. The court concluded that Father neglected the Children, that they should remain in the custody of DCFS, and that the primary goal for the Children was reunification with their parents with a secondary goal of adoption. 

¶4 After this hearing, the court also entered findings of fact, including findings about the August 2017 domestic violence incident. Specifically, the court found that Father arrived at the home to find Mother doing drugs. Mother then pulled a knife on Father, and Father twisted her arm to get the knife away before leaving. The Children were present during the incident and were frightened.2 

¶5 At the disposition hearing, the juvenile court also addressed the reunification service plan with regard to Father. At that time, a separate plan had not yet been created for Father, but it was explained to him that the requirements of Mother’s plan also applied to him. Father confirmed that he had “gone over all the requirements of the service plan,” and the court found that Father understood them. 

The Period of Reunification Services 

¶6 Beginning in October 2017, a separate service plan created just for Father required, among other things, Father to submit to random drug testing, complete a substance abuse evaluation and a domestic violence assessment, complete a parenting class, participate in weekly supervised visitation with the Children, provide financially for the Children, and maintain a stable and healthy living environment for them. By the December 2017 review hearing, Father had completed the domestic violence assessment but had not called in to drug test. At the next review hearing in February 2018—six months after the Children were removed—Father had attended domestic violence treatment, but he had failed to take all the requested drug tests, had tested positive for THC3 on some drug tests, and had not attended drug treatment. Although at both hearings DCFS and the guardian ad litem (the GAL) asked to schedule a permanency hearing based on Father’s and Mother’s failure to fully engage in services, the juvenile court denied those requests. 

¶7 By the final review hearing in May 2018—nine months after removal—Father was taking domestic violence classes and had been more consistent in calling in to determine whether he should submit to a drug test. But he was still missing some calls and tests and was still testing positive for THC. Additionally, Father had been verbally aggressive with a DCFS caseworker after a visit had to be canceled because he arrived too late. As a result, the court ordered Father to participate in anger management classes. 

¶8 The court held a permanency hearing in August 2018— twelve months after removal. At this point, Mother was making progress and had the Children in a trial home placement. For his part, Father was also doing well, and he had begun attending drug and alcohol treatment, domestic violence treatment, and anger management classes. By the parties’ agreement, the court found that there had been substantial compliance with the treatment plan, reunification was likely within ninety days, and continued services were in the Children’s best interests. Thus, the court extended reunification services for another three months. 

¶9 In November 2018—fifteen months after removal—the juvenile court held a second permanency hearing, during which it considered the GAL’s motion to terminate the trial home placement and reunification services. Things had “not gone well” for Mother; she had a positive drug test, missed taking the Children to doctor appointments, and had been kicked out of her in-patient treatment center. Father had “done better”; he had completed his substance abuse treatment and was close to finishing his domestic violence classes. But he had missed call-ins for his drug tests until mid-September 2018 and had not completed a psychological exam. Although DCFS discussed placing the Children with Father, he was “decidedly non-committal” and refused to allow DCFS to inspect his home. When asked who would watch the Children while he worked, he answered, “I’ve never thought about it, I don’t know.” And although he was asked in October 2018 to create a plan for how he would handle daycare, work, and medical appointments, he still had not submitted a plan before the second permanency hearing. The Children were returned to foster care, while DCFS, Mother, and Father asked for reunification services to be extended again. But the juvenile court found that even though there had been “substantial progress by both parents, there was not clear and convincing evidence that reunification was probable within 90 days.” Accordingly, the court terminated reunification services and changed the Children’s permanency goal to adoption. 

¶10 Shortly afterward, Mother and Father’s newborn, Am.H., was placed in DCFS custody in a separate child welfare case. Even though reunification services were terminated with respect to A.H. and N.H., nearly the same services were ordered and in place for Am.H.’s case. 

The Petition to Terminate Parental Rights and the Termination Trial 

¶11 DCFS petitioned to terminate Mother’s and Father’s parental rights as to A.H. and N.H. Father then changed attorneys, and Father’s new counsel represented him during the ten-day trial before the juvenile court. 

¶12 To his credit, Father continued to improve and “largely rehabilitated himself” in the time between the second permanency hearing and trial. Nevertheless, the juvenile court found that Father’s “lackadaisical approach to services and the length of time that it took him to achieve substantial rehabilitation [had a] destructive effect [on] his parent/child relationship,” and the court ultimately terminated Father’s parental rights as to the Children. 

¶13 After trial, the juvenile court issued a seventy-nine-page written decision and made extensive findings regarding Father’s efforts and reunification services. Regarding drug testing, the court found that Father tested positive ten times for THC, repeatedly failed to call in to determine if he should test, and provided excuses about his failures to call in that were not credible. Even when the caseworker and the court “constantly reminded” him to submit to drug tests, Father “purposely refused.” Instead, Father decided “to test only when he wanted,” which effectively “deprived the Court of the ability to determine if he was using drugs other than marijuana” because, in the court’s experience, sophisticated drug users know how to time drug tests so that the tests “only reveal[] marijuana use but not other substances.” The court found that Father’s first clean drug test was nine months after the Children’s removal and that Father did not consistently call in to be tested until mid-September 2018. Thus, by the second permanency hearing, Father had complied with this aspect of the service plan for only two months. The court noted, however, that he had been clean since services were terminated. As for the required substance abuse evaluation, the court found that Father completed that portion of the service plan. 

¶14 Father had mixed results on other requirements in the service plan. He had not finished the domestic violence assessment before the second permanency hearing but did finish before trial. Regarding the anger management classes, Father completed that requirement of the service plan, yet he “continue[d] to have outbursts after he completed treatment.” Concerning the psychological evaluation, Father had not completed it before the second permanency hearing.4 Father managed to do so before trial, but it was unknown whether Father had participated in the recommended therapy. 

¶15 As for the required parenting class, Father completed it, but “it did not have the desired effect.” He was “not able to sufficiently improve his parenting abilities in relation to” A.H. and N.H., and he was not in compliance with this requirement by the second permanency hearing in November 2018. 

¶16 One month earlier, in October 2018, Father began Parent Child Connections Interactive Therapy (PCCIT), which is designed to “support the development of healthier child-parent interactions and improve attachment patterns overall.” During PCCIT, Father acknowledged that he “felt like he did not have a lot of skills to handle [A.H.],” who has disabilities. A PCCIT therapist also observed that Father “did not have a close relationship with [N.H.].” Overall, Father attended five PCCIT sessions. A PCCIT therapist observed that N.H. showed “fear and hesitation towards” Father and that although in later sessions N.H. started going to Father earlier in the session, “her reunions with [Father] still highlight[ed] significant anxiety.” The therapist also observed that Father “had to work to set limits with [A.H.] and often tends to just give [A.H.] what he wants and allows him to be aggressive” but that Father had improved in the last two sessions. The PCCIT sessions stopped in November 2018 because the court ended reunification services and changed the Children’s goal to adoption. Even though Father wanted to continue PCCIT and pay for it himself, the court denied that request because it was inconsistent with the goal of adoption. And although PCCIT could have been started earlier, a PCCIT therapist testified at trial that even if Father “had been given the full amount of time to complete PCCIT[,] she did not think therapy would have been successful because [Father] made minimal progress in the time he had.” 

¶17 With one exception, Father regularly attended his weekly supervised visits with the Children. The visits were “troubling,” however, because Father persisted in bringing toys and food even when asked not to do so. The toys and food interfered with creating a “normal” setting for the evaluators to observe the parent/child interaction and led the Children to view Father “as a party dad or a type of Santa—one who comes with toys and gifts.” While Father complied with the requirement to attend visits, he showed a “lack of progress” and never “progressed to unsupervised visits.” 

¶18 In terms of the requirement to provide financially for the Children, the court found that Father had “paid nothing in child support” since the court became involved in the matter and that he owed a total of $11,841.75 in back payments. At the same time, Father testified that he had $7,000 in savings and owned his mortgaged home. The court further found that Father works three jobs and had the ability to pay child support. Father told the court that he would pay child support if the Children were returned to him, but the court found that this statement showed that Father “fundamentally misunderstands the concept of child support.” Because Father “has purposely avoided his obligation,” the court found that Father did not comply with this portion of the service plan “at any time.” 

¶19 As for Father’s housing situation, the court found that at the time of the second permanency hearing, Father “did not have a stable and healthy living environment for his Children.” Multiple times, Father “purposely refused” to allow DCFS to inspect his home until after services were terminated. By the end of December 2018, however, his home was deemed suitable for children. 

¶20 At trial, Father testified that he contacted the Office of Child Protection Ombudsman (the Ombudsman) in December 2018 to express concerns over how DCFS had handled his case. The Ombudsman issued a letter in which it “largely validated [Father’s] concerns,” and in his defense, Father presented the Ombudsman’s opinion to support his position that DCFS did not provide reasonable services to him. But the court found that the Ombudsman did not speak with Father’s caseworkers and supervisors and did not review all the relevant documentation. The court thus had “serious concerns about the quality of the investigation done by [the Ombudsman].” In written detail, the court discredited much of the Ombudsman’s opinion, finding instead that DCFS provided adequate support to Father. 

¶21 Notably, in rejecting the Ombudsman’s opinion, the court found that Father “did not take reunification services seriously for nearly a year.” According to the court, Father “knew what was expected” of him, yet he “showed little interest in reunification until he realized too late that [Mother] was not going to have the [C]hildren returned to her.” Indeed, “[c]ajoling by the caseworker at visits and by the Court at review hearings appeared to have little effect.” And even when DCFS “made a push to return” the Children to Father in the fall of 2018, Father “showed little interest” in reunification. The court further found that “[b]y his own fault, not [DCFS’s], [Father] chose to rely on [Mother] to get the [C]hildren back,” and thus he “just took a lackadaisical approach to completing services on time” and “did not seriously engage in services in a timely fashion.” Ultimately, the court found that DCFS “made a fair and honest attempt to provide services to [Father] and the services provided to [Father] were reasonable.” 

¶22 The juvenile court recognized that while Father had “limited general parenting skills with young children,” he was “doing better”; he had “a steady job, an appropriate home and is drug free.” In fact, by the end of trial, Father had the infant, Am.H., in a trial home placement. The court saw that Father was “developing further skills at managing and appropriately responding to his children.” Yet the court observed that “providing daily care of three young children would be a significant challenge,” especially considering A.H.’s disabilities. When Father was given special training on how to deal with A.H., he “did not seem to learn or progress in his understanding.” The Children did not have an attachment to Father, and even though Father had some positive interactions with the Children, those interactions were “more about drinking, eating, and playing with toys,” not “a need by the children for affection or connection (physical or emotional) with” Father. 

¶23 Significantly, with respect to N.H., the court found that during the time it took Father to improve himself, “the parent-child relationship was severely damaged.” N.H. was never in Father’s custody before she was removed, and thus “no parent/child relationship ever existed” between them. Further, the court found that no relationship between Father and N.H. “developed over the course of the case” and that N.H. “has never viewed [Father] as a caregiver or parent and she is apprehensive in his presence.” The court concluded that Father’s present parenting ability did not help him with regard to N.H. and his “lackadaisical approach to services deprived him of the opportunity to form a meaningful parent/child bond” with N.H. 

¶24 With respect to A.H., the court found that while Father and A.H. had a parent/child relationship before A.H.’s removal, “that relationship has drastically changed” in the two years since then. For example, A.H. was excited to see Father at visits but his excitement was “more about drinking, eating, and playing,” and when the visits ended, A.H. did not initiate hugs with Father or whine for Father not to leave. Instead, A.H. would run to his foster parents. The court found that A.H.’s relationship with his foster parents “has transformed into the only meaningful attachment relationship that he has” and that removing A.H. from them would present “a danger of [A.H.] suffering from Reactive Attachment Disorder.” The court concluded that the duration of A.H.’s removal and the length of time that “it took [Father] to substantially rehabilitate himself had a significant destructive effect on their parent/child relationship”; thus, Father’s “present parenting ability [did] not overcome the destructive effects of his past actions/inactions.” 

¶25 Additionally, the court made findings about Mother and Father’s relationship, which it viewed as “concerning” and “troubling.” The court found that Mother and Father “largely ignored” the court’s no-contact order, and Father stated in April 2019 that they were living together. It also noted that while Mother and Father tried at trial “to downplay the amount of domestic violence that had occurred between them,” they were “quite upfront” in evaluations “about the significant role domestic violence had played in their relationship.” It further found that Father “has problems setting boundaries with [Mother],” that he had “chosen to remain” with Mother, and that “[a]s a couple they cannot properly raise [the Children].” The court noted that it had returned custody of Am.H. to Father, not Mother, and that if Father “reunites” with Mother, Am.H.’s “custody situation could change.” 

¶26 In conclusion, the juvenile court found five grounds for terminating Father’s parental rights as to A.H. and N.H. See Utah Code Ann. § 78A-6-507(1)(b)–(f) (LexisNexis 2018).5 The court also found that terminating Father’s parental rights was in the Children’s best interests. See id. § 78A-6-503(12). It added that termination “would also prevent the substantial likelihood of continued neglect if the [C]hildren were returned to the parents.” It also found that the Children “view the foster parents as their caretakers and providers,” not Father and Mother, and that the foster parents are “ready and willing to adopt” the Children. Furthermore, the court found that terminating Father’s parental rights was “strictly necessary” and in the Children’s best interests so that their foster parents could adopt them. See id. § 78A-6-507(1). 

¶27 Accordingly, the juvenile court entered an order terminating Father’s parental rights as to A.H. and N.H.6 Father appeals. 

ISSUES AND STANDARDS OF REVIEW 

¶28 Now represented by different counsel on appeal, Father raises three main issues. First, Father asserts that his trial counsel rendered constitutionally ineffective assistance in various ways. “An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law.” In re S.S., 2015 UT App 230, ¶ 20, 360 P.3d 16 (cleaned up). 

¶29 Second, Father asserts that the juvenile court erred in finding that DCFS provided reasonable efforts toward reunification. “A court’s determination that DCFS made reasonable efforts to provide reunification services involves an application of statutory law to the facts that presents a mixed question of fact and law, requiring review of the juvenile court’s factual findings for clear error and its conclusions of law for correctness, affording the court some discretion in applying the law to the facts.” In re N.K., 2020 UT App 26, ¶ 15, 461 P.3d 1116 (cleaned up). 

¶30 Third, Father asserts that the juvenile court erred in terminating his parental rights on the ground of unfitness. “The ultimate conclusion that a parent is unfit or that other grounds for termination have been established is a legal question, but such decisions rely heavily on the juvenile court’s assessment and weighing of the facts in any given case.” In re J.M., 2020 UT App 52, ¶ 22, 463 P.3d 66 (cleaned up). We thus “afford a high degree of deference to a juvenile court’s decision with regard to the existence of statutory grounds, and overturn it only when the result is against the clear weight of the evidence or leaves us with a firm and definite conviction that a mistake has been made.” Id. (cleaned up). Further, “when a foundation for the juvenile court’s decision exists in the evidence, an appellate court may not engage in a reweighing of the evidence.” Id. (cleaned up). 

ANALYSIS 

¶31 To terminate parental rights, the juvenile court must make two separate findings by clear and convincing evidence. See In re B.T.B., 2020 UT 60, ¶ 46, 472 P.3d 827; see also Utah Code Ann. § 78A-6-506(3) (LexisNexis 2018); In re C.Z., 2021 UT App 28, ¶¶ 17–18, 484 P.3d 431. “First, it must find grounds for termination under Utah Code section 78A-6-507.” In re B.T.B., 2020 UT 60, ¶ 46 (cleaned up). Clear and convincing evidence establishing “any one” of the enumerated statutory grounds for termination is sufficient to fulfill the first finding for termination. See Utah Code Ann. § 78A-6-507(1) (LexisNexis 2018); see also In re J.M., 2020 UT App 52, ¶ 30, 463 P.3d 66; In re F.C. III, 2003 UT App 397, ¶ 6, 81 P.3d 790. Second, the court “must find that termination of the parent’s rights is in the best interests of the child.” In re B.T.B., 2020 UT 60, ¶ 46 (cleaned up); see also Utah Code Ann. § 78A-6-503(12) (LexisNexis 2018). As part of the best-interests inquiry, “a court must specifically address whether termination is strictly necessary to promote the child’s welfare and best interest.” In re B.T.B., 2020 UT 60, ¶ 76; see also Utah Code Ann. § 78A-6-507(1). Additionally, when “the court has directed [DCFS] to provide reunification services to a parent, the court must find that [DCFS] made reasonable efforts to provide those services before the court may terminate the parent’s rights.” Utah Code Ann. § 78A-6-507(3)(a). 

¶32 The juvenile court in this case found five separate grounds to terminate Father’s parental rights: (1) “the parent has neglected . . . the child,” id. § 78A-6-507(1)(b); (2) “the parent is unfit or incompetent,” id. § 78A-6-507(1)(c); (3) “the child is being cared for in an out-of-home placement under the supervision of the court or [DCFS] . . . [and] the parent has substantially neglected, wilfully refused, or has been unable or unwilling to remedy the circumstances that cause the child to be in an out-of-home placement; and . . . there is a substantial likelihood that the parent will not be capable of exercising proper and effective parental care in the near future,” id. § 78A-6-507(1)(d); (4) “failure of parental adjustment,” id. § 78A-6-507(1)(e), which means that the parent has been “unable or unwilling within a reasonable time to substantially correct the circumstances, conduct, or conditions that led to placement of their child outside of their home, notwithstanding reasonable and appropriate efforts made by [DCFS] to return the child to that home,” id. § 78A-6-502(2); and (5) “only token efforts have been made by the parent . . . to support . . . the child,” id. § 78A-6-507(1)(f). The juvenile court also found that terminating Father’s parental rights was strictly necessary and in the Children’s best interests. Father does not challenge the court’s decision regarding the Children’s best interests. 

¶33 We now turn to Father’s arguments regarding ineffective assistance of counsel, reasonable efforts at reunification, and grounds for termination. 

  1. Ineffective Assistance

¶34 Father first contends that his trial counsel provided ineffective assistance in four respects. First, he argues that trial counsel misunderstood that the initial adjudication was not being relitigated at trial and thus employed a flawed trial strategy aimed at the domestic violence incident underlying the initial adjudication. See supra ¶¶ 3–4. Second, Father argues that trial counsel “devoted a significant portion of the trial” urging the juvenile court to rely on the Ombudsman’s opinion, which was ultimately discredited. Third, Father argues that trial counsel misunderstood or was unaware of the applicable law, process, and court rules, including the burden of proof, and he further claims that trial counsel erroneously believed proving a justification for the domestic violence incident would mitigate the harm to the Children. Fourth, Father argues that trial counsel introduced or emphasized harmful evidence, including that Father had $7,000 in savings and had paid his own attorney fees and that Father had physically disciplined his older child several years earlier. 

¶35 “To prevail on an ineffective assistance of counsel claim, [Father] must show that (1) ‘counsel’s performance was deficient’ and (2) this ‘deficient performance prejudiced the defense.’” See In re C.M.R., 2020 UT App 114, ¶ 19, 473 P.3d 184 (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)); see also In re E.H., 880 P.2d 11, 13 (Utah Ct. App. 1994) (stating that parents are entitled to effective assistance of counsel in child welfare proceedings and adopting “the Strickland test to determine a claim for ineffective assistance of counsel in proceedings involving termination of parental rights”). “Because failure to establish either prong of the [Strickland] test is fatal to an ineffective assistance of counsel claim, we are free to address [Father’s] claims under either prong.” See In re C.M.R., 2020 UT App 114, ¶ 19 (cleaned up). 

¶36 Father has identified some questionable decisions on trial counsel’s part. But even if trial counsel did perform deficiently, we resolve Father’s ineffective assistance claims on the prejudice prong. 

¶37 To establish prejudice, Father “must ‘demonstrate a reasonable probability that the outcome of [his] case would have been different absent counsel’s error. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding.’” See id. ¶ 21 (quoting State v. Scott, 2020 UT 13, ¶ 43, 462 P.3d 350). In evaluating the likelihood of a different result, we “consider the totality of the evidence before the judge,” bearing in mind that “[s]ome errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect.” Strickland, 466 U.S. at 695–96. 

¶38 Father has not carried his burden of demonstrating prejudice. “To establish ineffective assistance of counsel in parental rights termination proceedings, it is imperative that a parent demonstrate deficient performance and prejudice for each ground justifying termination.” In re B.H., 2003 UT App 160U, para. 4. Thus, because the juvenile court found five statutory grounds warranting the termination of Father’s parental rights, Father must explain why the court’s finding on each ground likely would have been different but for trial counsel’s alleged deficient performance. See Utah Code Ann. § 78A-6-507(1) (LexisNexis 2018) (stating that the court may terminate parental rights upon finding “any one” ground for termination). He has not even attempted to do so. 

¶39 Instead, Father generally asserts that trial counsel’s tactics “detracted from the fact that [Father] had done everything necessary to cure the domestic violence situation found in the initial adjudication” and that trial counsel “set the stage” for the court to believe Father “doesn’t get it,” because the defense cast blame on Mother for the domestic violence incident. (Cleaned up.) But the juvenile court acknowledged that Father “spent a lot of time presenting evidence” of his continued work on services up to the time of trial, and the court gave Father credit for his progress, finding that he had “largely rehabilitated himself” by the time of trial. And apart from trial counsel’s arguments, the court had other evidence that Father did not progress in important ways. For example, the court found “the initial parenting class was not successful, even according to [Father],” and Father’s visits with the Children never progressed to unsupervised visits. What’s more, the court found that Father did not seriously engage in services in a timely manner. Father’s delay was especially problematic in this case because it had a significant destructive effect on his parent-child relationship with A.H. and prevented him from developing any parent-child relationship with N.H. 

¶40 Referring to the approximately twelve-month timeframe after a child’s removal during which a parent must show progress in changing the conduct or condition that required the removal, the court explained the importance of “removing the child from the legal limbo of State custody as soon as possible so as to provide that child with a permanent and stable home.” (Quoting In re M.L., 965 P.2d 551, 560 (Utah Ct. App. 1998).) The court further recognized the connection between “a parent’s inaction over a long period of time” and “the deterioration of the parent-child relationship during that time period.” (Quoting In re M.L., 965 P.2d at 560.) The court’s approach was consistent with Utah caselaw, which directs that “the weight which a juvenile court must give any present ability evidence is necessarily dependent on the amount of time during which the parent displayed an unwillingness or inability to improve his or her conduct and on any destructive effect the parent’s past conduct or the parent’s delay in rectifying the conduct has had on the parent’s ability to resume a parent-child relationship with the child.” See In re B.R., 2007 UT 82, ¶ 13, 171 P.3d 435 (cleaned up). In this case, even if trial counsel had done more to emphasize Father’s rehabilitation or less to emphasize Father’s rationalization of the domestic violence incident, it is unlikely that the juvenile court would have changed its view regarding the destruction of the parent-child relationships. See Utah Code Ann. § 78A-6-507(1)(e); In re M.L., 965 P.2d at 561–62 (instructing that in considering a failure of parental adjustment, the court must weigh a parent’s present ability evidence “in light of the parent’s past conduct and its debilitating effect on the parent-child relationship”). 

¶41 Father also suggests that his trial counsel’s performance was prejudicial because trial counsel elicited testimony about Father’s financial condition and Father’s earlier physical discipline of another child that “then served as grounds for termination.” But even without the testimony elicited by Father’s counsel about Father’s finances, the State introduced evidence that Father was employed yet had paid no child support since the time the Children were taken into DCFS custody. Thus, Father’s testimony may not have been helpful, but Father has not shown that without it the court was reasonably likely to find that Father had made more than token efforts to financially support the Children. See Utah Code Ann. § 78A-6-507(1)(f).7 As to Father’s physical discipline of another child, the court made a finding that this incident had occurred seven years earlier. But this finding does not appear to have played a significant role in the court’s decisions regarding the grounds for termination. The court did not mention it again and instead repeatedly emphasized the destructive effect Father’s neglect and inaction had on the Children. Given the totality of the circumstances, it is not reasonably likely that the court would have viewed Father and his relationship with the Children any differently had counsel not introduced these two pieces of evidence. 

¶42 Additionally, our own review of the record indicates that Father was not prejudiced by his trial counsel’s performance. The court understood and analyzed the facts, most of which are unchallenged on appeal. In a detailed written decision, the court carefully applied the correct law and was not misled by any confusion that trial counsel may have had. Despite Father’s strides, the court still had numerous concerns about Father, and its decision to terminate Father’s parental rights was driven largely by Father’s own untimely efforts to engage in services. 

¶43 Indeed, termination for failure of parental adjustment is well supported in the evidence. Citing Utah Code section 78A-6-507(1)(e), the court found that Father was “unable or unwilling within a reasonable time to substantially correct the circumstances, conduct or conditions that led to the placement of [the Children] outside of” his home. Although DCFS provided reasonable and appropriate reunification services to Father, Father did not take the various services seriously for almost a year. See infra ¶¶ 46–49. For example, Father did not comply with the drug-testing requirement for more than eleven months—around two months before the second permanency hearing. He also “purposely refused” multiple times to allow DCFS to inspect his home until after services were terminated. And even when DCFS “made a push to return” the Children to Father, he “showed little interest” in the attempts to reunify. Cf. In re C.Z., 2021 UT App 28, ¶ 24 (affirming the juvenile court’s conclusion that “the father’s efforts were far too little far too late” (cleaned up)). Importantly, Father’s delay caused damage to his parent-child relationships with both of the Children. 

¶44 Furthermore, Father largely ignored the court’s no-contact order with Mother, and he had “chosen to remain” in a volatile relationship with her—a relationship that involved domestic violence. Given that the Children were removed after a domestic violence incident, Father’s refusal to distance himself from Mother showed his unwillingness to correct the circumstances that led to the Children’s removal. Cf. id. ¶¶ 25–26 (“The father’s choice to remain involved with the mother—whether romantically or as a co-parent—placed the child at continued risk.”). In light of this strong evidence that Father exhibited a failure of parental adjustment, we conclude that it is unlikely that trial counsel’s performance had any impact on the court’s findings or conclusion on this ground for termination. In other words, even if counsel had performed more effectively in the ways Father identifies, it is not reasonably likely that the court would not have found at least one ground upon which to base its termination of Father’s parental rights. 

¶45 In short, our confidence in the outcome of this case is not undermined by any of trial counsel’s perceived shortcomings. Father’s claims of ineffective assistance are therefore unavailing. 

  1. Reunification Efforts

¶46 Next, Father contends that DCFS did not provide reasonable reunification services to him and that the juvenile court erred in finding to the contrary. Father asserts that despite knowing he needed help with his parenting skills given A.H.’s disabilities and N.H.’s attachment issues, DCFS did not provide additional support “until it was too late.” In particular, Father points out that the PCCIT sessions began during an extension period for reunification services and only one month before the second permanency hearing, at which the court terminated services. He further argues that DCFS’s efforts were unreasonable because its delay in providing PCCIT until he was “up against the permanency deadline” limited his success in the time allotted and “virtually assured termination of reunification services.” 

¶47 “Generally, as long as DCFS has made a fair and serious 

attempt to reunify a parent with a child prior to seeking to terminate parental rights, [DCFS] has complied with its statutory obligation.” In re A.W., 2018 UT App 217, ¶ 29, 437 P.3d 640 (cleaned up). But the process of reunification is recognized as “a two way street which requires commitment on the part of the parents, as well as the availability of services from the State.” In re K.K., 2017 UT App 58, ¶ 5, 397 P.3d 745 (per curiam) (cleaned up). Reunification services ordinarily last twelve months after a child’s removal, but the juvenile court may, under certain conditions, extend services for up to 180 days. Utah Code Ann. § 78A-6-314(6)–(7) (LexisNexis 2018). Ultimately, “reasonableness is an objective standard that depends upon a careful consideration of the facts of each individual case,” and the juvenile court thus has “broad discretion in determining whether DCFS made reasonable efforts to reunify” a parent with a child. In re K.K., 2017 UT App 58, ¶ 5 (cleaned up); accord In re A.W., 2018 UT App 217, ¶ 29. 

¶48 Here, DCFS provided numerous services to Father for more than a year, including drug testing, substance abuse treatment, psychological evaluation, domestic violence treatment, anger management classes, parenting classes, and weekly supervised visitation with the Children. The juvenile court extended these services, and it found that Father “actually engaged in the services,” knew what services needed to be completed, and “knew what was expected” of him. Yet Father, by his own fault, “took a lackadaisical approach to completing the services on time because he was relying on [Mother] to get the [C]hildren back.” The caseworker’s “[c]ajoling” at visits had “little effect” on Father. As discussed, DCFS’s provision of services is “a two way street which requires commitment on the part of the parents.” In re K.K., 2017 UT App 58, ¶ 5 (cleaned up). 

But the court found that Father “did not take reunification services seriously for nearly a year.” While DCFS’s provision of various services and attempts to help Father were reasonable, Father bore the responsibility of participating in and completing those services, and it was Father’s “lackadaisical” and belated efforts that fell short. 

¶49 Father also complains that DCFS unreasonably delayed PCCIT, especially when the juvenile court found that the therapy “could have been provided earlier.” But Father overlooks that the court also found that PCCIT “was limited because the initial parenting class was not successful, even according to [Father].” Given Father’s lack of progress in parenting class and his overall lack of timely efforts, we cannot say that DCFS’s services were unreasonable under the circumstances. We thus reject this challenge to the court’s decision. 

III. Grounds for Termination 

¶50 Finally, Father asserts that the juvenile court erred in terminating his parental rights on the ground of unfitness. He suggests that this ground is unsupported by the evidence because he had made significant progress by the time of trial and the court had returned Am.H. to his care. He also claims that the court erroneously deemed him an unfit parent when he merely failed to be a “model parent.” See generally Utah Code Ann. § 78A-6-503(4) (LexisNexis 2018) (stating that a parent’s fundamental liberty interest “does not cease to exist simply because a parent may fail to be a model parent”). 

¶51 To the extent that Father pursues a sufficiency of the evidence challenge, he has not carried his burden on appeal. Although he discusses unfitness and mentions neglect, he has not undertaken an analysis of each ground supporting the court’s termination decision. “And we will not reverse a ruling of a lower court that rests on independent alternative grounds where the appellant challenges less than all of those grounds.” In re J.M., 2020 UT App 52, ¶ 30, 463 P.3d 66 (cleaned up). 

¶52 To the extent Father believes that the court terminated his 

rights based solely on his failure to be a model parent, we are not persuaded. The court made detailed findings in support of five grounds for termination, and this case involves much more serious problems than Father’s mere failure to be a model parent. Thus, we reject Father’s challenge to the grounds for termination. 

CONCLUSION 

¶53 Father has not shown that he was prejudiced by his trial counsel’s performance, and we therefore reject his claims of ineffective assistance of counsel. Father also has not established error in the juvenile court’s decisions regarding DCFS’s reasonable efforts and the grounds for termination. Accordingly, we affirm the court’s decision terminating Father’s parental rights as to A.H. and N.H. 

 

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

 

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Do you automatically lose your kid if CPS takes you to court?

No, but if CPS or DCFS or DFS or whatever your jurisdiction calls that particular agency of the state filed an action in court to place your children in foster care and/or to terminate your parental rights, the odds are against you. If you are innocent of the charges against you (that does happen at a surprising rate, though we all need to acknowledge that there are plenty of legitimate times CPS will intervene on behalf of the child for that child protection) and you are being given the runaround (or worse, being chewed up by a bureaucratic machine that isn’t interested in the truth), lawyer up. It is all but guaranteed that you couldn’t defend yourself successfully without a good (a good) lawyer’s help.

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

https://www.quora.com/Do-you-automatically-lose-your-kid-if-CPS-takes-you-to-court/answer/Eric-Johnson-311?prompt_topic_bio=1

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Good news, for parents deserving of joint equal physical custody

Good news, apparently, for parents deserving of joint equal physical custody of their children but who have, up until now, been fighting an unfair, unnecessarily uphill battle.

The Utah Legislature passed, during the 2021 legislative session, a new Utah Code section. It’s Section 30-3-35.2. Here is a copy of the new code section (see below). Section 30-3-35.2 goes into effect May 5, 2021. Note: this is not a law that will, of itself, constitute a basis for seeking a change of an existing custody award. But if you are in the middle of a custody fight for joint equal custody or expect to be in the future, you will want to know about section 30-3-35.2. § 30-3-35.2.

30-3-35.2.Equal parent-time schedule.
(1) (a) A court may order the equal parent-time schedule described in this section if the court determines that:

(i) the equal parent-time schedule is in the child’s best interest;
(ii) each parent has been actively involved in the child’s life; and
(iii) each parent can effectively facilitate the equal parent-time schedule.

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

(i) each parent’s demonstrated responsibility in caring for the child;
(ii) each parent’s involvement in child care;
(iii) each parent’s presence or volunteer efforts in the child’s school and at extracurricular activities;
(iv) each parent’s assistance with the child’s homework;
(v) each parent’s involvement in preparation of meals, bath time, and bedtime for the child;
(vi) each parent’s bond with the child; and
(vii) any other factor the court considers relevant.

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

(i) the geographic distance between the residence of each parent and the distance between each residence and the child’s school;
(ii) each parent’s ability to assist with the child’s after school care;
(iii) the health of the child and each parent, consistent with Subsection 30-3-10(6);
(iv) the flexibility of each parent’s employment or other schedule;
(v) each parent’s ability to provide appropriate playtime with the child;
(vi) each parent’s history and ability to implement a flexible schedule for the child;
(vii) physical facilities of each parent’s residence; and
(viii) any other factor the court considers relevant.

(2) (a) If the parties agree to or the court orders the equal parent-time schedule described in this section, a parenting plan in accordance with Sections 30-3-10.7through 30-3-10.10 shall be filed with an order incorporating the equal parent-time schedule.

(b) An order under this section shall result in 182 overnights per year for one parent, and 183 overnights per year for the other parent.

(c) Under the equal parent-time schedule, neither parent is considered to have the child
109     the majority of the time for the purposes of Subsection 30-3-10.3(4) or 30-3-10.9(5)(c)(ii).

(d) Child support for the equal parent-time schedule shall be consistent with Section 78B-12-208.

(e) (i) A court shall determine which parent receives 182 overnights and which parent receives 183 overnights for parent-time.

(ii) For the purpose of calculating child support under Section 78B-12-208, the amount of time to be spent with the parent who has the lower gross monthly income is considered 183 overnights, regardless of whether the parent receives 182 overnights or 183 overnights under Subsection (2)(e)(i).

(3) (a) Unless the parents agree otherwise and subject to a holiday, the equal parent-time schedule is as follows:

(i) one parent shall exercise parent-time starting Monday morning and ending Wednesday morning;
(ii) the other parent shall exercise parent-time starting Wednesday morning and ending Friday morning; and
(iii) each parent shall alternate weeks exercising parent-time starting Friday morning and ending Monday morning.

(b) The child exchange shall take place:

(i) at the time the child’s school begins; or
(ii) if school is not in session, at 9 a.m.

(4) (a) The parents may create a holiday schedule.

(b) If the parents are unable to create a holiday schedule under Subsection (4)(a), the court shall:

(i) order the holiday schedule described in Section 30-3-35; and
(ii) designate which parent shall exercise parent-time for each holiday described in Section 30-3-35.

(5) (a) Each year, a parent may designate two consecutive weeks to exercise uninterrupted parent-time during the summer when school is not in session.

(b) (i) One parent may make a designation at any time and the other parent may make a designation after May 1.

(ii) A parent shall make a designation at least 30 days before the day on which the designated two-week period begins.

(c) The court shall designate which parent may make the earlier designation described in Subsection (5)(b)(i) for an even numbered year with the other parent allowed to make the earlier designation in an odd numbered year.

(d) The two consecutive weeks described in Subsection (5)(a) take precedence over all holidays except for Mother’s Day and Father’s Day.

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

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2021 UT App 28 – Utah Ct. Appeals – In re C.Z.

2021 UT App 28 – THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF C.Z., A PERSON UNDER EIGHTEEN YEARS OF AGE.
M.Z., Appellant,
v.
STATE OF UTAH, Appellee.

Opinion
No. 20200227-CA
Filed March 12, 2021

Third District Court, Salt Lake Department
The Honorable Mark W. May
No. 1156353

Colleen K. Coebergh, Attorney for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem

JUDGE DIANA HAGEN authored this Opinion, in which JUDGE GREGORY K. ORME and SENIOR JUDGE KATE APPLEBY concurred.[1]

HAGEN, Judge:

¶1 M.Z. (the father) appeals the juvenile court’s termination of his parental rights to his son, C.Z. (the child). We conclude that the State proved by clear and convincing evidence that the father had not remedied the circumstances that led to the child’s removal and affirm the juvenile court’s termination of the father’s parental rights.

BACKGROUND

¶2        The child was born in May 2017.[2] In December 2017, C.Z.’s mother (the mother) was charged with aggravated assault and domestic violence in the presence of a child for stabbing the father in the chest in front of the child. At the time, the mother was already under juvenile court jurisdiction for criminal trespass and habitual truancy. The juvenile court issued a no-contact order between the mother and the father and ordered that the child be assessed as “at risk of removal” from the mother’s care.

¶3        Throughout January and February 2018, the Division of Child and Family Services (DCFS) “worked with the family in devising a safety plan for the child to remain” in the home with the mother. DCFS reported that the mother had several “thinking errors,” including her beliefs that she did not need to abide by the no-contact order, did not need therapy, and that there was no harm in smoking marijuana while breastfeeding the child. DCFS also reported that the father and mother had smoked marijuana in the presence of the child on multiple occasions, including one instance where the father was caught smoking in the mother’s family’s house, resulting in the family’s eviction. At the end of February, the mother was ordered “to be held in the Salt Lake Valley Detention Center” for a brief period.

¶4        In March 2018, DCFS again attempted to meet with the mother to establish a safety plan so the child could remain in her custody. The mother missed the meeting, and DCFS received a report that she had been smoking marijuana and had violated the no-contact order by spending the weekend with the father. As a result, the State filed a motion for the child’s expedited placement in temporary custody. At the shelter hearing, the juvenile court granted the motion, placing the child in the temporary custody of DCFS. At a follow-up hearing later that month, the court made official findings. In relation to the mother, the court found the child was “neglected” under Utah Code subsection 78A-6-105(41). In relation to the father, the court found the child was “[d]ependent” under Utah Code subsection 78A-6-105(14), meaning that the child was deemed “homeless or without proper care through no fault of the child’s parent, guardian, or custodian.”

¶5        Two months later, in May of 2018, the court held a disposition hearing to establish permanency goals for the child pursuant to Utah Code section 78A-6-312. The court determined that the child’s primary permanency goal would be “first and foremost reunification” with the parents and “the concurrent plan” would be “adoption.” The court ordered DCFS to “provide reunification services to the parents consistent with the services identified in the service plan.” The court ordered all parties to follow the service plan, which included a requirement that the parents complete domestic violence assessments. After father’s counsel raised concerns that the father would “get assessed as a perpetrator rather than a victim,” the court ordered that the plan be “amended to have the father participate in a [domestic violence] class as a victim.”

¶6        At the first child welfare review hearing in July 2018, the court authorized unsupervised visits for the father, but not for the mother, whose parent-time continued to be supervised. The caseworker noted that the parents still seemed to be spending time together and suggested couples therapy if they hoped to co-parent someday. The court lifted the no-contact order but warned the parents that it was for the purpose of domestic violence therapy only and “that doesn’t mean you drop by any time you want.” At the next child welfare review hearing, in September 2018, the court found that both parents were “doing really well” and “marching toward reunification.”

¶7        The steady progress did not continue, however. At the third child welfare review in December 2018, the court found that the mother was smoking marijuana again, the father was not following through with his therapy and, most alarming, there had been another domestic violence incident in the presence of the child on Thanksgiving Day. The parents, apparently living together again, fought about the child’s nap, and the mother hit the father in the face. He responded by pushing her away by the throat. She grabbed him by the hair and tried to prevent him from leaving. Once he got away, the father ran to a nearby school, where the responding police officer found him with a bloody nose and no shoes. The officer cited the mother as “the predominant aggressor” but allowed the father to remain in the home because, the officer later testified, the father “basically wanted to go back because he said his child was a ward of the State, that this was the only time they got to spend time with him.” The juvenile court warned both parents this was “a step back” and warned the father in particular about the domestic violence, saying, “You have to go to therapy. . . . [Y]ou’ve got to do all these things” and there is “not a lot of time left.” The court informed both parents that, if it was not safe for the child to return home by the time of the final permanency hearing, the court would have no choice but to “terminate services” toward reunification and instead move toward adoption, and “[n]obody wants to go down that road.”

¶8        The final child welfare review hearing was sixty days later, in February 2019. Report of the parents’ progress was still mixed. The State expressed ongoing concerns about the father’s ability to “hold boundaries with Mom and keep kiddo safe.” The DCFS caseworker also reported that the father’s attendance at therapy had not been consistent, although father’s counsel complained that the father still had not received enough of the type of specialized domestic violence therapy he needed as a victim. The court informed the parents that if the permanency hearing were that day, it could not return the child to them. The court warned the father, in particular, that if reunification of the child with the mother was not going to be possible, the father had better start giving “full effort” and decide, “Is this what you want?”

¶9        At the permanency hearing on March 19, 2019, the court found that “return to the home would be contrary to the welfare of the child at [that] time.” But, the court did find, by a preponderance of the evidence that there had been substantial compliance, reunification was probable within ninety days, and an extension would be in the best interest of the child. The court warned the parents that the report in ninety days had “better be a great report.”

¶10 At the continued permanency hearing on May 30, 2019, the DCFS caseworker reported that the father “had been fully engaged” and wanted reunification to continue, but the mother had “reached the point that she believe[d] that she’s not in the child’s best interest” and was ready to relinquish her parental rights voluntarily. The caseworker also expressed concern that the parents were apparently living together even though the father reported moving out of the mother’s residence several months earlier. The guardian ad litem reported that she did not feel it was safe to return the child to either parent that day. She had particular concern about the father’s “relationship with the mother.” The court gave the father one more extension, but with the following warning:

[T]here’s continued domestic violence . . . . [E]ven if [the father] is the victim, he was stabbed the first time and he went back into that relationship with his child, and then there’s been another domestic violence incident, and they’re still together . . . . He is supposed to be in treatment, and he hasn’t gone .

. . .

. . . .

Dad, you have to get in treatment. I mean that’s the bottom line. I don’t need any more excuses. You have to be in treatment. You keep going back to a toxic relationship, and if you’re going to do that, then whatever her baggage is is your baggage. That’s the way the law works.

¶11 At that final permanency hearing in August 2019, the court found that returning the child to the father would create a substantial risk of detriment to the child’s physical or emotional well-being. The court explained, “[T]he law is pretty firm and . . . at this point I can’t give another extension, and it’s not safe today to send the child home. So under the law, . . . I have to terminate reunification services, I have to change the goal to adoption.”

¶12 The State filed a petition for termination of parental rights, and the court set the matter for trial. In the interim, the mother voluntarily relinquished her parental rights.

¶13 At trial in January 2020, the State presented evidence of the father’s continued unhealthy relationship with the mother. The father’s therapist, provided by DCFS, testified that the father had “symptoms of post-traumatic stress disorder” as a result of “having been attacked by” the mother. Nevertheless, the father testified that the mother had accompanied him on the last few visits with the child, after she voluntarily relinquished her parental rights. The foster parent, who dropped off the child for visits with the father, testified that the mother was with the father at every visit in December and January. When the State asked the father why the mother went along, he answered twice that the mother “wanted to see” the child and the father had never gotten a clear answer from the case worker as to whether that was allowed. The child’s guardian ad litem asked the court to expressly order that the mother was not allowed to attend visits with the child.

¶14 In February 2020, the juvenile court entered an order terminating the father’s parental rights. Applying a clear-and-convincing-evidence standard, the court made extensive factual findings and concluded that those findings supported four statutory grounds for termination: (1) that the father had been “an unfit or incompetent parent of his child”; (2) that the child had “been cared for in an out-of-home placement under the supervision” of DCFS, the father had “substantially neglected, willfully refused, or ha[d] been unable or unwilling to remedy the circumstances that cause[d] the child to be in an out-of-home placement,” and “there [was] a substantial likelihood that the parent [would] not be capable of exercising proper and effective parental care in the near future”; (3) that there had been a failure of parental adjustment; and (4) that the father had made “only token efforts to provide support” for the child. See Utah Code Ann. § 78A-6-507(1)(c)–(f) (LexisNexis Supp. 2020). The court concluded that, “based on the totality of the evidence, it [was] in [the child’s] best interest to be adopted by the foster parents” and that it was “strictly necessary to terminate the father’s parental rights to permit that adoption.”

ISSUE AND STANDARD OF REVIEW

¶15 The father contends that the juvenile court erred in terminating his parental rights. “Whether a parent’s rights should be terminated presents a mixed question of law and fact.” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435. “The ultimate conclusion that a parent is unfit or that other grounds for termination have been established is a legal question.” In re L.M., 2019 UT App 174, ¶ 5, 453 P.3d 651 (per curiam) (cleaned up). But because “such decisions rely heavily on the juvenile court’s assessment and weighing of the facts in any given case,” that “decision should be afforded a high degree of deference.” Id. (cleaned up). Thus, we will overturn the juvenile court’s decision only when that decision is “against the clear weight of the evidence.” Id. (cleaned up). A decision is against the clear weight of the evidence when the court “either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” See In re B.R., 2007 UT 82, ¶ 12. Indeed, “an appellate court must be capable of discriminating between discomfort over a trial court’s findings of fact—which it must tolerate—and those that require a court’s intercession. It must forebear disturbing the ‘close call.’” In re Z.D., 2006 UT 54, ¶ 33, 147 P.3d 401 (cleaned up).

ANALYSIS

¶16 Utah law recognizes that “the right of a fit, competent parent to raise the parent’s child without undue government interference is a fundamental liberty interest . . . and is a fundamental public policy of this state.” In re Adoption of K.A.S., 2016 UT 55, ¶ 25, 390 P.3d 278 (cleaned up); see also Utah Code Ann. § 62A-4a-201(1)(c) (LexisNexis Supp. 2020).[3] Indeed, there is a “strong . . . presumption that it is in a child’s best interests to be in the custody of his or her natural parent.” In re J.M.V., 958 P.2d 943, 947 (Utah Ct. App. 1998). But, “parental rights are not absolute. A parent’s rights must be balanced against the state’s important interest in protecting children from harm.” In re J.A., 2018 UT App 29, ¶ 44, 424 P.3d 913 (cleaned up).

¶17 In this case, the child was adjudicated dependent as to the father in March 2018, shortly after the initial shelter hearing that placed the child in DCFS custody. Utah Code Ann. § 78A-6­105(14) (LexisNexis Supp. 2020). A determination of dependency rebuts “the presumption that the child is best served by being in the parent’s custody.” In re J.M.V., 958 P.2d at 948. But even though the parental presumption does not apply, the petitioner—in this case, the State—always has the burden to “establish the facts” justifying termination by “clear and convincing evidence.” See Utah Code Ann. § 78A-6-506(3) (LexisNexis 2018).

¶18 “To terminate parental rights, a juvenile court must make two separate findings.” In re C.T., 2018 UT App 233, ¶ 12, 438 P.3d 100 (cleaned up). First, the “court must find by clear and convincing evidence that there is at least one statutory ground for termination.” Id. (cleaned up). Second, “the court must assess what is in the child’s best interest” and determine “whether termination is strictly necessary to promote the child’s welfare and best interest.” In re B.T.B., 2020 UT 60, ¶ 76, 472 P.3d 827.

¶19 The father’s arguments on appeal are limited to challenging the first step in the juvenile court’s analysis— whether a statutory ground for termination was established by clear and convincing evidence. Where the juvenile court finds multiple grounds for termination, “we will affirm when we are able to sustain one of the grounds and need not consider the other grounds relied on by the court.” In re D.M., 2020 UT App 59, ¶ 10, 462 P.3d 1278; see also Utah Code Ann. § 78A-6-507(1) (LexisNexis Supp. 2020) (stating that “the court may terminate all parental rights with respect to the parent if the court finds any one” statutory ground).

¶20 We focus our analysis on the juvenile court’s conclusion that termination of parental rights was justified because the father failed to remedy the circumstances causing the child’s removal under Utah Code subsection 78A-6-507(1)(d) (Supp. 2020).[4] To terminate parental rights on this ground, the court must find,

(i) that the child is being cared for in an out-of-home placement under the supervision of the court or the division;

(ii) that the parent has substantially neglected, willfully refused, or has been unable or unwilling to remedy the circumstances that cause the child to be in an out-of-home placement; and

(iii) that there is a substantial likelihood that the parent will not be capable of exercising proper and effective parental care in the near future.

Utah Code Ann. § 78A-6-507(1)(d).

¶21 In this case, the child was in an out-of-home placement under the supervision of the court and DCFS. The “circumstances” that had caused the child to be placed in foster care included the child’s dependency status and the child’s exposure to domestic violence. The evidence supports the juvenile court’s finding that the father failed to remedy either of those circumstances.[5]

¶22 First, the father was unable to remedy the circumstances that led to the removal of the child based on the dependency adjudication. To remedy those circumstances, the father needed to ensure that he could provide a home and proper care for the child. See id. §§ 78A-6-105(14), -507(1)(d).

¶23 Although the father made progress at maintaining employment and ending his drug use, he bounced back and forth between living with the mother and staying at his father’s house where the conditions were unsuitable for a child. Even if the father assumed until late in the child welfare proceedings that the mother would provide the primary home for the child, the court warned him to be prepared to step up when it appeared doubtful that the child would be reunited with the mother. The court found that the father, having gone through the two previous permanency hearings, was aware that by the final permanency hearing “changes in his life had to be in place” so “that it was safe for [the child] to return to him that day.”

¶24      Despite having eighteen months to achieve such stability, the father did not have appropriate housing or a plan for childcare until three days before the final permanency hearing. Given the father’s track record, the juvenile court was skeptical about the stability of these last-minute living and childcare arrangements. “The weight which a juvenile court must give any present ability evidence is necessarily dependent on the amount of time during which the parent displayed an unwillingness or inability to improve his or her conduct.” In re B.R., 2007 UT 82, ¶ 13, 171 P.3d 435 (cleaned up). Therefore, “if a parent has demonstrated some improvement in parenting ability but not a strong likelihood that the parent can provide a proper home for the child in the very near future,” we cannot “overturn a court’s order terminating parental rights.” Id. (cleaned up). After eighteen months of services, the father had not progressed to even a single overnight visit with the child and had exhausted all possible extensions of time. The court reasonably concluded that the father’s efforts were “far too little far too late.”

¶25      Perhaps more importantly, the father failed to protect the child from exposure to domestic violence by the mother. The mother’s serious assault on the father in the presence of the child was one of the circumstances that led to the child’s removal. Despite a no-contact order, the father continued spending time with the mother, and there was another incident of domestic violence in the presence of the child on Thanksgiving Day. Even after the juvenile court terminated the mother’s parental rights, the father continued bringing her to visits with the child, placing the child in an unsafe environment.

¶26 That evidence supported the court’s finding that the father “and the mother still have an ongoing relationship” and that the father “would likely allow the mother to parent” the child. The court found that “the mother is an unfit parent” and that allowing her to parent was “of serious concern because: (a) the mother stopped participating in services; (b) the mother was the aggressor in the domestic violence incidents; (c) she had positive drug tests on the rare occasions when she chose to test; and (d) the mother voluntarily relinquished her parental rights.” The father’s choice to remain involved with the mother— whether romantically or as a co-parent—placed the child at continued risk.

¶27 The father points to evidence that he received mixed messages from the caseworker about his relationship with the mother and whether she was permitted to join him for visits with the child. But the juvenile court was “in the best position to weigh [this] conflicting testimony, to assess credibility, and from such determinations, render findings of fact.” See In re J.H., 2012 UT App 195, ¶ 2, 283 P.3d 971 (per curiam). We will not overturn the juvenile court’s determinations unless they are against the clear weight of the evidence. See In re Z.D., 2006 UT 54, ¶ 33, 147 P.3d 401. The existence of the no-contact order, as well as the court’s admonitions to the father, support the conclusion that the father had “chosen to remain with the mother” despite the danger posed to the child.

¶28      The father also argues that the juvenile court “abused its discretion in not properly evaluating [him] as a domestic violence survivor.” Specifically, the father suggests that the court employed something of a double standard and analyzed his “reactions to domestic violence perpetrated upon him differently than a female victim.” We disagree. The juvenile court ordered that the father be provided treatment as a victim and faulted the mother for the domestic violence.

¶29 We recognize that “extricating oneself from an abusive relationship can pose an extremely difficult hurdle for victims of domestic abuse,” regardless of gender. See In re L.M., 2019 UT App 174, ¶ 8, 453 P.3d 651 (per curiam). Nevertheless, we have consistently held that a juvenile court faced with a victim parent who does not leave the abusive relationship “may find that the parent has failed to remedy the circumstances that led to a child’s removal.” Id. For example, in In re T.M., we affirmed the termination of a father’s parental rights in part because he had “effectively prioritized his relationship with” his abusive spouse over the protection of his children. 2006 UT App 435, ¶ 9, 147 P.3d 529. In that case, the juvenile court found that “although [the father] completed most of the treatment plan—albeit a significant portion only in the eleventh hour, . . . he [had] been unable to quit his self-described ‘addiction’ to [the mother], and his unwillingness to give up his ongoing relationship with [the mother] . . . endanger[ed] the [c]hildren.” Id. ¶ 9. We agreed, stressing that the father’s “present and ongoing failure to detach himself from this relationship and protect the [c]hildren from exposure to [the mother was] especially significant to the court’s finding of unfitness.” Id. ¶ 19. This court has reached the same conclusion in numerous cases where the mother was the victim of domestic violence. See, e.g., In re L.M., 2019 UT App 174, ¶¶ 3, 6–7, 11 (holding that “the evidence was sufficient to support the juvenile court’s determination that [the mother] had failed to remedy the circumstances leading to [the child’s] removal” where mother did not show up to domestic violence victim therapy appointments, “had not internalized the lessons from the domestic violence therapy,” and brought [the father] to visits after his parental rights had been terminated); In re F.M., 2002 UT App 340, ¶¶ 3, 7–8, 57 P.3d 1130 (affirming termination of mother’s parental rights where evidence showed she had co­dependent relationship with abusive father, had talked about leaving father long enough to regain custody of the children and then going back to him, and then had contact with him just two weeks before the termination trial); In re G.B., 2002 UT App 270, ¶ 17, 53 P.3d 963 (affirming termination of mother’s parental rights where mother claimed she had complied with the service plan, but juvenile court found that she continued to reside in a home with the abusive father, and had no intention of separating from him); In re G.D., 894 P.2d 1278, 1280 (Utah Ct. App. 1995) (affirming termination of mother’s parental rights in part because she “failed to sever all relationships with the father within a reasonable time” and failed to “eliminate the risk of continued abuse”).

¶30 In these cases, juvenile courts are not “unnecessarily drawing negative inferences from a [victim’s] decision to maintain a relationship with the batterer.” In re C.C.W., 2019 UT App 34, ¶ 19 n.4, 440 P.3d 749. Rather, they are focusing on the well-being of the child, whose safety is of primary importance, by assessing whether the parent’s ongoing refusal to sever the relationship poses a continuing threat to the child. Domestic violence has a negative effect on a child even if the child is not the direct recipient of or witness to the violence. See id. ¶ 20, (recognizing that children in these situations learn lessons such as “that the violence toward a loved one is acceptable” and that “coercive power and violence” are “a way to influence loved ones[,]” and noting that such children “fail to grasp the full range of negative consequences for the violent behavior” (cleaned up)). “Utah case law indicates that courts have minimal empathy for parents whose strong emotional ties to their spouses or significant others jeopardize their children’s safety.” In re T.M., 2006 UT App 435, ¶ 20. Here, the juvenile court’s conclusion that the father had not remedied the circumstances that led to removal was supported by clear and convincing evidence that he was unable or unwilling to extricate himself from a relationship with the mother that was toxic and that posed an ongoing threat to the child.

¶31 In concluding that the father failed to remedy the circumstances that led to the child’s removal and would not be capable of exercising proper and effective parental care in the near future, the juvenile court noted that it “truly struggled with this decision.” It “extended reunification services twice, admittedly based on sympathy for [the father’s] circumstances as opposed to strict compliance with the statutes governing extension of services.” But permanency adjudication occurs on a strict timeline because the passage of time seriously affects the child waiting in “legal limbo.” See In re S.L., 1999 UT App 390, ¶ 42, 995 P.2d 17 (explaining that the “overarching purpose” of our child welfare laws “is to provide stability and permanency for abused and neglected children, and to end the ‘legal limbo’ of state custody as quickly as possible” (cleaned up)). And, as the juvenile court found, “[t]he length of time that [the child] has been out of the home relative to his age and the length of time that it took [the father] to . . . become stable had a significant destructive effect on their parent/child relationship.” Viewing the record as a whole, the juvenile court’s finding that the father had not remedied the circumstances that had created the out-of-home placement was not against the clear weight of the evidence.

CONCLUSION

¶32 We conclude that there was sufficient evidence to support the juvenile court’s finding under Utah Code subsection 78A-6­507(1)(d) that the father had failed to remedy the circumstances that caused the child’s out-of-home placement. This is true as to both the child’s dependency status and the risk of exposure to domestic violence. Accordingly, we affirm the juvenile court’s termination of the father’s parental rights.

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

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[1] Senior Judge Kate Appleby sat by special assignment as authorized by law. See generally Utah R. Jud. Admin. 11-201(6).

[2] The mother and the father were not married at the time of the birth, but the father’s paternity was undisputed and officially established prior to the dependency adjudication in March 2018.

[3] Where, as here, amendments to a statute do not affect the issues in this case, we refer to the current version of the statute.

[4] Because we do not address unfitness as an alternative ground for termination, we have no need to reach the father’s argument that the juvenile court “improperly deferred to the caseworker

regarding the ultimate issue of unfitness.”

[5] In applying this provision, the juvenile court did not improperly shift the burden to the father to demonstrate his fitness as a parent. Although the parent has a responsibility to remedy the circumstances that led to removal, Utah Code Ann. § 78A-6-507(1)(d), the State has the burden of proving by clear and convincing evidence that the parent failed to do so, id. § 78A-6-506(3). The court properly applied that burden in this case.

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