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Tag: § 78A-6-507

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

2022 UT 12 

IN THE SUPREME COURT OF THE STATE OF UTAH 

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

J.L. and J.A.,
Appellants, 

STATE OF UTAH,
Appellee. 

No. 20200271 

Heard September 16, 2021
Filed February 24, 2022 

On Certification from the Court of Appeals 

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

Attorneys:1  

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

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

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

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

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

ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court: 

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

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

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

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

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

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

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

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

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

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

I 

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

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

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

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

II 

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

A 

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

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

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

1 

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

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

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

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

2 

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

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

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

B 

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

III 

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

A 

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

B 

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

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

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

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

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

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

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

IV 

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

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

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2019 UT App 204 – In re H.F. incorrect analysis terminating parental rights

2019 UT App 204 – THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF H.F., A PERSON UNDER EIGHTEEN YEARS OF AGE.
J.F., Appellant,
v.
E.F., Appellee.

Opinion
No. 20180348-CA
Filed December 12, 2019

Third District Juvenile Court, Salt Lake Department
The Honorable Julie V. Lund
No. 1100472

Scott L. Wiggins and Lisa Lokken, Attorneys for Appellant
Joshua P. Eldredge, Attorney for Appellee
Martha Pierce, Guardian ad Litem

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

CHRISTIANSEN FORSTER, Judge:

¶1           J.F. (Mother) appeals from the juvenile court’s termination of her parental rights to H.F. (Child). We reverse and remand for further proceedings.

BACKGROUND

¶2           Child was born in December 2012. Soon after Child’s birth, Mother discovered that her husband, E.F. (Father), had been using drugs. Suffering from postpartum depression, Mother also began using drugs with Father as a means of self-medicating.

¶3           In March 2014, the Division of Child and Family Services (DCFS) removed Child from Mother and Father’s home as a result of their drug use. Upon removal, DCFS placed Child with Mother’s parents (Grandparents). During this time, Grandparents facilitated visitation between Child and Father, as well as Father’s extended family.

¶4           Soon after Child was removed from the parents’ home, Mother began a relationship with “a really bad guy.” She left Utah with him, and they began committing crimes together. Eventually, the pair were arrested, convicted of multiple crimes, and incarcerated.

¶5           Conversely, Father began participating in drug treatment in June 2014. After completing treatment, he became involved in various peer support groups to help others with drug addiction and even obtained a full-time job as a peer recovery coach for a nonprofit addiction-recovery agency. In March 2015, Father filed for divorce from Mother and was granted a default divorce awarding him full legal and physical custody of Child. In May 2015, upon the State’s motion, the juvenile court terminated its jurisdiction and DCFS involvement. After Father regained custody of Child, Grandparents continued to provide regular daycare for Child.

¶6           In July 2016, Father moved the juvenile court to terminate Mother’s parental rights. Father was engaged to be married, and his fiancée (Fiancée) wanted to adopt Child, but they had not yet set a wedding date and were not yet living together.[1] Grandparents “had a heated conversation with” Father about his termination petition, and subsequently, he put Child in full-time daycare and did not permit Grandparents to see Child as often.

¶7           At Mother’s termination trial in December 2017, her former criminal attorney expressed his belief that Mother’s criminal actions had been “very much influenced by” her co­defendant but that she “was a model defendant”; continually showed concern for her family and a desire to take care of her children;[2] had come to understand, through participation in counseling, her responsibilities and the detrimental effects of her co-dependent relationship with her co-defendant; and ultimately told the truth about the criminal incidents even though her co­defendant was damaged by her admissions. Mother was still incarcerated at the time of the termination trial but was due to be released in April 2019. She had been participating in a voluntary drug-treatment program. She testified that prior to Child’s removal, she was his “sole care provider.” She testified that she has a bond with Child, that she has had regular telephone and video calls with him since losing custody and sends him letters, that Child had expressed his desire to be reunited with Mother, and that she wants to have “visitation as much as possible” and to “be in [Child’s] life as much as [she] can.” She testified that she regrets her past decisions and their effect on her children, but she also could not rule out the possibility of a relationship with her co-defendant when he is released from prison in eight or nine years.

¶8        Father testified that he was willing to support a continuing relationship between Child and Mother following termination of her rights so long as it was “safe” for Child. Although Father did not discourage Child’s contact with Mother, he did not directly facilitate Mother and Child’s contact; rather, this contact took place when Child visited Grandparents. Both Father and Fiancée testified that Child has a very good relationship with Fiancée, that she treats him like her own child, and that Child sees her as his mom. Father testified that he believed Child’s relationship with Mother’s family was “beneficial.” He claimed that Child’s relationship with Mother’s family would not change if Mother’s rights were terminated. He admitted that he “could make a better effort in . . . communicating to set” up time between Child and Mother’s extended family but explained that he had felt a need to set “boundaries” because the termination petition had “put a strain” on his relationship with Mother’s family.

¶9        Grandparents expressed fear that termination would “have a very negative impact on [their] relationship with [Child]” and that Father “would move on” and “find a way to take [Child] away from” Grandparents. Mother’s brother, who also had a close relationship with Father, expressed his belief that Father had become uninterested in Mother’s side of the family and that Father would not let Mother’s family see Child anymore if Mother’s rights were terminated. Another of Mother’s brothers likewise testified that the family’s contact with Child had been less frequent during the preceding year and that he believed Father would cut off contact between Child and Mother’s family if the court terminated Mother’s rights.

¶10 Following trial, the juvenile court found two grounds for termination: (1) that Mother was an unfit parent because she was unable to care for Child as a result of her incarceration and (2) that she had neglected child through her habitual and excessive use of controlled substances. See Utah Code Ann. § 78A-6-507(1)(b), (c) (LexisNexis 2018); id. § 78A-6-508(2)(c), (e) (Supp. 2019). The court further found that termination was in Child’s best interest.

¶11 In reaching its conclusion regarding Child’s best interest, the juvenile court limited its analysis to three factors—Child’s “bond with his caregivers,” his “need for permanence and stability,” and “the potential risk of harm if returned to [Mother’s] care.” The court found that there was not an intact parental relationship between Mother and Child because she had not acted as his caregiver for an extended period of time. It observed that although Child recognizes that Mother is his mom, he has developed a mother–child bond with Fiancée as well. The court also found that Fiancée intended “to adopt [Child] should he be legally free.” The court concluded that “[t]hese facts support the need for permanence and stability and that [Child] does have a bond with his caregivers.” The court further found that there was “a potential risk of harm to” Child from Mother because she could not rule out the possibility of a future relationship with her co-defendant, who had been described as a “really bad guy.” Finally, the court found that termination of Mother’s rights was “strictly necessary for [Child] to achieve permanency and stability.” Based on these findings, the court determined that it was in Child’s best interest that Mother’s parental rights be terminated. Mother now appeals.

ISSUE AND STANDARD OF REVIEW

¶12 Mother argues that the juvenile court exceeded its discretion in terminating her parental rights. “The ultimate decision about whether to terminate a parent’s rights presents a mixed question of law and fact.” In re B.T.B., 2018 UT App 157, ¶ 8, 436 P.3d 206 (quotation simplified), cert. granted, 440 P.3d 692 (Utah 2019). We review the court’s factual findings for clear error and its legal conclusions for correctness, “affording the court some discretion in applying the law to the facts.” Id. (quotation simplified). Nevertheless, “the proper interpretation and application of a statute is a question of law which we review for correctness.” In re A.M., 2009 UT App 118, ¶ 6, 208 P.3d 1058 (quotation simplified).

ANALYSIS

¶13 In assessing whether termination of parental rights is appropriate, a court must employ a “two-part test.” In re B.T.B., 2018 UT App 157, ¶ 13, 436 P.3d 206, cert. granted, 440 P.3d 692 (Utah 2019). “First, a trial court must find that one or more of the statutory grounds for termination are present,” and second, “a trial court must find that termination of the parent’s rights is in the best interests of the child.” Id. (quotation simplified). Mother does not contest the juvenile court’s determination that grounds existed to support termination, but she maintains that termination was not in Child’s best interest and that the court did not adequately consider all factors relevant to that determination.

¶14 “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.” Id. ¶ 47; see also In re G.J.C, 2016 UT App 147, ¶ 24, 379 P.3d 58 (“Determining a child’s best interest in termination of parental rights proceedings is a subjective assessment based on the totality of the circumstances.”). Utah courts have identified numerous factors that may be relevant to this determination. For example, a court may consider “the physical, mental, or emotional condition and needs of the child”; “the effort the parent has made to adjust their circumstances, conduct, or conditions to make restoring the parent–child relationship in the child’s best interest”; “the child’s bond with caregivers”; the child’s “need for permanency and stability”; and “the potential risk of harm if returned to the parents’ care.” See In re G.J.C., 2016 UT App 147, ¶ 24 (quotation simplified). It may consider the parent’s “demeanor,” “attitude toward his or her child,” and “attitude in fulfilling parental obligations,” see In re T.E., 2011 UT 51, ¶ 44, 266 P.3d 739, and it may weigh the benefits of the child continuing a relationship with an unfit parent even where reunification is not an option, examine the child’s prospects for adoption, and even consider the child’s preferences in some circumstances, In re D.R.A., 2011 UT App 397, ¶¶ 19, 21, 266 P.3d 844; see also In re B.T.B., 2018 UT App 157, ¶ 56. Moreover, as part of the best interest analysis, Utah law requires courts to “analyze whether termination of a child’s parent’s rights is ‘strictly necessary,’” that is, the court must “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., 2018 UT App 157, ¶¶ 50, 55; see also Utah Code Ann. § 78A-6-507(1) (LexisNexis 2018) (“Subject to the protections and requirements of Section 78A-6-503, and if the court finds strictly necessary, the court may terminate all parental rights with respect to a parent if the court finds any one of the following [statutory factors] . . . .” (emphasis added)).

¶15 In conducting its best interest analysis, the juvenile court did not take the holistic approach that has been prescribed by this court. Rather than examining the totality of all circumstances affecting Child’s best interest, the court erroneously interpreted In re G.J.C., 2016 UT App 147, 379 P.3d 58, as articulating a best interest test composed of only three specific factors: (1) “bond with caregivers,” (2) “need for permanence and stability,” and (3) “the potential risk of harm if returned to the parent’s care.” See id. ¶ 24. Further, the court’s finding that termination was “strictly necessary” was conclusory and did not include an examination of feasible alternatives to termination, as required by In re B.T.B., 2018 UT App 157, 436 P.3d 206.[3]

¶16 The court’s reliance on only the three specific factors gleaned from In re G.J.C. unduly narrowed the “broad,” “holistic” best interest test, see In re B.T.B., 2018 UT App 157, ¶ 47, and its order did not accurately represent the direction given by this court in In re G.J.C.[4] The three factors identified in In re G.J.C. were not given as a definitive list of factors; rather the court stated that those three factors were “proper” factors to consider “in the context of a best-interest determination.” 2016 UT App 147, ¶ 24. Indeed, the court explicitly instructed that a best interest determination must be “based on the totality of the circumstances.” Id. This court reaffirmed and elaborated on this “holistic” approach in In re B.T.B., when it instructed “courts to examine all of the relevant facts and circumstances surrounding the child’s situation” and, in particular, “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 order to satisfy the legislature’s requirement that termination be limited to circumstances where it is “strictly necessary.” 2018 UT App 157, ¶¶ 47, 54–55.

¶17 Because of the court’s narrow focus on only three factors pertaining to the best interest analysis, its findings do not reveal whether the court considered a number of additional factors relevant to determining if termination of Mother’s rights was in Child’s best interest, including the fact that Child’s prospects for adoption by Fiancée were speculative, Child’s bond with Mother and any benefits of him continuing a relationship with Mother, and the effect of termination on Child’s relationship with his extended family, including his half-sister.[5] Further, while the court’s analysis emphasized Child’s need for stability, it is unclear how terminating Mother’s parental rights would achieve that goal. Child was not in DCFS custody or a short-term placement with a foster family with an unsettled future. Rather, Father had permanent sole legal and physical custody of Child. Child would continue to be raised primarily by Father and Fiancée, regardless of whether Mother’s parental rights were terminated. And while termination would free Child for adoption by Fiancée, Fiancée was not in an immediate position to adopt Child, and it was not certain that she would ever be in such a position, as she and Father were not actually married. Even the danger anticipated by the juvenile court if Mother eventually resumed her relationship with her co-defendant was mostly speculative, as the co-defendant would not be released from prison for many years. See In re D.R.A., 2011 UT App 397, ¶ 21 (determining that the State had failed to establish that termination was in a child’s best interest in part because “the benefits of severing” the parent–child relationship were “too speculative”). Finally, the court’s determination that termination was strictly necessary was not supported by an appropriate exploration of feasible alternatives to termination. See In re B.T.B., 2018 UT App 157, ¶ 55. Therefore, the juvenile court’s findings do not support its determination that termination was in Child’s best interest.

CONCLUSION

¶18 Because the juvenile court did not employ the correct holistic analysis in assessing whether termination of Mother’s parental rights was in Child’s best interest and its findings do not support such a determination, we vacate the court’s order terminating Mother’s parental rights and remand for further proceedings consistent with this opinion.[6]

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

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[1] Utah law requires a prospective adoptive stepparent to be married to the child’s custodial parent and to have lived with the custodial parent and the stepchild for at least one year prior to entry of the final decree of adoption. Utah Code Ann. § 78B-6¬ 117(2)(a) (LexisNexis Supp. 2019); id. § 78B-6-136.5(2)(a) (2018). Thus, as of the termination trial, Fiancée was at least one year away from being able to adopt Child.

[2] Mother has another child who was not included in the termination proceedings.

[3] Father argues that the juvenile court was not required to engage in the “strictly necessary” analysis prescribed by In re B.T.B. because that case was decided after the court issued its oral ruling in this case. However, Father makes no effort to explain why we should not apply this analysis. The “strictly necessary” language has been part of the statute since 2012, Act of March 7, 2012, ch. 281, § 6, 2012 Utah Laws 1331, 1334; In re B.T.B. merely interpreted that statutory language. And upon interpreting the language, the In re B.T.B. court sent that case back to the trial court for reconsideration: “Because we clarify and partially reformulate the test for termination of parental rights, we remand this case to the juvenile court for reconsideration in light of this opinion.” 2018 UT App 157, ¶ 2, 436 P.3d 206, cert. granted, 440 P.3d 692 (Utah 2019). Father also fails to acknowledge that the juvenile court’s final written order was actually signed one month after In re B.T.B. was issued. We therefore reject Father’s assertion that the court’s failure to engage in a more thorough “strictly necessary” analysis should be ignored on appeal.

[4] In re G.J.C. has limited utility in any event because it employed the now-disavowed principle that “where grounds for termination are established, the conclusion that termination will be in a child’s best interest follows almost automatically.” 2016 UT App 147, ¶ 25, 379 P.3d 58 (quotation simplified); see also In re B.T.B., 2018 UT App 157, ¶¶ 22–44 (disavowing the “almost automatically” line of cases).

[5] Our analysis should not be construed as prohibiting courts from focusing on those factors that it finds to be most probative in a particular case; not every factor will be relevant in every case, and even where evidence of a particular factor is present, a court may reasonably discount the factor and decline to discuss it in detail in its findings. The court’s ruling in this case is problematic not because it focused on limited relevant factors but because it misconstrued the best interest test as being limited to those factors and because it did not examine the feasibility of less-drastic alternatives to termination.

[6] Our decision should not be read as dictating any particular result on remand. Indeed, any number of circumstances may have changed since trial, and the court should take such changes into account in reconsidering its decision. On remand, the court should expand its analysis of best interest to consider the totality of the circumstances, examine the feasibility of alternatives to termination, supplement its findings, and assess whether termination is in Child’s best interest in light of any such supplemental findings.

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