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Tag: best interest of the child

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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In re Adoption of M.A. – 2024 UT 6 – petition to unseal adoption records – good cause

In re Adoption of M.A. – 2024 UT 6

This opinion is subject to revision before final publication in the Pacific Reporter

2024 UT 6 IN THE SUPREME COURT OF THE STATE OF UTAH

In the matter of the adoption of M.A.

MARIANNE TYSON,  Appellant.

No. 20221097

Heard November 8, 2023

Filed February 22, 2024

On Certification from the Court of Appeals

Third District, Salt Lake County

The Honorable Laura S. Scott No. 223902369

Attorney: David Pedrazas, Millcreek, for appellant

ASSOCIATE CHIEF JUSTICE PEARCE authored the opinion of the

Court, in which CHIEF JUSTICE DURRANT, JUSTICE PETERSEN,

JUSTICE HAGEN, and JUSTICE POHLMAN joined.

ASSOCIATE CHIEF JUSTICE PEARCE, opinion of the Court:

INTRODUCTION

¶1 Marianne Tyson wants to see the court records that memorialized her 1978 adoption.[1] Tyson does not know who her birth parents are but hopes to learn “health, genetic, or social information” about them to inform her doctors about any medical predispositions she may have.

¶2 The Utah Legislature has made a number of policy choices concerning adoption records. “An adoption document and any other documents filed in connection with a petition for adoption are sealed” and closed from public view for a century following the adoption. UTAH CODE § 78B-6-141(2), (3)(e). The Legislature has also decided that those sealed adoption records can be inspected or copied when a petitioner has shown “good cause.” See id. § 78B-6-­141(3)(c). The Legislature has not, however, defined good cause. This court has implemented the Legislature’s “good cause” directive through Utah Rule of Civil Procedure 107(d). That rule instructs a court to determine “whether the petitioner has shown good cause and whether the reasons for disclosure outweigh the reasons for non-disclosure.” UTAH R. CIV. P. 107(d).

¶3 The district court denied Tyson’s petition to examine her adoption records. The court reasoned that good cause “require[d] something more than a desire to obtain health or genetic or social information unrelated to a specific medical condition of [Tyson]” and that to require less would “severely undermine[]” the “Legislature’s policy determination that adoption records should be sealed for 100 years.”

¶4 Tyson appeals, arguing in part that the district court misinterpreted the statute. We agree and remand to permit the district court to reassess Tyson’s petition under the correct standard.

BACKGROUND

¶5 Tyson was less than a year old when she was adopted in 1978. Some four decades later, she petitioned the district court to unseal her adoption file to discover “health, genetic, or social information” about her birth parents. Before her petition, Tyson had requested records from Utah’s voluntary adoption registry, which could not find a parental match.[2] In her petition, Tyson claimed that her doctors had requested family medical history regarding “menopause, high blood pressure and/or stroke” and that she could not provide the history because of her lack of access to her birth parents’ records. Tyson argued that her lack of family medical history was sufficient good cause to unseal her record under section 78B-6-141(3)(c). With respect to rule 107’s balancing requirement, she contended that her desire to understand her family medical history forty-four years after her adoption outweighed any interest in keeping the record sealed from her view.

¶6 Before the district court, Tyson admitted she was not aware that she suffered from any genetic condition for which it would be beneficial to have a better understanding of her family’s medical history. The court asked for additional briefing on the question of how it should interpret good cause. The court noted that “as I interpret the statute correctly or incorrectly, good cause is something more than simply the adult adoptee’s desire to have a general understanding of health or background or ethnicity or who the parents are.”

¶7 At the next hearing, Tyson continued to argue that her right to know her birth parents and their respective medical histories outweighed the birth parents’ privacy interests. The district court denied Tyson’s petition. It recognized that “good cause” is not defined in the statute nor in rule 107. The court also noted that there was no controlling precedent to provide a definition. The court nonetheless concluded that good cause “require[d] something more than a desire to obtain health or genetic or social information unrelated to a specific medical condition of [a] [p]etitioner.” The court reasoned that to require less would “severely undermine[]” the “Legislature’s policy determination that adoption records should be sealed for 100 years. ”

¶8 The district court acknowledged that Tyson correctly asserted that “[i]t is the intent and desire of the Legislature that in every adoption the best [interest] of the child should govern and be of foremost concern in the court’s determination.” (First referencing UTAH CODE § 78B-6-102; and then citing In re Adoption of B.B., 2017 UT 59, ¶ 35, 417 P.3d 1.) But the court also noted that the Legislature has decided that an unmarried mother is entitled to privacy regarding her pregnancy and adoption plan and that it protected this right through the one-hundred-year seal and the good cause requirement for unsealing. (Citing UTAH CODE § 78B-6­-102(5)(b), (7).) The court refused to use the best interest of the child standard for its inquiry, instead adhering to the good cause standard it had outlined.

¶9 The district court next conducted the balancing that rule 107 contemplates and determined that Tyson’s proffered reasons for unsealing her adoption records did not outweigh her birth mother’s privacy interests. The court found this was especially true “given the confidentiality that the statute afforded [the birth mother] when she made the decision to place [Tyson] for adoption over 40 years ago.” The court also noted that “in the absence of good cause, the court is required to guard the confidentiality of adoption records consistent with the Utah Legislature’s policy that such records be sealed.” In accordance with this analysis, the court determined that Tyson was not entitled to obtain the requested records and denied her petition.

STANDARD OF REVIEW

¶10 The Legislature has given district courts discretion to decide if good cause exists to unseal adoption records. We review that decision for an abuse of that discretion. But “[w]hen district courts have discretion to weigh factors[] [or] balance competing interests, . . . those discretionary determinations must rest upon sound legal principles.” State v. Boyden, 2019 UT 11, ¶ 21, 441 P.3d 737. A “[m]isapplication of the law constitutes an abuse of discretion.” Id. ¶ 19. Thus, “when a legal conclusion is embedded in a district court’s discretionary determination, we peel back the abuse of discretion standard and look to make sure that the court applied the correct law.” Id. ¶ 21. We review a lower court’s statutory interpretation for correctness. Scott v. Benson, 2023 UT 4, ¶ 25, 529 P.3d 319.

ANALYSIS

¶11 Tyson raises three arguments on appeal. She first claims that the best interest of the child is the overriding consideration in all adoption cases. And therefore, Tyson contends, the district court abused its discretion when it failed to consider whether the unsealing of her adoption records was in her best interest. Tyson next argues that the district court abused its discretion when it concluded that she was not entitled to obtain the records under Utah Code section 78B-6-141(3)(c). Finally, she contends that the district court abused its discretion when it held that the interest in non-disclosure outweighed Tyson’s justifications to unseal the records under Utah Rule of Civil Procedure 107.[3]

I. THE GOOD CAUSE STANDARD, NOT THE BEST INTEREST OF THE CHILD STANDARD, APPLIES TO PETITIONS TO UNSEAL ADOPTION RECORDS

¶12 Tyson first asserts that the district court erred because it failed to afford primacy to the “child’s best interest” in its analysis. Before the district court, Tyson argued that the Legislature has recognized that “in every adoption the best interest of the child should govern” and that standard should apply to her petition. (Quoting UTAH CODE § 78B-6-102(1).) The court refused to apply that standard and instead analyzed Tyson’s petition using what it understood to be the good cause standard found in Utah Code section 78B-6-141(3)(c).

¶13 Tyson argues that as an adult who was adopted as a minor, she maintains the protections that the law affords to adopted children.[4] Tyson advocates that the Legislature’s mandate—that “in every adoption the best interest of the child should govern”— applies to all proceedings related to a child’s adoption, regardless of when the proceedings occur. Tyson further argues that because “the best interests of the child are paramount[,] . . . [w]hen the interests of a child and an adult are in conflict, the conflict must be resolved in favor of the child.” (Citing In re Adoption of B.B., 2017 UT 59, ¶ 35 n.14, 417 P.3d 1.) Tyson contends we should categorically consider her interest, “as the adult adoptee, over the interest of her birth parents.”

¶14 Even assuming, without deciding, that the child’s best interest standard would otherwise apply to this proceeding, a basic canon of statutory interpretation defeats Tyson’s argument. “When we interpret a statute, we start with the plain language of the provision, reading it in harmony with other statutes in the same chapter and related chapters.” Buck v. Utah State Tax Comm’n, 2022 UT 11, ¶ 27, 506 P.3d 584 (cleaned up). “And where there is an inconsistency between related statutory provisions, the specific provision controls over the general.” Latham v. Off. of Recovery Servs., 2019 UT 51, ¶ 35, 448 P.3d 1241.

¶15 Here, Tyson wants us to promote the general over the specific. Section 78B-6-102(1) speaks about the “intent and desire of the Legislature” generally regarding adoptions, in that “in every adoption the best interest of the child should govern.” Section 78B­6-141(3)(c) speaks directly to the issue presented here—what a petitioner must show to unseal adoption records. We presume that the Legislature intended the more specific provision to control over the general statement. Therefore, the district court did not err when it applied the good cause standard instead of examining what was in Tyson’s best interest.

II. THE DISTRICT COURT ERRED WHEN IT RELIED ON THE LEGISLATURE’S DECISION TO SEAL ADOPTION RECORDS FOR ONE HUNDRED YEARS TO DERIVE THE MEANING OF “GOOD CAUSE”

¶16 The district court concluded that a desire to obtain health information “unrelated to a specific medical condition” was categorically insufficient to make a good cause showing under section 78B-6-141(3)(c). The court relied on what it perceived as the Legislature’s strong emphasis on privacy in adoption statutes to reach that conclusion. Tyson’s desire to provide family medical history to her doctors regarding “menopause, high blood pressure and/or stroke” did not, in the court’s eyes, constitute good cause to unseal her adoption records.

¶17 Tyson challenges the district court’s definition of good cause. She argues that the privacy concerns the Legislature addresses lose their potency over time. Tyson claims her birth mother has enjoyed over forty years of privacy and that affording her further confidentiality cannot outweigh Tyson’s desire to know her family medical history. Specifically, Tyson states that the only reason the Legislature protects a birth mother’s privacy is to assure “the permanence of an adoptive placement.” (Quoting UTAH CODE § 78B-6-102(5)(b).) Tyson argues that “once the Adoptee is an adult, there is no other interest in protecting the privacy of the mother and/or adoptee” because permanence has been achieved. In other words, “once the adoptee has become an adult, the legislative intent has been met and satisfied.” So, according to Tyson, “[t]he interest of Adult Adoptee[s] [like Tyson] should outweigh whatever interest the [S]tate has in protecting . . . [the] privacy of the mother from an Adult Adoptee.”

¶18 Utah Code section 78B-6-141(3)(c) states that an adoption petition and all other documents filed in connection with a petition for adoption “may only be open to inspection and copying . . . upon order of the court expressly permitting inspection or copying, after good cause has been shown.” When it applied this provision to Tyson’s petition, the district court stated that good cause required Tyson to show “something more than a desire to obtain health or genetic or social information unrelated to a specific medical condition.” The court further reasoned that “if this was all that was required to show good cause, the Utah Legislature’s policy determination that adoption records should be sealed for 100 years would be severely undermined.” In essence, the court concluded that a desire to see one’s medical record unrelated to a specific medical condition could not constitute good cause as a matter of law because it would weaken the privacy protections the statute affords to birth parents.

¶19 The Legislature did not define good cause in the context of section 78B-6-141(3)(c). This stands in contrast to other statutory provisions where the Legislature makes clear what it intends good cause to mean. For example, in Utah Code section 32B-14-102(3), the Legislature tells us that good cause equates to “the material failure by a supplier or a wholesaler to comply with an essential, reasonable, and lawful requirement imposed by a distributorship agreement if the failure occurs after the supplier or wholesaler acting in good faith provides notice of deficiency and an opportunity to correct.”

¶20 At times, the Legislature has granted courts broad discretion by not defining good cause, only to add a definition after it sees how the courts have applied the standard. We noted in State v. Ruiz that, under a prior version of the plea withdrawal statute, judges “had broad discretion to determine the scope of circumstances that constituted ‘good cause’ and warranted withdrawal of a plea.” 2012 UT 29, ¶ 31, 282 P.3d 998. But we also noted that the Legislature had amended the statute so that “judges may now grant a motion to withdraw only when they determine that a defendant’s plea was not knowingly and voluntarily entered.” Id. ¶ 32.

¶21 When a court deals with an undefined good cause standard, it has discretion to look to the facts and arguments presented to decide the question. Although it deals with a rule and not a statute, Reisbeck v. HCA Health Services of Utah, Inc. is instructive. See 2000 UT 48, ¶¶ 5–15, 2 P.3d 447. The appellant in Reisbeck failed to file her notice of appeal within the thirty days that Utah Rule of Appellate Procedure 4(a) requires and sought a discretionary extension from the trial court for “good cause” under Utah Rule of Appellate Procedure 4(e). Id. ¶¶ 5, 7. We refused to “establish any specific criteria for determining good cause” because “the assessment of the justifications offered by a moving party will remain highly fact-intensive, and because any given justification may entail aspects both within and beyond the moving party’s control.” Id. ¶¶ 14–15 (cleaned up). That is, an undefined good cause standard provides courts with discretion to consider the merits of individual cases.

¶22 Here, the district court attempted to breathe a more specific meaning into the phrase “good cause.” Although it is understandable that the court would want more guidance than the statute provides, it interpreted the statute in a fashion that rewrote the law. The district court opined that good cause must mean “something more than a desire to obtain health or genetic or social information unrelated to a specific medical condition of [Tyson].” The court reasoned that to require less would “severely undermine[]” the “Legislature’s policy determination that adoption records should be sealed for 100 years.”

¶23 But the statute already balances the policy determination that records be sealed for one hundred years against a petitioner’s desire to see those records. The Legislature resolved the question of when a petitioner can have access to those records by stating that a petitioner can unseal those records whenever she can show a court that good cause exists to do so. To impose additional requirements—such as more than a general desire to know one’s medical history—is inconsistent with the statute’s language. Stated differently, if the Legislature had wanted to impose a requirement that a petitioner point to something more than wanting to know her medical history, it could have put that in the statute. It did not, and it was error for the court to do so.

III. THE DISTRICT COURT DID NOT CONSIDER THE REASONS FOR DISCLOSURE IN ITS RULE 107 DETERMINATION

¶24 The district court not only concluded that Tyson had failed to establish good cause under section 78B-6-141(3)(c), it also determined that she could not meet the showing Utah Rule of Civil Procedure 107(d) requires.

¶25 Rule 107 provides, in relevant part, that: (i) a petition to open adoption records “shall identify the type of information sought and shall state good cause for access”; (ii) if seeking “health, genetic or social information, the petition shall state why the health history, genetic history or social history of the Bureau of Vital Statistics is insufficient for the purpose“; and (iii) in its resolution of the petition, “[t]he court shall determine whether the petitioner has shown good cause and whether the reasons for disclosure outweigh the reasons for non-disclosure.”[5] UTAH R. CIV. P. 107(b), (d).

¶26 Here, the district court ruled that Tyson’s “reasons for wanting access to the adoption records” did not “outweigh her birth mother’s interest in privacy.” But instead of balancing both interests under rule 107, the court focused solely on the birth mother’s privacy interests. The court did not consider the reasons for disclosure. This is likely because the court had already discounted Tyson’s desire to see her adoption records when it interpreted “good cause.” In other words, once the court determined that Tyson could not show good cause under section 78B-6-141(3)(c), it may have concluded that it had nothing to put on the disclosure side of the scale when the court balanced disclosure against non-disclosure.

¶27 We remand to permit the district court to evaluate Tyson’s petition under a correct interpretation of section 78B-6-141(3)(c) and to conduct a rule 107 balancing that gives weight to both the birth mother’s privacy interests and Tyson’s reasons for wanting to see her adoption records.

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


[1] In juvenile matters, we typically refer to the subject of the case by their initials. Tyson used her name in the district court briefing and in the briefing before this court. We acknowledge the importance of maintaining confidentiality in juvenile cases, but because Tyson is an adult who uses her full name in court documents, we do so as well.

[2] The Utah Adoption Registry is a voluntary, mutual-consent registry that helps adult adoptees born in Utah and their birth parents and blood-related siblings reunite with one another. See UTAH CODE § 78B-6-144.

[3] On appeal, Tyson asserts that “[e]very person has the constitutional and natural right to know their health, genetic or social information” and that by denying her that right and refusing to unseal her adoption records, we are denying her equal protection under the law as guaranteed by the Fourteenth Amendment. But Tyson has failed to offer any authority or legal basis to support that argument. Advancing a successful argument requires more than dangling an interesting soundbite. “A party may not simply point toward a pile of sand and expect the court to build a castle.” Salt Lake City v. Kidd, 2019 UT 4, ¶ 35, 435 P.3d 248. Tyson has inadequately briefed her constitutional argument, and we will leave the question for a case in which it has been fully briefed.

[4] Tyson cites the District of Columbia high court to support her proposition that the legal protections afforded to children should extend to minor adoptees who have become adults. (Citing In re G.D.L., 223 A.3d 100 (D.C. 2020).) That case is not helpful because the District of Columbia’s unsealing statute is significantly different from Utah’s. The D.C. statute provides that adoption records may only be unsealed “when the court is satisfied that the welfare of the child will . . . be promoted or protected.” D.C. CODE § 16-311.

[5] At first blush, Utah Rule of Civil Procedure 107 appears to smear some extra-textual gloss on the statute when it requires a petitioner to state why she cannot get medical information from the Bureau of Vital Statistics, and when it instructs a court to assess whether the “reasons for disclosure outweigh the reasons for non­disclosure.” Tyson does not challenge rule 107 and we will leave that question for another case.

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What are the child custody factors that judges consider?

What are the child custody factors that judges consider when determining what’s in a child’s best interest in custody disputes according to Utah’s family law statutes?

The main factors are found in Utah Code § 30-3-10 (and the main factors of § 30-3-10 itself are highlighted below in red text, but you should read the entire applicable code section for all factors):

30-3-10.  Custody of a child — Custody factors.

(2) In determining any form of custody and parent-time under Subsection (1), the court shall consider the best interest of the child and may consider among other factors the court finds relevant, the following for each parent:

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

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

             (i) physical needs;

             (ii) emotional needs;

             (iii) educational needs;

             (iv) medical needs; and

             (v) any special needs;

      (c) the parent’s capacity and willingness to function as a parent, including:

             (i) parenting skills;

             (ii) co-parenting skills, including:

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

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

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

            (iii) ability to provide personal care rather than surrogate care;

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

     (e) the emotional stability of the parent;

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

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

     (h) the parent’s reasons for having relinquished custody or parent-time in the past;

     (i) duration and depth of desire for custody or parent-time;

     (j) the parent’s religious compatibility with the child;

     (k) the parent’s financial responsibility;

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

     (m) who has been the primary caretaker of the child;

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

     (o) the relative benefit of keeping siblings together;

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

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

     (r) any other factor the court finds relevant.

(3) There is a rebuttable presumption that joint legal custody, as defined in Section 30-3-10.1, is in the best interest of the child, except in cases when there is:

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

     (b) special physical or mental needs of a parent or child, making joint legal custody unreasonable;

     (c) physical distance between the residences of the parents, making joint decision making impractical in certain circumstances; or

     (d) any other factor the court considers relevant including those listed in this section and Section 30-3-10.2.

*****

(6)

     (a) Except as provided in Subsection (6)(b), a court may not discriminate against a parent due to a disability, as defined in Section 57-21-2, in awarding custody or determining whether a substantial change has occurred for the purpose of modifying an award of custody.

     (b) The court may not consider the disability of a parent as a factor in awarding custody or modifying an award of custody based on a determination of a substantial change in circumstances, unless the court makes specific findings that:

         (i) the disability significantly or substantially inhibits the parent’s ability to provide for the physical and emotional needs of the child at issue; and

         (ii) the parent with a disability lacks sufficient human, monetary, or other resources available to supplement the parent’s ability to provide for the physical and emotional needs of the child at issue.

*****

(7) This section does not establish a preference for either parent solely because of the gender of the parent.

(8) This section establishes neither a preference nor a presumption for or against joint physical custody or sole physical custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child.

*****

(10) In considering the past conduct and demonstrated moral standards of each party under Subsection (2)(d) or any other factor a court finds relevant, the court may not:

     (a) consider or treat a parent’s lawful possession or use of cannabis in a medicinal dosage form, a cannabis product in a medicinal dosage form, or a medical cannabis device, in accordance with Title 4, Chapter 41a, Cannabis Production Establishments and PharmaciesTitle 26B, Chapter 4, Part 2, Cannabinoid Research and Medical Cannabis, or Subsection 58-37-3.7(2) or (3) any differently than the court would consider or treat the lawful possession or use of any prescribed controlled substance; or

     (b) discriminate against a parent because of the parent’s status as a:

         (i) cannabis production establishment agent, as that term is defined in Section 4-41a-102;

         (ii) medical cannabis pharmacy agent, as that term is defined in Section 26B-4-201;

         (iii) medical cannabis courier agent, as that term is defined in Section 26B-4-201; or

         (iv) medical cannabis cardholder in accordance with Title 26B, Chapter 4, Part 2, Cannabinoid Research and Medical Cannabis.

Just how does a court consider the child custody factors? The recent case of Lamb v. Lamb (2024 UT App 16) provides a concise explanation:

¶26 Section 30-3-10 states that in “determining any form of custody and parent-time . . . , the court shall consider the best interest of the child and may consider . . . other factors the court finds relevant,” including factors for each parent articulated in the code. Utah Code § 30-3-10(2) (emphasis added). These factors a court may consider are “not on equal footing.” Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491. Instead, “it is within the trial court’s discretion to determine, based on the facts before it and within the confines set by the appellate courts, where a particular factor falls within the spectrum of relative importance and to accord each factor its appropriate weight.” Id. (emphasis added). “And where significant evidence concerning a particular factor is presented to the district court, findings that omit all discussion of that evidence must be deemed inadequate.” Twitchell v. Twitchell, 2022 UT App 49, ¶ 21, 509 P.3d 806. Thus, to “ensure that the trial court’s custody determination, discretionary as it is, is rationally based, it is essential that the court set forth in its findings of fact not only that it finds one parent to be the better person to care for the child, but also the basic facts which show why that ultimate conclusion is justified.” Id. ¶ 24 (cleaned up).

But note that § 30-3-10 does not constitute the only list of factors the court can consider in making its child custody and parent-time award decisions.

Equal physical custody factors

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 30-3-10.7 through 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 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.

Parent-time factors

30-3-32.  Parent-time — Definitions — Considerations for parent-time — Relocation.

(1) As used in Sections 30-3-32 through 30-3-37:

     (a) “Child” means the child of divorcing, separating, or adjudicated parents.

     (b) “Supervised parent-time” means parent-time that requires the noncustodial parent to be accompanied during parent-time by an individual approved by the court.

     (c) “Surrogate care” means care by any individual other than the parent of the child.

     (d) “Uninterrupted time” means parent-time exercised by one parent without interruption at any time by the presence of the other parent.

     (e) “Virtual parent-time” means parent-time facilitated by tools such as telephone, email, instant messaging, video conferencing, and other wired or wireless technologies over the Internet or other communication media, to supplement in-person visits between a noncustodial parent and a child or between a child and the custodial parent when the child is staying with the noncustodial parent.

(2) (a) A court shall consider as primary the safety and well-being of the child and the parent who experiences domestic or family violence.

     (b) Absent a showing by a preponderance of evidence of real harm or substantiated potential harm to the child:

         (i) it is in the best interests of the child of divorcing, divorced, or adjudicated parents to have frequent, meaningful, and continuing access to each parent following separation or divorce;

         (ii) each divorcing, separating, or adjudicated parent is entitled to and responsible for frequent, meaningful, and continuing access with the parent’s child consistent with the child’s best interests; and

         (iii) it is in the best interests of the child to have both parents actively involved in parenting the child.

(3) An order issued by a court pursuant to Title 78B, Chapter 7, Part 6, Cohabitant Abuse Protective Orders, shall be considered evidence of real harm or substantiated potential harm to the child.

(4) If a parent relocates because of an act of domestic violence or family violence by the other parent, the court shall make specific findings and orders with regards to the application of Section 30-3-37.

30-3-33.  Advisory guidelines.

In addition to the parent-time schedules provided in Sections 30-3-35 and 30-3-35.5, the following advisory guidelines are suggested to govern all parent-time arrangements between parents.

(1) Parent-time schedules mutually agreed upon by both parents are preferable to a court-imposed solution.

(2) The parent-time schedule shall be used to maximize the continuity and stability of the child’s life.

(3) Special consideration shall be given by each parent to make the child available to attend family functions including funerals, weddings, family reunions, religious holidays, important ceremonies, and other significant events in the life of the child or in the life of either parent which may inadvertently conflict with the parent-time schedule.

(4) The responsibility for the pick up, delivery, and return of the child shall be determined by the court when the parent-time order is entered, and may be changed at any time a subsequent modification is made to the parent-time order.

(5) If the noncustodial parent will be providing transportation, the custodial parent shall have the child ready for parent-time at the time the child is to be picked up and shall be present at the custodial home or shall make reasonable alternate arrangements to receive the child at the time the child is returned.

(6) If the custodial parent will be transporting the child, the noncustodial parent shall be at the appointed place at the time the noncustodial parent is to receive the child, and have the child ready to be picked up at the appointed time and place, or have made reasonable alternate arrangements for the custodial parent to pick up the child.

(7) Regular school hours may not be interrupted for a school-age child for the exercise of parent-time by either parent.

(8) The court may make alterations in the parent-time schedule to reasonably accommodate the work schedule of both parents and may increase the parent-time allowed to the noncustodial parent but may not diminish the standardized parent-time provided in Sections 30-3-35 and 30-3-35.5.

(9) The court may make alterations in the parent-time schedule to reasonably accommodate the distance between the parties and the expense of exercising parent-time.

(10) Neither parent-time nor child support is to be withheld due to either parent’s failure to comply with a court-ordered parent-time schedule.

(11) The custodial parent shall notify the noncustodial parent within 24 hours of receiving notice of all significant school, social, sports, and community functions in which the child is participating or being honored, and the noncustodial parent shall be entitled to attend and participate fully.

(12) The noncustodial parent shall have access directly to all school reports including preschool and daycare reports and medical records and shall be notified immediately by the custodial parent in the event of a medical emergency.

(13) Each parent shall provide the other with the parent’s current address and telephone number, email address, and other virtual parent-time access information within 24 hours of any change.

(14) Each parent shall permit and encourage, during reasonable hours, reasonable and uncensored communications with the child, in the form of mail privileges and virtual parent-time if the equipment is reasonably available, provided that if the parties cannot agree on whether the equipment is reasonably available, the court shall decide whether the equipment for virtual parent-time is reasonably available, taking into consideration:

     (a) the best interests of the child;

     (b) each parent’s ability to handle any additional expenses for virtual parent-time; and

     (c) any other factors the court considers material.

(15) Parental care shall be presumed to be better care for the child than surrogate care and the court shall encourage the parties to cooperate in allowing the noncustodial parent, if willing and able to transport the children, to provide the child care. Child care arrangements existing during the marriage are preferred as are child care arrangements with nominal or no charge.

(16) Each parent shall provide all surrogate care providers with the name, current address, and telephone number of the other parent and shall provide the noncustodial parent with the name, current address, and telephone number of all surrogate care providers unless the court for good cause orders otherwise.

(17) Each parent shall be entitled to an equal division of major religious holidays celebrated by the parents, and the parent who celebrates a religious holiday that the other parent does not celebrate shall have the right to be together with the child on the religious holiday.

(18) If the child is on a different parent-time schedule than a sibling, based on Sections 30-3-35 and 30-3-35.5, the parents should consider if an upward deviation for parent-time with all the minor children so that parent-time is uniform between school aged and non-school aged children, is appropriate.

(19) When one or both parents are servicemembers or contemplating joining a uniformed service, the parents should resolve issues of custodial responsibility in the event of deployment as soon as practicable through reaching a voluntary agreement pursuant to Section 78B-20-201 or through court order obtained pursuant to Section 30-3-10. Servicemembers shall ensure their family care plan reflects orders and agreements entered and filed pursuant to Title 78B, Chapter 20, Uniform Deployed Parents Custody, Parent-time, and Visitation Act.

30-3-34.  Parent-time — Best interests — Rebuttable presumption.

(1) If the parties are unable to agree on a parent-time schedule, the court may:

     (a) establish a parent-time schedule; or

     (b) order a parent-time schedule described in Section 30-3-3530-3-35.130-3-35.2, or 30-3-35.5.

(2) The advisory guidelines as provided in Section 30-3-33 and the parent-time schedule as provided in Sections 30-3-35 and 30-3-35.5 shall be considered the minimum parent-time to which the noncustodial parent and the child shall be entitled.

(3) A court may consider the following when ordering a parent-time schedule:

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

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

     (c) the distance between the residency of the child and the noncustodial parent;

     (d) a credible allegation of child abuse has been made;

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

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

     (g) the preference of the child if the court determines the child is of sufficient maturity;

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

     (i) shared interests between the child and the noncustodial parent;

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

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

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

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

     (n) the parent-time schedule of siblings;

     (o) the lack of reasonable alternatives to the needs of a nursing child; and

     (p) any other criteria the court determines relevant to the best interests of the child.

(4) The court shall enter the reasons underlying the court’s order for parent-time that:

     (a) incorporates a parent-time schedule provided in Section 30-3-35 or 30-3-35.5; or

     (b) provides more or less parent-time than a parent-time schedule provided in Section 30-3-35 or 30-3-35.5.

(5) A court may not order a parent-time schedule unless the court determines by a preponderance of the evidence that the parent-time schedule is in the best interest of the child.

(6) Once the parent-time schedule has been established, the parties may not alter the schedule except by mutual consent of the parties or a court order.

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

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Is There Any Realistic Way to Prevent Misappropriating Child Support Funds?

This is a subject that comes up frequently. It comes up frequently not because misappropriating child support is a hard problem to mitigate but because the courts don’t have the will to implement effective mitigation measures.

When one of the factors in determining the child support award is essentially “making sure the less affluent parent (the poorer parent) has enough money to afford the costs of the lifestyle to which the child is accustomed,” this question arises: how is it ensured that the money paid by the child support obligor (the one paying support) to the child support obligee (the child support recipient) is spent on funding “the lifestyle to which the child is accustomed”? An associated question is: what is to stop the child support obligee from spending the funds on the obligee herself/himself?

The answer to both questions is fairly easy to implement:

  • Audit the child’s needs (rigorously; and we can define needs as “the lifestyle to which the child is accustomed” for this purpose)
  • Determine the costs of the child’s needs
  • Award the amount of child support paid based upon the child’s needs
  • Require the child support obligee to account for (with objectively verifiable proof) the expenditure of the child support funds paid, so that both the child support obligor and the court (and even the child himself/herself) can verify that the child support funds are not being misappropriated.

Utah even has a statutory provision that gives a court the option of requiring the child support obligee to account for the expenditure of child support funds[1], but in 26 years of practice I have yet to see a court order that the child support obligee account.

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


[1] Utah Code § 78B-12-218.  Accountability of support provided to benefit child — Accounting.

(1) The court or administrative agency which issues the initial or modified order for child support may, upon the petition of the obligor, order prospectively the obligee to furnish an accounting of amounts provided for the child’s benefit to the obligor, including an accounting or receipts.

(2) The court or administrative agency may prescribe the frequency and the form of the accounting which shall include receipts and an accounting.

(3) The obligor may petition for the accounting only if current on all child support that has been ordered.

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Does it not feel weird to anyone that a parent who does not get child custody has to pay child support to the other parent who is enjoying the kids?

I think I know why you think it’s weird. Why have the children live with one parent instead both parents on an equal custody basis? In other words, “I’ll bear the financial costs of taking care of the children when they are with me, and you bear the financial costs of taking care of the children when they are with you.” That makes, sense. But there is more than one way to view this situation. Most jurisdictions in the U.S.A. see it this way:

If the children spend more time in the care and custody of one parent than the other, then that parent will bear greater financial burden in the form of having to pay for at least the food the children eat, the laundry detergent they use in the washing of their clothes, the extra utilities expenses they represent (using more water and electricity than if the parent lived alone) and the soap, shampoo, and toilet paper the children use.

In Utah (where I practice divorce and family law), child support is intended to cover not only these expenses of the children, but their clothing and bedding, school fees, and extracurricular activities too.

This is why most jurisdictions order the parent who exercises less care and custody than the other parent (the noncustodial parent) to pay what is called “child support” to the custodial parent.

But what if the parents share equal physical custody of the children? Does that mean that neither parent will pay child support to the other? Not necessarily.

In Utah, even if the parents were awarded equal custody of the children, one parent can end up still paying child support to the other, if one parent has a higher income than the other. The reason for this is the idea that the children’s lifestyle should be the same regardless of which parent they are residing with at the time. To ensure the parent whose income is lower can afford to provide the same lifestyle for the children as their other parent, many courts (including Utah’s) will still order the richer parent to pay child support to the poorer parent for this purpose.

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

https://www.quora.com/Does-it-not-feel-weird-to-anyone-that-a-parent-who-does-not-get-child-custody-has-to-pay-child-support-to-other-parent-who-is-enjoying-with-kids/answer/Eric-Johnson-311?prompt_topic_bio=1

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What Is the Point of Granting Divorced Parents Joint Custody and Splitting Parenting Time? Isn’t It the Idea That the Children Benefit From Having Two Parents? Isn’t That True Only So Long as Both Parents Are Positive Influences and Not Criminals?

You pose two very good questions, and there are very good answers to each of them.

Question 1) What is the point of granting divorced parents joint custody and splitting parenting time? Isn’t it the idea that the children benefit from having two parents?

Answer: Yes. More specifically, the idea is that the children benefit from having both of their fit* parents involved in their children’s lives as possible.

Question 2) Isn’t that true only so long as both parents are positive influences and not criminals?

Answer: Essentially, yes. The idea is that the children benefit from having both of their fit* parents involved in their children’s lives as possible. No one suggests that a child is inherently benefited by a parent exercising custody of that child if the parent is unfit to exercise custody of the child.

*What does it mean to be a fit parent? Every jurisdiction has different, though similar criteria for defining and evaluating parental fitness. Most concisely stated, a parent is not fit if that parent abuses, neglects, and/or poses a clear danger of such to his/her children.

What are the factors the courts consider in Utah when determining what the custody award will be?

30-3-10.  Custody of a child — Custody factors.

  1. If a married couple having one or more minor children are separated, or the married couple’s marriage is declared void or dissolved, the court shall enter, and has continuing jurisdiction to modify, an order of custody and parent-time.
  2. In determining any form of custody and parent-time under Subsection (1), the court shall consider the best interest of the child and may consider among other factors the court finds relevant, the following for each parent:

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

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

(i)         physical needs;

(ii)        emotional needs;

(iii)       educational needs;

(iv)       medical needs; and

(v)        any special needs;

(c)        the parent’s capacity and willingness to function as a parent, including:

(i)         parenting skills;

(ii)        co-parenting skills, including:

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

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

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

(iii)       ability to provide personal care rather than surrogate care;

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

(e)        the emotional stability of the parent;

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

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

(h)        the parent’s reasons for having relinquished custody or parent-time in the past;

(i)         duration and depth of desire for custody or parent-time;

(j)         the parent’s religious compatibility with the child;

(k)        the parent’s financial responsibility;

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

(m)       who has been the primary caretaker of the child;

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

(o)        the relative benefit of keeping siblings together;

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

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

(r)        any other factor the court finds relevant.

(3)        There is a rebuttable presumption that joint legal custody, as defined in Section 30-3-10.1, is in the best interest of the child, except in cases when there is:

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

(b)        special physical or mental needs of a parent or child, making joint legal custody unreasonable;

(c)        physical distance between the residences of the parents, making joint decision making impractical in certain circumstances; or

(d)       any other factor the court considers relevant including those listed in this section and Section 30-3-10.2.

(4)

(a)        The person who desires joint legal custody shall file a proposed parenting plan in accordance with Sections 30-3-10.8 and 30-3-10.9.

(b)        A presumption for joint legal custody may be rebutted by a showing by a preponderance of the evidence that it is not in the best interest of the child.

(5)

(a)        A child may not be required by either party to testify unless the trier of fact determines that extenuating circumstances exist that would necessitate the testimony of the child be heard and there is no other reasonable method to present the child’s testimony.

(b)

(i)         The court may inquire of the child’s and take into consideration the child’s desires regarding future custody or parent-time schedules, but the expressed desires are not controlling and the court may determine the child’s custody or parent-time otherwise.

(ii)        The desires of a child 14 years old or older shall be given added weight, but is not the single controlling factor.

(c)

(i)         If an interview with a child is conducted by the court pursuant to Subsection (5)(b), the interview shall be conducted by the judge in camera.

(ii)        The prior consent of the parties may be obtained but is not necessary if the court finds that an interview with a child is the only method to ascertain the child’s desires regarding custody.

(6)

(a)        Except as provided in Subsection (6)(b), a court may not discriminate against a parent due to a disability, as defined in Section 57-21-2, in awarding custody or determining whether a substantial change has occurred for the purpose of modifying an award of custody.

(b)        The court may not consider the disability of a parent as a factor in awarding custody or modifying an award of custody based on a determination of a substantial change in circumstances, unless the court makes specific findings that:

(i)         the disability significantly or substantially inhibits the parent’s ability to provide for the physical and emotional needs of the child at issue; and

(ii)        the parent with a disability lacks sufficient human, monetary, or other resources available to supplement the parent’s ability to provide for the physical and emotional needs of the child at issue.

30-3-10.2.  Joint custody order — Factors for court determination — Public assistance.

(1)        The court may order joint legal custody or joint physical custody or both if one or both parents have filed a parenting plan in accordance with Section 30-3-10.8 and the court determines that joint legal custody or joint physical custody or both is in the best interest of the child.

(2)        In determining whether the best interest of a child will be served by ordering joint legal custody or joint physical custody or both, the court shall consider the custody factors in Section 30-3-10 and the following factors:

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

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

(c)        co-parenting skills, including:

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

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

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

(d)       whether both parents participated in raising the child before the divorce;

(e)        the geographical proximity of the homes of the parents;

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

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

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

(i)         any other factor the court finds relevant.

(3)        The determination of the best interest of the child shall be by a preponderance of the evidence.

(4)        The court shall inform both parties that an order for joint physical custody may preclude eligibility for cash assistance provided under Title 35A, Chapter 3, Employment Support Act.

(5)        The court may order that when possible the parties attempt to settle future disputes by a dispute resolution method before seeking enforcement or modification of the terms and conditions of the order of joint legal custody or joint physical custody through litigation, except in emergency situations requiring ex parte orders to protect the child.

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 30-3-10.7 through 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 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.

30-3-32.  Parent-time — Definitions — Considerations for parent-time — Relocation.

(1)        As used in Sections 30-3-32 through 30-3-37:

(a)        “Child” means the child of divorcing, separating, or adjudicated parents.

(b)        “Supervised parent-time” means parent-time that requires the noncustodial parent to be accompanied during parent-time by an individual approved by the court.

(c)        “Surrogate care” means care by any individual other than the parent of the child.

(d)       “Uninterrupted time” means parent-time exercised by one parent without interruption at any time by the presence of the other parent.

(e)        “Virtual parent-time” means parent-time facilitated by tools such as telephone, email, instant messaging, video conferencing, and other wired or wireless technologies over the Internet or other communication media, to supplement in-person visits between a noncustodial parent and a child or between a child and the custodial parent when the child is staying with the noncustodial parent.

(2)

(a)        A court shall consider as primary the safety and well-being of the child and the parent who experiences domestic or family violence.

(b)        Absent a showing by a preponderance of evidence of real harm or substantiated potential harm to the child:

(i)         it is in the best interests of the child of divorcing, divorced, or adjudicated parents to have frequent, meaningful, and continuing access to each parent following separation or divorce;

(ii)        each divorcing, separating, or adjudicated parent is entitled to and responsible for frequent, meaningful, and continuing access with the parent’s child consistent with the child’s best interests; and

(iii)       it is in the best interests of the child to have both parents actively involved in parenting the child.

(3)        An order issued by a court pursuant to Title 78B, Chapter 7, Part 6, Cohabitant Abuse Protective Orders, shall be considered evidence of real harm or substantiated potential harm to the child.

(4)        If a parent relocates because of an act of domestic violence or family violence by the other parent, the court shall make specific findings and orders with regards to the application of Section 30-3-37.

30-3-34.  Parent-time — Best interests — Rebuttable presumption.

(1)        If the parties are unable to agree on a parent-time schedule, the court may:

(a)        establish a parent-time schedule; or

(b)        order a parent-time schedule described in Section 30-3-35, 30-3-35.1, 30-3-35.2, or 30-3-35.5.

(2)        The advisory guidelines as provided in Section 30-3-33 and the parent-time schedule as provided in Sections 30-3-35 and 30-3-35.5 shall be considered the minimum parent-time to which the noncustodial parent and the child shall be entitled.

(3)        A court may consider the following when ordering a parent-time schedule:

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

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

(c)        the distance between the residency of the child and the noncustodial parent;

(d)       a credible allegation of child abuse has been made;

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

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

(g)        the preference of the child if the court determines the child is of sufficient maturity;

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

(i)         shared interests between the child and the noncustodial parent;

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

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

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

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

(n)        the parent-time schedule of siblings;

(o)        the lack of reasonable alternatives to the needs of a nursing child; and

(p)        any other criteria the court determines relevant to the best interests of the child.

(4)        The court shall enter the reasons underlying the court’s order for parent-time that:

(a)        incorporates a parent-time schedule provided in Section 30-3-35 or 30-3-35.5; or

(b)        provides more or less parent-time than a parent-time schedule provided in Section 30-3-35 or 30-3-35.5.

(5)        A court may not order a parent-time schedule unless the court determines by a preponderance of the evidence that the parent-time schedule is in the best interest of the child.

(6)        Once the parent-time schedule has been established, the parties may not alter the schedule except by mutual consent of the parties or a court order.

30-3-34.5.  Supervised parent-time.

(1)        Considering the fundamental liberty interests of parents and children, it is the policy of this state that divorcing parents have unrestricted and unsupervised access to their children. When necessary to protect a child and no less restrictive means is reasonably available however, a court may order supervised parent-time if the court finds evidence that the child would be subject to physical or emotional harm or child abuse, as described in Sections 76-5-109, 76-5-109.2, 76-5-109.3, and 76-5-114, from the noncustodial parent if left unsupervised with the noncustodial parent.

(2)        A court that orders supervised parent-time shall give preference to persons suggested by the parties to supervise, including relatives. If the court finds that the persons suggested by the parties are willing to supervise, and are capable of protecting the children from physical or emotional harm, or child abuse, the court shall authorize the persons to supervise parent-time.

(3)        If the court is unable to authorize any persons to supervise parent-time pursuant to Subsection (2), the court may require that the noncustodial parent seek the services of a professional individual or agency to exercise their supervised parent-time.

(4)        At the time supervised parent-time is imposed, the court shall consider:

(a)        whether the cost of professional or agency services is likely to prevent the noncustodial parent from exercising parent-time; and

(b)        whether the requirement for supervised parent-time should expire after a set period of time.

(5)        The court shall, in its order for supervised parent-time, provide specific goals and expectations for the noncustodial parent to accomplish before unsupervised parent-time may be granted. The court shall schedule one or more follow-up hearings to revisit the issue of supervised parent-time.

(6)        A noncustodial parent may, at any time, petition the court to modify the order for supervised parent-time if the noncustodial parent can demonstrate that the specific goals and expectations set by the court in Subsection (5) have been accomplished.

_______________

For a more detailed discussion of parental fitness factors in other jurisdictions, feel free to read on:

Parental fitness “is in some way tied into the best interest of the child. The jurisprudence variously has interpreted this statutory fitness as physical, economic, mental, or moral fitness[.]” Joint Custody in Louisiana, 43 LALR 85 (September 1982)

Another definition of parental fitness in the context of termination of parental rights is found in Louisiana Statutes, Louisiana Children’s Code, Title XI. Surrender of Parental Rights, Chapter 1. Preliminary Provisions; Definitions, at Art. 1103(5)(Definitions), but it wouldn’t make a bad standard for evaluating parental fitness in a child custody dispute either:

(5) “Parental fitness” means:

(a) That a parent has not abused the child. For purposes of this Subparagraph, abuse means the infliction of physical or mental injury which causes deterioration to the child, sexual abuse, exploitation, or overworking of a child to such an extent that his health or moral or emotional well-being is endangered.

(b) That a parent has consistently offered to provide reasonably necessary food, clothing, appropriate shelter, or treatment for the child. For purposes of this Subparagraph, treatment means medical care or other health services provided in accordance with the tenets of a well- recognized religious method of healing with a reasonable, proven record of success.

(c) That a parent suffers from no medical or emotional illness, mental deficiency, behavior or conduct disorder, severe physical disability, substance abuse, or chemical dependency which makes him unable or unwilling to provide an adequate permanent home for the child at the present time or in the reasonably near future based upon expert opinion or based upon an established pattern of behavior.

(d) Viewed in its entirety, the parent’s past or present conduct, including his criminal convictions, would not pose a risk of substantial harm to the physical, mental, or emotional health of the child.

See also this from Legal Rights of Children (November 2022 Update, Thomas R. Young), Part II. Children and the Family Relationship, Chapter 2. Child Custody. § 2:5. The best interests of the child rule:

The evolution of the best interests approach has focused on the development of a comprehensive list of factors that a court may or must consider in making its determination. As previously illustrated with regard to what the courts in the State of Missouri look for to determining a child’s best interest, the criteria upon which a court may rely in deciding which parent should be awarded custody may include the child’s preference, the bond the child may have with a parent, his or her health (physical and mental), the child’s sex and age,15 and each parent’s fitness to assume custody.[footnote 16]

[16] Hall v. Hall, 571 So. 2d 1176 (Ala. Civ. App. 1990); Stephen v. Stephen, 1997 OK 53, 937 P.2d 92 (Okla. 1997); Irwin v. Schmidt, 236 A.D.2d 401, 653 N.Y.S.2d 627 (2d Dep’t 1997); Issac v. Issac, 2004 WL 2915330 (Ky. Ct. App. 2004); Klausman v. Klausman, 2004-Ohio-3410, 2004 WL 1461356 (Ohio Ct. App. 9th Dist. Summit County 2004); Gress v. Gress, 271 Neb. 122, 710 N.W.2d 318 (2006); Patterson v. Patterson, 207 S.W.3d 179 (Mo. Ct. App. S.D. 2006); Kreps v. Kreps, 2010 SD 12, 778 N.W.2d 835 (S.D. 2010); and Pietrzak v. Schroeder, 2009 SD 1, 759 N.W.2d 734 (S.D. 2009) (when considering parental fitness during an initial child custody determination, a court may consider: (1) mental and physical health; (2) capacity and disposition to provide the child with protection, food, clothing, medical care, and other basic needs; (3) ability to give the child love, affection, guidance, education and to impart the family’s religion or creed; (4) willingness to maturely encourage and provide frequent and meaningful contact between the child and the other parent; (5) commitment to prepare the child for responsible adulthood, as well as to insure that the child experiences a fulfilling childhood; and (6) exemplary modeling so that the child witnesses firsthand what it means to be a good parent, a loving spouse, and a responsible citizen).

Other courts have suggested other criteria: the quality of the home environment and the nature of parental guidance that can be offered, the character and reputation of the parties involved, the ability to provide for the continued emotional and intellectual needs and development of the children, the potentiality of maintaining natural family relationships, the material opportunities affecting the future life of the child,20 and the opportunity for visitation.

Parental fitness can be subdivided into several categories: moral fitness, love and affection of the parent for the child, and past conduct affecting the child’s needs, both physically and mentally as well as financially. When making a custody award, a New York court has said that in determining what is best for the child, the court should review the child’s emotional and intellectual development, the quality of the home environment, parental guidance that is being or could be provided, the stability of the respective homes involved, and the child’s own desires.

Traditionally, courts have taken a moralistic approach to evaluating the fitness of a parent. A parent found to be an adulterer has historically been deemed to be morally unfit by reviewing courts and denied custody of the child as punishment. Courts, in using this approach, arguably never reached the issue of the child’s best interests. Today, however, courts tend to be more concerned with a child’s psychological well-being. Focusing more on the child’s rights and its best interests, rather than those of the parent, courts now give far less consideration to a parent’s conduct if it does not affect his or her relationship with the child. Several states have laws which expressly forbid consideration of parental conduct which does not directly affect the parent’s relationship with the child.

Courts are moving toward a more objective analysis of parental fitness as it affects a child’s well-being. This change in perspective requires that each parent be evaluated in terms of ability and willingness to care for the child, free of gender-based presumptions. For example, in 1982, the Virginia Supreme Court found that it was in the child’s best interests to be in the father’s custody where both parents were fit but where the home environment offered by the father was more conducive to the child’s well-being. In other cases, the maternal presumption has been replaced by a gender-neutral presumption favoring the parent found to be the primary caretaker. Still, other courts have rejected outright a mother’s claim to her child based only on the tender years doctrine. Today, a judicial finding of parental unfitness and denial of custody often requires compelling evidence of emotional instability, repeated and flagrant immoral acts, or a failure to provide care and guidance to the child through cruelty, abandonment, or neglect.

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

Eric Johnson’s answer to What is the point of granting divorced parents joint custody and splitting parenting time? Isn’t it the idea that the children benefit from having two parents? Isn’t that true only so long as both parents are positive influences and not criminals? – Quora

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Kingston v. Kingston – 2022 UT 43 – Parental Rights, Due Process Rights

2022 UT 43

IN THE SUPREME COURT OF THE STATE OF UTAH

RYAN CLYDE KINGSTON,
Appellant,

v.

JESSICA BENNY KINGSTON,
Appellee.

No. 20200350

Heard April 11, 2022
Filed __

On Appeal of Final Decree of Divorce

Third District, Salt Lake

The Honorable Andrew H. Stone

No. 144904226

Attorneys:

Steve S. Christensen, Clinton R. Brimhall, Salt Lake City, for appellant

Benjamin K. Lusty, Lisa Watts Baskin, Jaryl L. Rencher, Salt Lake City, for appellee

CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
JUDGE MORTENSEN and JUDGE TENNEY joined.

ASSOCIATE CHIEF JUSTICE PEARCE filed a dissenting opinion, in which
JUSTICE PETERSEN joined.

Having recused himself, JUSTICE LEE did not participate herein;
COURT OF APPEALS JUDGE RYAN D. TENNEY sat.

Due to his retirement, JUSTICE HIMONAS did not participate herein;
COURT OF APPEALS JUDGE DAVID N. MORTENSEN sat.

JUSTICE HAGEN and JUSTICE POHLMAN became members of the Court
after oral argument in this matter and accordingly did not participate.

CHIEF JUSTICE DURRANT, opinion of the Court

Introduction

¶1 Ryan and Jessica Kingston[1] divorced in 2016, following eight years of marriage and the birth of four children. At the time of their marriage, Ryan and Jessica were both members of the Order, also known as the Kingston Group, a polygamous religious community. Ryan remains a member of the Order today, but Jessica left the Order before the divorce.

¶2 During the divorce proceedings, the teachings and practices of the Order became a key issue as both Ryan and Jessica sought custody of their four children. Jessica argued that some of the Order’s teachings and practices, such as polygamy, were contrary to their children’s best interests. The district court found that the children faced potential harm from exposure to the Order-specifically noting the group’s practices of grooming children for early marriage and demonizing those, including Jessica, who have left the religion.

¶3 Based on Jessica and Ryan’s inability to agree on decisions regarding the children, concerns about Ryan’s behavior (including his membership in the Order), and a finding that Jessica had been the children’s primary caretaker, the district court granted sole legal custody to Jessica. The court ordered that physical custody be shared by both parents. Addressing its concerns about Ryan’s religious beliefs, the court also ordered in the divorce decree that “[t]he children should not be encouraged to adopt the teachings of any religion or be baptized into any religion without the consent of the legal guardian.”

¶4 Ryan does not challenge the district court’s award of sole legal custody to Jessica or its prohibition against him baptizing the children without her consent. But he argues the court’s prohibition against him encouraging the children “to adopt the teachings of any religion” without Jessica’s consent violates his fundamental right “to encourage them in the practice of religion”[2] protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. He also argues that the court’s prohibition violates his free speech, free exercise, and parental rights simultaneously under a hybrid rights theory. Alternatively, Ryan argues that even if the prohibition does not violate his constitutional rights, the district court abused its discretion because the prohibition “is not support[ed] by findings that show a rational basis for the ultimate decision.” We conclude that Ryan’s hybrid rights argument is inadequately briefed, so our analysis focuses on his argument that the prohibition interferes with his fundamental right as a parent. Ryan contends that any interference with this fundamental right must be narrowly tailored to achieve a compelling state interest and that the district court’s prohibition was overly broad.

¶5 Jessica counters that Ryan has no fundamental right to assert because he does not have legal custody of the children, and that even if Ryan’s fundamental right is implicated, the prohibition was narrowly tailored to address the State’s compelling interests in (1) “awarding legal custody based upon the best interests of the children”; (2) “resolving parenting disagreements”; and (3) “shielding the minor children from exposure to psychological harm resulting from teachings found to be harmful to them.”

¶6 We agree with Ryan that he has a fundamental right to encourage his children in the practice of religion. And the court’s award of sole legal custody to Jessica does not eliminate this fundamental right. Rather, the award of legal custody to Jessica limits Ryan’s parental right only to the extent necessary to provide Jessica with the authority to make major decisions for the children.

¶7 We also hold that the district court’s prohibition against Ryan “encourag[ing] [the children] to adopt the teachings of any religion” is not narrowly tailored to address the potential harms identified by the court. So we remand to the district court to craft a more narrowly tailored remedy. Because we determine that the prohibition violates Ryan’s fundamental right-and are remanding on this basis-we do not reach his alternative argument that the district court abused its discretion by failing to make adequate findings to support its prohibition.

Background

¶8 Ryan and Jessica grew up in a polygamist religious community known as the Order. They were married in 2008 and subsequently had four children together. At the time of their marriage, Ryan was twenty-one years old and Jessica was only sixteen. Jessica gave birth to their first child just six months after turning eighteen.

¶9 On July 29, 2014, Ryan and Jessica separated, and at that time, Jessica sought and was granted a temporary protective order from Ryan. The following month, Ryan filed a petition for conciliation, but Ryan and Jessica were unable to work out their differences.

¶10 Ryan filed for divorce in July 2015. The divorce trial began in September 2016. The district court bifurcated the proceedings, granting the divorce on September 27, 2016, but “reserving the remainder of the certified issues for further trial.”

¶11 After the divorce was granted, but before the resolution of the rest of the divorce proceedings, Ryan began to practice polygamy, entering into two new marriages. One of Ryan’s new wives was a teenager who “had only weeks before testified at trial that she herself had no intentions of marrying Ryan.” The other was Jessica’s half-sister. Leading up to the second part of the divorce trial in July 2019, Ryan and Jessica engaged in discovery, debated several motions that are not relevant to this appeal, completed two full custody evaluations, and unsuccessfully attempted to mediate their outstanding differences.

¶12 In July 2019, an eight-day trial took place, with the district court hearing testimony from dozens of witnesses, including multiple custody evaluators. After the trial, the court granted Jessica sole legal custody, determining a sole legal custodian was necessary because Ryan and Jessica were unable to agree on major decisions. The court decided to award Jessica sole legal custody because it found that she had been the primary caretaker of the children and that “Ryan’s religious practices . . . represent a direct threat of harm to the children.”

¶13 The court made both general and specific findings that Ryan’s religious beliefs could be harmful to the children, stating that “[t]he Order’s religious teachings jeopardize the health or safety of the children, and will cause harm to the children’s welfare.” Specifically, the court raised two concerns: (1) that the Order promotes the grooming of young girls to be child brides; and (2) that “[t]he Order’s teachings alienate the children from their mother” because “the Order community as a whole engages in ostracizing outsiders and demonizing people who have chosen to leave the group; actually referring to them as ‘the Devil’ or ‘of the Devil.'” And these concerns were exacerbated because “Ryan prioritizes plural marriages and adhering to his religious practices” over the best interests of the children.

¶14 The court was particularly concerned that “the parties have three young girls who[m] Ryan wishes to raise in a culture that grooms them to be child brides.” The court noted that Ryan had married Jessica, when she was only sixteen, and a second wife, who was only eighteen at the time of marriage. The court determined that “the potential for the ‘grooming’ of girls and young women in the Order represents a potential for significant social burdens, and the parties’ daughters should be reasonably protected from the potential harms related to grooming.”

¶15 Turning to its concern that the children may be alienated from Jessica by the Order’s teachings, the court noted that “[a]ny attempts to teach the children to denounce Jessica would be abusive.” The court found “that the Order community as a whole engages in ostracizing outsiders” and that exposure to these teachings “would be tantamount to abuse.”

¶16 The court also found that Ryan’s decision to marry Jessica’s half-sister and an eighteen-year-old while the divorce was pending, coupled with his desire that the children attend Order-run schools and extracurricular activities, was “indicative of his inability to prioritize the well-being of his children.” The court found that Ryan’s two marriages exposed the children to “[t]he inherent confusion that comes with such intermingled familial relationships” and were not in the children’s best interests. Looking at educational choices, the court found that Ryan had prioritized the Order over the children’s best interests by insisting they attend Ensign Academy, a school run by the Order, despite the school lacking “qualified or licensed educators.” This finding was supported by evidence demonstrating that the curriculum at Ensign Academy emphasizes “obedience to the ‘Order'” and “compliance to Kingston authority figures,” while also “encourag[ing] the children to reject outsiders”-including by teaching them “a ‘Memory Gem’ that taught, ‘If the Order doesn’t have it, we don’t need it.'”

¶17 Despite these concerns, the court granted Ryan and Jessica shared physical custody of the children, recognizing that “[b]oth parents have shown an ability to address the physical, psychological, and emotional needs of the children, though the evidence strongly favors Jessica on this point.” The court noted that although major decisions were a source of conflict, “day-to-day decisions regarding the children appear to be different,” as Ryan and Jessica had been able to “coordinat[e] travel and pick-ups[] and jointly supervis[e] and facilitat[e] their children’s homework and activities … with relatively little conflict.” The court also found that “[e]ach parent has demonstrated responsibility in caring for the children” and that “the children are happy, healthy, and thriving.” Based on these findings, the court granted shared physical custody-with Jessica as the custodial parent-requiring that Ryan get at least the minimum amount of time with the children set out in Utah Code section 30-3­35.1.

¶18 As part of the parenting plan, the court ordered that “the children shall not be encouraged to adopt the teachings of any religion or be baptized into any religion without the consent of the legal guardian.” Ryan filed a motion for the district court to amend its findings of fact, conclusions of law, and judgment, but the district court made only one minor revision, which did not address the prohibition against religious encouragement.

¶19 Ryan appealed, arguing the prohibition against religious encouragement violates his constitutional rights under the First and Fourteenth Amendments and that, even if it does not violate his constitutional rights, it is an abuse of the district court’s discretion. Specifically, he contends the order violates his fundamental right as a parent protected by the Due Process Clause and his free speech, free exercise, and parental rights simultaneously under a hybrid rights theory. The case was certified to us by the court of appeals. We have jurisdiction under Utah Code section 78A-3-102(3)(b).

Standard of Review

¶20 We review custody determinations deferentially, and so long as the district court’s “discretion is exercised within the confines of the legal standards we have set, and the facts and reasons for the decision are set forth fully in appropriate findings and conclusions, we will not disturb the resulting award.”[3] But to the extent Ryan’s appeal is based on an alleged violation of his constitutional rights, we review the district court’s decisions on constitutional issues for correctness.[4]

Analysis

¶21 Ryan argues that the district court violated his constitutional rights and abused its discretion by prohibiting him from “encourag[ing] [the children] to adopt the teachings of any religion … without the consent of the legal guardian.” He presents two overarching arguments: (1) the prohibition violates Ryan’s constitutional rights “under both a substantive due process theory and under a hybrid free speech/free exercise/parental rights theory”; and (2) in the alternative, even if the district court’s order is constitutionally sound, the district court’s “findings do not logically, rationally, or reasonably justify the prohibition.”

¶22 Looking at Ryan’s constitutional arguments, we start by noting that Ryan’s hybrid rights argument is inadequately briefed.[5] So our constitutional analysis is limited to Ryan’s argument that the district court’s prohibition interferes with his fundamental right as a parent “to encourage [his children] in the practice of religion.” And because we resolve the case based on Ryan’s fundamental parental right, we do not reach his alternative argument that even if the prohibition is constitutional, the district court’s findings do not adequately support it. Ryan’s fundamental right argument is two­fold. He argues that (1) the district court’s prohibition must satisfy strict scrutiny because it interferes with a fundamental right; and (2) the prohibition is not narrowly tailored to address the compelling interests identified by the court.

¶23 Jessica counters that (1) because Ryan does not have legal custody of the children, he has no fundamental right at issue; and (2) even if strict scrutiny applies, the prohibition is narrowly tailored to fit a compelling state interest.

¶24 We agree with Ryan that parents have a fundamental right to encourage their children in the practice of religion under the Due Process Clause of the Fourteenth Amendment. We further determine that the award of sole legal custody to Jessica does not rob Ryan of this right but curtails it only to the extent necessary to give Jessica the authority to make major decisions for the children. And we conclude that strict scrutiny applies because the district court’s prohibition interferes with Ryan’s fundamental right and goes beyond allocating custody and decision-making authority.

¶25 Next, applying strict scrutiny, we hold that although the district court’s prohibition is aimed at serving a compelling governmental interest, it is not narrowly tailored to address that interest. So because the prohibition violates Ryan’s constitutional right, we remand to the district court to amend the divorce decree in accordance with this opinion.

I. The District Court’s Prohibition Interferes with Ryan’s Fundamental Right to Encourage His Children in the Practice of Religion

¶26 Ryan argues that the district court’s order preventing him from encouraging his children to adopt the teachings of any religion without Jessica’s consent violates his fundamental right to participate in his children’s religious upbringing. He contends that a string of United States Supreme Court cases, starting with Meyer v. Nebraska,[6] recognizes a liberty interest protected by the Due Process Clause of the Fourteenth Amendment for parents to give their children “religious training and to encourage them in the practice of religious belief.”[7]

¶27 Jessica counters that because she has been awarded sole legal custody, “Ryan does not have a fundamental liberty interest in providing religious instruction to the children contrary to [her] wishes.” She contends that “a key distinction between a custodial and a noncustodial parent must be made to determine whether a fundamental liberty interest is indicated.”

¶28 To review the district court’s limitation on Ryan’s parental rights, “we must identify and apply a standard of scrutiny.”[8] And to identify the correct level of scrutiny, we must determine if a fundamental right is at issue. “If the right infringed or foreclosed is a right we have deemed ‘fundamental,'” we adhere to “our strict scrutiny standard.”[9] If the right identified is not fundamental, then the state interference is subject to only deferential, rational basis review.[10]

¶29 “Under the approach established by the Supreme Court, the nature of parental rights is defined based on (1) the status of the individual invoking the right and (2) the parental conduct to be protected.”[11] Looking to Supreme Court caselaw, we hold that parents have a fundamental right to encourage their children in the practice of religion. And while an award of legal custody to one parent in a divorce limits the other parent’s ability to make major decisions for the children, it does not eliminate this fundamental right. So any state interference with parents’ right to encourage their children in the practice of religion, including the district court’s prohibition here, is subject to strict scrutiny.

A. The United States Supreme Court Has Recognized Parents’ Fundamental Right to Encourage Their Children in the Practice of Religion

¶30 The Due Process Clause of the Fourteenth Amendment to the United States Constitution declares that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.” The Supreme Court “ha[s] long recognized that the Amendment’s Due Process Clause, like its Fifth Amendment counterpart, ‘guarantees more than fair process.'”[12] “The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests.”[13] And “the interest of parents in the care, custody, and control of their children … is perhaps the oldest of the fundamental liberty interests recognized by th[e] Court.”[14]

¶31 In Meyer v. Nebraska, the Supreme Court held that the Due Process Clause refers to liberty beyond “mere[] freedom from bodily restraint,” to include individual rights such as “the right of the individual to … bring up children.”[15] Two years later, the Court again recognized this right in Pierce v. Society of the Sisters of the Holy Names of Jesus & Mary as “the liberty of parents and guardians to direct the upbringing and education of children under their control.”[16]

¶32 The Court continued to develop its jurisprudence around the rights of parents under the Fourteenth Amendment in two cases addressing parents’ right to take part in their children’s religious upbringing: Prince v. Massachusetts[17] and Wisconsin v. Yoder.[18]

¶33 In Prince, Ms. Prince, the aunt and legal custodian of a nine-year-old child, argued that Massachusetts’s child labor laws unconstitutionally interfered with her “rightful exercise of her religious convictions.”[19] She was found to have violated Massachusetts’s child labor laws when she took her niece with her to preach and distribute Jehovah’s Witness religious materials in the evening.[20] Massachusetts’s law prohibited children from selling magazines in the evening and specifically prevented adults from providing magazines to children for this purpose.[21] Guardians were also prohibited from knowingly allowing their children to violate child labor laws.[22]

¶34 Ms. Prince argued that the child labor statutes were unconstitutional as applied to her because they violated both her First Amendment right to freedom of religion and her right under the Due Process Clause of the Fourteenth Amendment to teach her child “the tenets and the practices of [her] faith.”[23] The Prince Court recognized the significance of these two rights coming together, commenting that “[t]he parent’s conflict with the state over control of the child and his training is serious enough when only secular matters are concerned. It becomes the more so when an element of religious conviction enters.”[24]

¶35 The Prince Court proceeded to balance the State’s interest in protecting child welfare through child labor laws against Ms. Prince’s “sacred private interests.”[25] The Court recognized the right of “parents to give [their children] religious training and to encourage them in the practice of religious belief,” noting that “[i]t is cardinal with us that the custody, care[,] and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”[26] But the Court held that “neither rights of religion nor rights of parenthood are beyond limitation,”[27] determining that the child labor laws were necessary to address “the crippling effects of child employment.”[28]

¶36 In Wisconsin v. Yoder, the Court revisited the right of parents to direct their children’s religious upbringing.[29] In that case, a group of Amish parents questioned the constitutionality of a Wisconsin law requiring children to remain in school through the age of sixteen.[30] The Amish parents believed sending their children to school beyond the eighth grade violated their religious tenets, such as independence from the outside world, living cooperatively rather than competitively, and education based on doing rather than formal learning.[31] They believed that complying with the compulsory attendance law and sending their children to high school would ” endanger their own salvation and that of their children.”[32]

¶37 Like in Prince, the Court looked at the intersection of free exercise rights protected by the First Amendment and the fundamental rights of parents protected by the Due Process Clause of the Fourteenth Amendment. The Court recognized that the compulsory education law interfered with the Amish parents’ rights “specifically protected by the Free Exercise Clause of the First Amendment” and also the fundamental right “of parents with respect to the religious upbringing of their children.”[33]

¶38 The Court concluded, “Even more markedly than in Prince, therefore, this case involves the fundamental interest of parents, as contrasted with that of the State, to guide the religious future and education of their children.”[34] And when balancing the State’s interests versus those of the Amish parents, the Court applied a heightened level of scrutiny, stating that “when the interests of parenthood are combined with a free exercise claim of the nature revealed by this record, more than merely a ‘reasonable relation to some purpose within the competency of the State’ is required to sustain the validity of the State’s requirement under the First Amendment.”[35]

¶39 The Court struck down Wisconsin’s compulsory attendance requirement as applied to the Amish parents, holding that the State failed to show with sufficient “particularity how its admittedly strong interest in compulsory education would be adversely affected by granting an exemption to the Amish.”[36]

¶40 Although the Yoder Court partially relied on the Free Exercise Clause, it also referred throughout the decision to parents’ fundamental right to encourage their children in the practice of religion. The Court referred to the holding in Pierce as “stand[ing] as a charter of the rights of parents to direct the religious upbringing of their children.”[37] Years later, in Employment Division v. Smith, the Court distinguished Yoder from other free exercise cases on the basis that the holding rested partially on “the rights of parents to direct the religious upbringing of their children.”[38]

¶41 Looking at the chain of cases from Meyer to Yoder, the Supreme Court has recognized that parents have a fundamental right to encourage their children in the practice of religion.

B. Parents’ Fundamental Right to Encourage Their Children in the Practice of Religion Is Not Dependent upon Legal Custody

¶42 Jessica does not directly attack the existence of parents’ fundamental right to encourage their children in the practice of religion; rather, she argues that it does not extend to Ryan, because she is the sole legal custodian of their children. She contends that under the two-part test used in In re Adoption of K.T.B.[39]-looking at both an individual’s status and the conduct protected in analyzing parental rights-the fundamental right established by the Supreme Court is limited to those with the status of parent with legal custody.

¶43 Ryan counters that “[t]he correct approach … is to view Ryan and other parents who did not win joint or sole legal custody of their children during their divorce as having lost only as much of their parental rights as was necessary to fulfill the government’s compelling purpose.” He argues that the compelling purpose served by an award of sole legal custody is “to allocate indivisible parental rights, such as deciding which school the child is enrolled at or into what religion the child is formally inducted.” According to Ryan, the district court’s award of sole legal custody to Jessica limits his parental rights only with regard to these decisions.

¶44 We find Ryan’s argument to be more persuasive. Both Prince v. Massachusetts and Wisconsin v. Yoder describe the fundamental right to “encourage [their children] in the practice of religious belief” as belonging to those with the status of “parent.”[40] Jessica is asking us to change “[t]he level of generality” at which the right identified in Prince and Yoder is framed, but “[t]he level of generality at which an asserted right is framed may properly be considered an unresolved issue only where a party argues that the Due Process Clause protects someone whose (1) status or (2) conduct had not previously received constitutional protection.”[41]

¶45 In In re Adoption of K.T.B., we examined this standard by looking at two cases where the Supreme Court addressed the level of generality of a right when an individual’s status had previously not received constitutional protection: (1) the status of foster parents, analyzed in Smith v. Organization of Foster Families for Equality & Reform;[42] and (2) the status of an unmarried father of a child born into a woman’s existing marriage with another man, analyzed in Michael H. v. Gerald D.[43] In both of those cases, the Court looked to the traditional meaning of “parent,” recognizing that “the liberty interest in family privacy has its source, and its contours are ordinarily to be sought, not in state law, but in intrinsic human rights, as they have been understood in this Nation’s history and tradition.”[44]

¶46 Unlike foster parents, whose constitutional rights as parents presented a novel question,[45] and unwed fathers of children born into another marriage, whose rights had not historically been recognized,[46] Ryan is the biological parent of children born into his marriage-a “parent” that has traditionally received constitutional protection. He does not belong to a group that “ha[s] not previously received constitutional protection,”[47] so we frame the asserted right at the same level of generality used by the Prince and Yoder Courts-a right belonging to “parents.”[48]

¶47 Still, as Ryan concedes, his right to encourage his children in the practice of religion is limited by his loss of legal custody. As the sole legal custodian of their children, Jessica has the “power and duty to make the most significant decisions about [the children’s] life and welfare.”[49] Any decision to baptize the children, for example, falls squarely within this authority.

¶48 But Ryan’s loss of legal custody does not mean he is completely bereft of parental rights. The district court’s parenting plan calls for shared physical custody and notes that “[t]he parent with which the children are then located should make day-to-day decisions involving the children,” subject to the outlined restrictions. Utah Code section 30-3-33, which lists advisory guidelines for parenting plans where parents share physical custody, suggests that parents without legal custody should still be notified and allowed to participate in “all significant school, social, sports, and community functions”; “have access directly to all school reports”; and have an equal opportunity to share holidays with their children.[50] Ryan has not lost the right to be his children’s parent-just the right “to make the most significant decisions about [the children’s] life and welfare.”[51]

¶49 Jessica’s status as sole legal custodian curtails Ryan’s fundamental right to encourage his children’s practice of religion only with respect to major decisions. And because the district court’s prohibition against Ryan “encourag[ing] [the children] to adopt the teachings of any religion” is not limited to the most significant decisions, it interferes with Ryan’s fundamental parental right.

C. Strict Scrutiny Applies Because the District Court’s Prohibition
Interferes with Ryan’s Fundamental Right and Goes Beyond Allocating
Custody and Major Decision-Making Authority

¶50 When the United States Supreme Court “has recognized a due process right it deems ‘fundamental,’ it consistently has applied a standard of strict scrutiny to the protection of such a right.”[52] The dissent agrees “that parents have a fundamental right to influence the religious upbringing of their children.”[53] Yet it disagrees that strict scrutiny applies to this case, instead asserting that “we have repeatedly applied the best interest test to evaluate questions that implicate a parent’s fundamental parental rights.”[54]

¶51 In support of this assertion, the dissent relies on three cases involving custody determinations: Doyle v. Doyle,[55] Clarke v. Clarke,[56] and Hogge v. Hogge.[57] We do not dispute that courts, including ours, routinely allocate custody and decision-making authority based on the best interests of the child. But by relying on cases where courts allocated custody, the dissent misses what is unique about the district court’s prohibition in this case: it is not a custody allocation. The prohibition is not about which parent is better suited to make major decisions or have physical custody of the children. The court separately addressed custody, determining that it was in the best interests of the children for Jessica to have legal custody but for both parents to share physical custody. The court went beyond allocating custody when it prohibited Ryan from encouraging his children to adopt the teachings of any religion.

¶52 In Reno v. Flores, the United States Supreme Court distinguished an allocation of custody from an exercise of custody and explained that the best interests of the child standard does not govern the latter:

“The best interests of the child,” a venerable phrase familiar from divorce proceedings, is a proper and feasible criterion for making the decision as to which of two parents will be accorded custody. But it is not traditionally the sole criterion-much less the sole constitutional criterion-for other, less narrowly channeled judgments involving children, where their interests conflict in varying degrees with the interests of others. Even if it were shown, for example, that a particular couple desirous of adopting a child would best provide for the child’s welfare, the child would nonetheless not be removed from the custody of its parents so long as they were providing for the child adequately. Similarly, “the best interests of the child” is not the legal standard that governs parents’ or guardians’ exercise of their custody: So long as certain minimum requirements of child care are met, the interests of the child may be subordinated to the interests of other children, or indeed even to the interests of the parents or guardians the mselves.[58]

The prohibition at issue here does not allocate custody. Rather, it governs Ryan’s exercise of his physical custody. This distinction is significant, and the dissent errs by equating the prohibition to an allocation of custody.

¶53 Noting the significant impact of custody decisions on parental rights, the dissent argues that if the court can do more, then it must be able to do less. So, the dissent’s argument follows, if a court can completely strip a parent of physical or legal custody based on the best interests of the child, then a court must also be able to interfere with a parent’s fundamental rights in any less intrusive way. But divorce does not eliminate a parent’s fundamental rights.[59]

¶54 And while the best interests of the child standard is of primary importance when allocating decision-making authority as to major decisions, strict scrutiny applies to court orders that go beyond this allocation to restrict a parent’s fundamental right to encourage his or her children in the practice of religion. In In re Marriage of McSoud, the Colorado Court of Appeals distinguished court orders that allocate “sole decision making over the child’s religious upbringing” from those that “go[] beyond” allocating this decision-making authority.[60] In that case, a mother challenged district court orders allocating parental rights and restricting parents’ engagement in their child’s religious upbringing. The district court allocated “sole decision-making regarding the child’s religious upbringing” to the father.[61] It also entered permanent orders that subjected the child’s religious upbringing to recommendations made by a special advocate, including a recommendation prohibiting both parents from giving “mixed messages” about religion to the child and another that dictated which parent could take the child to church activities.[62]

¶55 In reviewing the mother’s challenge, the Colorado Court of Appeals recognized that “[p]arents have a fundamental right to make decisions concerning the care, custody, and control of their children.”[63] The court further noted that “[a] parent’s right to determine the religious upbringing of a child derives from the parent’s right both to exercise religion freely and to the care, custody, and control of a child.”[64]

¶56 The court concluded “that in allocating sole religious decision-making to father, the [district] court properly treated ‘the best interests of the child [as] of primary importance,'”[65] reasoning that “as a matter of law, this allocation does not alone deny mother’s additional First Amendment rights to influence the child’s religious upbringing during her parenting time or to exercise her own religious beliefs.”[66] But it concluded that strict scrutiny was appropriate for the orders that went beyond allocating this decision-making authority, including the orders about giving the child mixed religious messages and taking the child to church activities, reasoning that “the best interests standard” was limited by “a parent’s constitutional rights as to religious upbringing of the child.”[67] These two orders were remanded to the district court “[b]ecause the court did not discuss a compelling state interest” and “instead relied on the best interests test.”[68]

¶57 Although, unlike here, the court in McSoud reviewed the mother’s challenge under “both the Free Exercise Clause and a parent’s fundamental right to the care, custody, and control of a child,”[69] it made no attempt to distinguish between the two rights, and there is nothing in the court’s opinion to indicate that the parental right standing alone would be inadequate to mandate strict scrutiny. In remanding the issues, the court provided the following guidance:

To the extent that, on remand, the court goes beyond allocating sole decision making over the child’s religious upbringing and otherwise restricts either parent’s right to expose the child to that parent’s religious beliefs or to practice that parent’s religion, the court must find a compelling state interest in the form of avoiding substantial emotional or physical harm to the child.[70]

In other words, the court directed that strict scrutiny be applied on remand if the district court (1) goes beyond allocating sole decision-making authority and (2) restricts a parent’s Free Exercise right or the fundamental right to expose the child to that parent’s religious beliefs. We agree with this reasoning and conclude that here, the incursion on Ryan’s fundamental right to encourage the children in the practice of religion mandates we apply strict scrutiny to the district court’s prohibition.

¶58 The dissent maintains that many of the issues in this case would be more easily resolved if we had “[a] properly briefed First Amendment challenge,”[71] emphasizing that “the analysis changes” if a parent “claims that the district court’s restrictions violate his individual First Amendment right” because “[u]nlike shared parental rights, a district court cannot compromise those individual rights unless the order can withstand strict scrutiny.”[72] The dissent seems to suggest that while Ryan might have prevailed on a First Amendment claim, he ultimately loses on his claim based on his fundamental right to encourage the children in the practice of religion. We see no reason to subordinate one of Ryan’s constitutional rights to another and are not convinced by the dissent’s suggestion that we should do so here simply because parental rights are “shared” and First Amendment rights are not.

¶59 As mentioned, the district court awarded shared physical custody to Ryan. Its award of legal custody to Jessica is not, in and of itself, a justification for stripping Ryan of the full range of his fundamental parental rights. While he does not challenge Jessica’s right, consistent with the legal custody she enjoys, to make major religious decisions with respect to the children, he does, as a custodial parent, challenge the district court’s broad restriction on his right to encourage his children with respect to religion. Any such restriction should be required to pass strict scrutiny muster. Although many courts have found the best interests of the child standard to be a necessary tool when faced with parents’ competing rights to custody and control over their children, this does not mean that divorced parents are subject to limitless interference with their fundamental parental rights free of strict scrutiny review.

¶60 The district court’s prohibition curtails Ryan’s parental rights beyond assigning all major decision-making-which is all an award of legal custody is supposed to do[73]-to Jessica. Preventing Ryan from “encourag[ing] [the children] to adopt the teachings of any religion” without first receiving Jessica’s permission implicates Ryan’s day-to-day life with the children and the decisions he is otherwise entitled to make during his legal visitation periods. And, contrary to the dissent’s analysis, the statutory scheme for granting custody based on a child’s best interests cannot, absent a showing that the strict scrutiny standard has been met, displace a right guaranteed by the United States Constitution.

II. The District Court’s Prohibition Is Not Narrowly Tailored to
Address the Identified Harms

¶61 Under strict scrutiny, “a fundamental right is protected except in the limited circumstance in which an infringement of it is shown to be ‘narrowly tailored’ to protect a ‘compelling governmental interest.'”[74] Applying this standard here, we conclude that although the district court’s prohibition is aimed at the compelling governmental interest of shielding the children from psychological harm, it is not narrowly tailored to address the identified potential harms.

A. The District Court’s Prohibition Aims to Shield the Children from
Psychological Harm

¶62 United States Supreme Court caselaw sets a high bar for defining state interests as compelling, indicating that “the state interest in overriding a parent’s fundamental rights is ‘compelling’ only in circumstances involving the avoidance of harm that is substantial.”[75]

¶63 Other states that have considered the right of noncustodial parents to encourage their children in the practice of religious belief have applied tests similar to strict scrutiny-requiring that any incursion on a parent’s fundamental right be directly tied to preventing harm to the children. In Zummo v. Zummo, the Pennsylvania Supreme Court held that a court can only interfere with “a parent’s post-divorce parental rights regarding the religious upbringing of his or her children” when there is a “substantial threat of physical or mental harm to the child” and the court is using the “least intrusive measures adequate to protect the interests identified.”[76] The California Court of Appeals, in In re Marriage of Murga, adopted the rule of “the majority of American jurisdictions” that courts may not “restrain the noncustodial parent from exposing the minor child to his or her religious beliefs and practices, absent a clear, affirmative showing that these religious activities will be harmful to the child.”[77]

¶64 Although these courts did not use the term “strict scrutiny,” the tests they applied are almost identical to our application of strict scrutiny. We require courts to identify a compelling state interest and recognize “the avoidance of harm that is substantial” as one such interest.[78] The Zummo court required a showing of “a substantial risk of harm”[79] and the Murga court similarly required a showing “that the child will be … harmed.”[80] Like our court’s requirement for narrow tailoring, the Zummo court’s requirement that the “least intrusive measures adequate” be used and the Murga court’s requirement that a court show that “these religious activities will be harmful to the child” both require a direct connection between the prohibited conduct and the potential harm. And our court has held that when “the right infringed or foreclosed is a right we have deemed ‘fundamental,'” we adhere to “our strict scrutiny standard.”[81]

¶65 Jessica argues that the district court’s prohibition survives strict scrutiny because it protects three compelling state interests: (1) “the state’s interest in awarding legal custody based upon the best interests of the child”; (2) “the state’s compelling interest in resolving parental disagreements”; and (3) “the state’s compelling interest[] [in] shielding the minor children from exposure to psychological harm resulting from teachings found to be harmful to them.”

¶66 First, while we agree with Jessica that the State has a compelling interest in awarding legal custody based on the best interests of the child,[82] the district court’s prohibition goes beyond this interest. And Ryan has not challenged the award of sole legal custody to Jessica in this appeal. As discussed above, because Jessica has legal custody of the children, she has the authority to make the “most significant decisions” about their upbringing.[83] But the district court’s prohibition includes no such limiting principle-it forbids Ryan from “encouraging [the children] to adopt the teachings of any religion,” without distinguishing between major decisions, like baptism, and minor decisions, like saying grace in front of the children before a shared meal or taking them to a learning day at a synagogue.

¶67 Second, the State’s interest in “resolving parental disagreements” is not typically a compelling interest. This is because it is not usually an interest aimed at preventing harm that is substantial.[84] Several states have addressed what restrictions are appropriate when divorced parents have conflicting religious beliefs, and “the vast majority” of them

have concluded that each parent must be free to provide religious exposure and instruction, as that parent sees fit, during any and all period of legal custody or visitation without restriction, 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 in absence of the proposed restriction.[85]

We agree with these states that preventing children from exposure to conflicting religions is not in itself a compelling interest. Indeed, “it’s plausible that children may benefit from being taught just one religion-but it’s also plausible that they may benefit from being taught two.”[86] The State’s interest in resolving parental disagreements about religion must be tied to preventing “a substantial threat of present or future, physical or emotional harm to the child” in order to be compelling. And the district court’s findings do not tie disagreement between Ryan and Jessica over day-to-day decisions to any substantial threat of harm to the children.[87]

¶68 But we agree with Jessica that the State has a compelling interest in shielding the children from psychological harm. The district court found that “[t]he Order’s religious teachings jeopardize the health or safety of the children, and will cause harm to the children’s welfare.” Specifically, the court identified two potentially substantial harms to the children associated with Ryan’s religious beliefs: (1) grooming of the children for early marriage; and (2) exposure to Order teachings that ostracize outsiders and demonize those who have left the group, including Jessica. Protecting the children from these harms is a compelling state interest.

B. The District Court’s Prohibition Is Not Narrowly Tailored to Address
the Identified Potential Harms to the Children

¶69 Having recognized that the district court’s prohibition protects a compelling governmental interest, we must assess whether it was narrowly tailored to meet that objective. “In other words, we consider whether the challenged [prohibition] w[as] ‘necessary’ to achieve the state’s purpose . . . .”[88]

¶70 The district court’s prohibition is broader than necessary to prevent the identified potential harms to the children. The court prohibited Ryan from “encourag[ing] [the children] to adopt the teachings of any religion” without Jessica’s consent.[89] This prohibition applies broadly to “the teachings of any religion,” but the court only identified specific harms associated with the Order. As written, the prohibition would prevent Ryan from teaching the children the Lord’s Prayer or encouraging them to adopt the teachings of Islam. Based on a plain language reading of the prohibition, Ryan would have to seek Jessica’s consent before engaging in either of these activities. The prohibition cannot be described as “narrowly tailored” when it reaches far beyond the compelling interest it is meant to address.

¶71 And while there is a relationship between the identified potential harms to the children and the district court’s prohibition, this is not enough to satisfy strict scrutiny. Barring Ryan from “encourag[ing] [the children] to adopt the teachings of any religion” is not narrowly tailored to protecting a compelling state interest.

Conclusion

¶72 The district court’s prohibition against Ryan “encourag[ing] [the children] to adopt the teachings of any religion … without [Jessica’s] consent” interferes with Ryan’s fundamental right protected by the Due Process Clause of the Fourteenth Amendment. Parents have a fundamental right to encourage their children in the practice of religion. Awarding one parent legal custody does not deprive the other parent of this right beyond limiting the noncustodial parent’s authority to make major decisions for the children. Because the district court’s prohibition interferes with Ryan’s fundamental right, it is subject to strict scrutiny. And while the State has a compelling interest in protecting the children from harm, the district court’s prohibition is not narrowly tailored to address the harms identified. We remand for the court to craft a more narrowly tailored remedy.

ASSOCIATE CHIEF JUSTICE PEARCE, dissenting in the Opinion of the Court:

¶73 The majority applies strict scrutiny to a district court’s order allocating to the custodial parent the sole ability to determine her children’s religious upbringing. This is an unprecedented step. Never before have we applied strict scrutiny to the allocation of parental rights between two divorcing parents. Until today, we have followed the statutory framework that makes the child’s best interest the paramount concern and permits a court to allocate a fundamental parental right to one parent when presented with evidence that the other parent’s exercise of that right risks harm to the child. Strict scrutiny review should be reserved to those cases where a district court’s allocation of parental rights infringes a separate constitutional right-such as a parent’s First Amendment right. But here, where Ryan has inadequately briefed his First Amendment challenge, there is no cause for strict scrutiny review. I respectfully dissent.

¶74 The district court’s order prohibits Ryan from “encourag[ing]” his children “to adopt the teachings of any religion” without Jessica’s consent. As I see it, and seemingly as does the majority, the district court’s order implicates three separate rights: Ryan’s right to make major decisions concerning the children’s religious upbringing; Ryan’s right to make minor, or day-to-day, decisions concerning the children’s religious upbringing; and Ryan’s First Amendment right. Ryan challenges the district court’s ruling only as it affects the last two of these rights.

PEARCE, ACJ, dissenting

¶75 The majority determines that Ryan’s First Amendment argument is inadequately briefed, thereby limiting its “constitutional analysis . . . to Ryan’s argument that the district court’s prohibition interferes with his fundamental right as a parent ‘to encourage [his children] in the practice of religion.'” Supra ¶ 22 (second alteration in original). I agree with that assessment.

¶76 But the majority also concludes that “Jessica’s status as sole legal custodian curtails Ryan’s fundamental right to encourage his children’s practice of religion only with respect to major decisions.” Supra ¶ 49. “And because the district court’s prohibition against Ryan ‘encourag[ing] [the children] to adopt the teachings of any religion’ is not limited to the most significant decisions, it interferes with Ryan’s fundamental parental right” and is therefore subject to strict scrutiny. Supra ¶ 49 (alterations in original). I cannot agree with that.

¶77 By statute, all parental rights-including the rights to make major and minor decisions concerning the children’s religious upbringing-are subject to allocation by the district court based on the best interest of the children. Strict scrutiny review comes into play only to the extent that the district court’s allocation of parental rights impacts a parent’s First Amendment right.

I. Child Custody Orders Assigning Parental Rights Are Subject to the Best Interest of the Children, Not Strict Scrutiny

¶78 The majority first asserts that parents have a fundamental right to influence the religious upbringing of their children. Supra Part I.A. I agree.[90] But the majority also concludes that a district court’s decision assigning this fundamental parental right to one parent over the other to promote the best interest of the children is subject to strict scrutiny review. Supra Part I.C. I disagree.

¶79 Utah Code provides that decisions concerning custody and post-divorce parental rights should be made in accordance with the children’s best interest. UTAH CODE § 30-3-10(2) (“In determining any form of custody and parent-time under [Utah Code section 30-3­10(1)], the court shall consider the best interest of the child ….” (emphasis added)). The Code further states, “Absent a showing by a preponderance of evidence of real harm or substantiated potential harm to the child . . . it is in the best interests of the child to have both parents actively involved in parenting the child.” Id. § 30-3-32(2)(b)(iii) (emphasis added). Utah Code includes “the child’s education, healthcare, and religious upbringing” as elements of parenting a child. See id. § 30-3-10.9(5)(a) (listing required elements of a parenting plan).

¶80 Under Utah law, therefore, it is presumptively in the best interest of the children for both parents-regardless of custodial status-to participate in the religious upbringing of their children. Id. § 30-3-32(2)(b)(iii). That presumption may be overcome, however, upon “a showing by a preponderance of evidence of real harm or substantiated potential harm to the child[ren].” Id. § 30-3-32(2)(b). When such a showing is made, as it was here, the district court is charged with allocating the parental right to direct the children in the practice of religion in accordance with the children’s best interest.[91] See id. § 30-3-10(2).

¶81 With this framework in mind, we have repeatedly applied the best interest test to evaluate questions that implicate a parent’s fundamental parental rights. Indeed, many of the decisions that a district court may need to make in a case involving divorcing parents with children touches such rights. For example, this court has held that the best interest test is the correct standard to apply in a case granting a parent sole decision-making authority over the other parent’s objections. See Doyle v. Doyle, 2011 UT 42, ¶¶ 3, 19-20, 24, 258 P.3d 553. That authority included the ability to enroll the child in special education classes and counseling. See id. ¶¶ 14, 16.

¶82 Additionally, our court of appeals has concluded that because a father “lack[ed] the ability to compromise [and] make good decisions quickly,” and would not “act in the children’s best interests with respect to their health and safety,” that all medical and health care decisions be left to the mother who possessed “the ability to be flexible and compromise to promote the children’s best interest.” Clarke v. Clarke, 2012 UT App 328, ¶¶ 5, 8, 292 P.3d 76 (alterations in original).

¶83 Perhaps more strikingly, this court upheld a district court’s ruling that stripped a parent of all physical custody of his children after examining whether that decision was in the children’s best interest. Hogge v. Hogge, 649 P.2d 51, 55-56 (Utah 1982).

¶84 Doyle, Clarke, and Hogge all involved a parent’s fundamental rights. And in each of those cases, we stuck to the statutory framework and affirmed orders after examining them to ensure that they were in the child’s best interest. In none of those cases did we require that the district court compromise the child’s best interest by narrowly tailoring the order to accommodate the noncustodial parent’s parental rights. In none of those cases did we even hint that the Constitution might require strict scrutiny review when a district court allocates parental rights between divorcing parents.

¶85 The majority attempts to distinguish the district court order in this case from the “routine[] allocat[ions]” of “custody and decision-making authority” in Doyle, Clarke, and Hogge. Supra ¶ 51. The majority opines that the district court “went beyond allocating custody when it prohibited Ryan from encouraging his children to adopt the teachings of any religion.” Supra ¶ 51. I agree, but that fact does not change the analysis. The statute does not distinguish between the larger questions of custody and decision-making authority and the lesser-included questions of restrictions on routine, day-to-day interactions with a child. The statute certainly does not demand the anomalous result the majority’s position dictates-that a court need not apply strict scrutiny to an order that takes away a parent’s right to decide what church the child will join, but must apply strict scrutiny to a restriction on what a parent who has lost that right might do to undercut the custodial parent’s decisions about the child’s religious upbringing.[92] This is a new step for our case law, and one that ignores the logic of Doyle, Clarke, and Hogge. In each of those cases, we upheld a district court order that restricted a parent’s fundamental parental right based on the best interest of the child.93

¶86 Most states that have considered whether one parent can prevent the other from directing the children’s religious upbringing do not apply strict scrutiny. These states instead examine whether there has been a sufficient showing of harm to the child to justify assigning exclusive decision-making to one parent over the other. The California Court of Appeals observed that “in the majority of American jurisdictions that have considered the question, … courts have refused to restrain the noncustodial parent from exposing the minor child to his or her religious beliefs and practices, absent a clear, affirmative showing that these religious activities will be harmful to the child.” In re Marriage of Murga, 163 Cal. Rptr. 79, 82 (Ct. App. 1980) (citations omitted). The California court applied this principle to conclude that “while the custodial parent undoubtedly has the right to make ultimate decisions concerning the child’s religious upbringing, a court will not enjoin the noncustodial parent from . . . involving the child in his or her religious activities in the absence of a showing that the child will be thereby harmed.” Id. (emphasis added).

¶87 The Pennsylvania Supreme Court has similarly decided that a parent “must be free to provide religious exposure and instruction, as that parent sees fit, during any and all period of legal custody or visitation without restriction, unless the challenged beliefs or conduct of the parent are demonstrated to present a substantial threat of … harm to the child.” Zummo v. Zummo, 574 A.2d 1130, 1154-55 (Pa. 1990). The Pennsylvania court emphasized that its standard was one that “requires proof of a ‘substantial threat'” of harm and not simply “some probability” of harm or “the speculative possibility of mere disquietude, disorientation, or confusion arising from exposure to ‘contradictory’ religions.” Id. at 1155.

¶88 The majority reads Murga and Zummo differently. In its view, these cases direct a reviewing court to apply strict scrutiny-or, at the very least, something “almost identical” to it-to a district court’s decision affecting a parent’s right to decide their children’s religious upbringing. Supra ¶ 64. But the majority sees strict scrutiny where it does not exist. While the Murga and Zummo courts undoubtedly require a connection between the harm alleged and the restriction imposed, they do not require reviewing courts to walk through the well-established two-part analysis we all know as strict scrutiny.

¶89 In Zummo, for example, the court said that a parent must make a showing of “a substantial threat of present or future, physical or emotional harm to the child” to deprive the other parent of the right to “provide religious exposure and instruction.” See 574 A.2d at 1154-55 (citations omitted). To the majority, this resembles a compelling governmental interest. Supra ¶ 64. To me, this mirrors the language in Utah Code section 30-3-32 requiring “a showing . . . of real harm or substantiated potential harm to the child” to rebut the presumption in favor of joint parenting. UTAH CODE § 30-3­32(2)(b).

¶90 The majority heavily relies on a case from the Colorado Court of Appeals, In re Marriage of McSoud, 131 P.3d 1208 (Colo. App. 2006). Supra ¶¶ 54-57. But McSoud does not provide the answer the majority is looking for. As the majority explains, in McSoud, “[t]he district court allocated ‘sole decision-making regarding the child’s religious upbringing’ to the father” and adopted the recommendations of a special advocate “prohibiting both parents from giving ‘mixed messages’ about religion … and … dictat[ing] which parent could take the child to church activities.” Supra ¶ 54 (citing McSoud, 131 P.3d at 1218-19). The mother challenged the district court’s decision, arguing that it violated both her fundamental parental right to “influence … the child’s religious upbringing” and her First Amendment right to free exercise. McSoud, 131 P.3d at 1214.

¶91 The majority correctly points out that the McSoud court upheld the district court’s decision allocating sole religious decision-making to the father based on the best interest of the child. Supra ¶ 56 (citing McSoud, 131 P.3d at 1219). The majority also rightly reads McSoud as applying strict scrutiny to the portions of the district court’s order adopting the recommendations of the special advocate. Supra ¶ 56 (citing McSoud, 131 P.3d at 1217). But contrary to the majority’s suggestion, the McSoud court did not apply strict scrutiny review because it was allocating a fundamental parental right. It applied heightened review to those portions of the district court’s order that impacted the mother’s First Amendment right to free exercise.[93]

 

¶92 The McSoud court explained that “the best interest standard . . . cannot overcome the express constitutional right to freedom of religion,” and where a district court order “not only affects [a parent’s] rights with respect to the religious upbringing of her child, [but] also interfere[s] with her own rights under the Free Exercise Clause,” it must survive strict scrutiny. 131 P.3d at 1217. Turning to the district court order before it, the McSoud court concluded,

In allocating to father sole decision-making regarding the child’s religious upbringing, the court expanded one parent’s right to the care, custody, and control of a child at the expense of the other parent’s similar right. But as a matter of law, this allocation does not alone deny mother’s additional First Amendment rights to influence the child’s religious upbringing during her parenting time or to exercise her own religious beliefs.

Id. at 1219 (citation omitted). The McSoud court then evaluated each of the special advocate’s recommendations impacting the mother’s religious rights through a strict scrutiny lens. See id. at 1219-20.

¶93 Like the court in McSoud, I would evaluate the district court’s decision allocating religious decision-making to Jessica under the best interest standard. And I would turn to strict scrutiny only to evaluate Ryan’s First Amendment claims.

¶94 The majority emphasizes that “Ryan’s loss of legal custody does not mean he is completely bereft of parental rights.” Supra ¶ 48. I agree. A district court’s decision to award legal custody to one parent does not necessarily deprive the other, as the majority frames it, from “the right to be [a] parent.” Supra ¶ 48. I also do not doubt that the right to be a parent includes the right to make major and minor decisions concerning the children’s religious upbringing. But in light of section 30-3-32(2)(b), I cannot agree with the majority’s conclusion that when a district court finds that a divorcing parent will exercise a parental right to harm a child, its decision to allow one parent to call the shots should be subject to strict scrutiny.

¶95 This is especially true in this instance where the district court’s decision is backed by a series of unchallenged factual findings demonstrating that “Ryan’s religious practices . . . represent a direct threat of harm to the children.” Supra ¶ 12 (alteration in original). There is simply no reason that justifies treating a parent’s right to direct the child’s religious upbringing differently than the other fundamental rights a parent has with respect to the child-rights that we have repeatedly allowed a district court to assign to one parent or the other when it is in the child’s best interest.[94]

¶96 This causes me to conclude that strict scrutiny is the wrong test to apply to a court’s decision to allocate decision-making over a child’s religious upbringing, and even all of the small decisions that might support or undercut that decision-making, to a single parent. I would follow the Utah Code and analyze whether the district court found, by a preponderance of the evidence, real or substantiated potential harm to the child if the parent is allowed to participate in the child’s religious upbringing.

¶97 Viewed under the correct test, Ryan cannot show that the district court erred when it assigned the right to make religious decisions for the children to Jessica. The district court found that “Ryan’s religious practices … represent a direct threat of harm to the children.” Specifically, the district court determined that “Ryan wishes to raise [his three young daughters] in a culture that grooms them to be child brides,” as evidenced, in part, by Ryan’s marriages to teenagers. The district court also found that “[t]he Order’s teachings alienate the children from their mother, and ongoing exposure to certain Order teachings would be tantamount to abuse.” The district court further noted concerns about “Ryan’s desire to raise the children in [the Order], to permit and encourage the children to participate in Order extracurricular activities and his earlier insistence on them attending Order schools,” which “lack . . . qualified, licensed teachers” and “[teach] obedience to the ‘Order,’ compliance to Kingston authority figures, and which encourage[] the children to reject outsiders.” Based on these findings-which, again, remain unchallenged-the district court concluded that exposure to Ryan’s religious practices would “jeopardize the health or safety of the children, and [would] cause harm to the children’s welfare.”

¶98 We are presented with an unchallenged factual record that demonstrates that if given the opportunity to influence his children’s religious upbringing, Ryan will harm his children. The evidence in the record-evidence that we are duty-bound to accept as true-reveals that Ryan will harm his children by, among other things, promoting a religious culture that will encourage his daughters to be child brides. That evidence also shows that Ryan will teach his children to obey authority figures who will instruct them to reject people outside the Order-people including their own mother. Against this factual backdrop, the district court did not err when it concluded that Jessica alone should exercise all of the parental rights associated with religion.

II. A District Court’s Order Implicating a Parent’s First Amendment Right Is Subject to Strict Scrutiny

¶99 Part of what seems to be motivating the majority’s concern is the potential overbreadth of the district court’s order. The majority concludes that the district court’s order “[b]arring Ryan from ‘encourag[ing] [the children] to adopt the teachings of any religion'” without Jessica’s consent “is not narrowly tailored to protecting a compelling state interest.” Supra ¶ 71 (second and third alteration in original). The majority states that “[a]s written, the prohibition would prevent Ryan from teaching the children the Lord’s Prayer or encouraging them to adopt the teachings of Islam.” Supra ¶ 70.

¶100 There is absolutely no evidence in the record that Ryan’s objection to the district court’s order is fueled by a desire to read the Quran to his children or to lead them in the Lord’s Prayer. Nor is there any suggestion that such behavior would be interpreted as encouraging the children to adopt religious teachings in violation of the district court’s order. And there is nothing in the record that would allow us to conclude that Jessica would withhold her consent from Ryan doing any of those things. A properly briefed First Amendment challenge would have allowed us to get to the bottom of those questions without needing to rely on speculation and hypotheticals.

¶101 In the absence of a properly briefed First Amendment challenge, I respectfully dissent and would affirm the district court’s order.

http://www.utcourts.gov/opinions/view.html?court=supopin&opinion=Kingston v. Kingston20221222.pdf

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

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[1] Because both parties share the same last name, we refer to Mr. Kingston as Ryan and Ms. Kingston as Jessica throughout the opinion for ease of reading. The use of first names is in no way intended to show disrespect to the parties.

[2] (Citing Prince v. Massachusetts, 321 U.S. 158, 165 (1944).)

[3] Davis v. Davis, 749 P.2d 647, 648 (Utah 1988) (citations omitted).

[4] In re Adoption of K.T.B., 2020 UT 51, ¶ 15, 472 P.3d 843 (“Constitutional issues, including questions regarding due process, are questions of law, and we review the lower court’s conclusions for correctness.” (citation omitted)).

[5] 5 Ryan’s hybrid rights argument does not satisfy the requirement of rule 24 of the Utah Rules of Appellate Procedure that an “argument must explain, with reasoned analysis supported by citations to legal authority and the record, why the party should prevail on appeal.” UTAH R. APP. P. 24(a)(8). Ryan points to “the hybrid exception alluded to in Smith,” referring to Employment Division v. Smith, 494 U.S. 872, 877 (1990), to argue that free exercise claims “brought in conjunction with parental right or free speech claims” are subject to heightened scrutiny. But he does not cite binding caselaw or meaningfully engage with the conflict between various courts about how the language from Smith suggesting a hybrid rights exception should be interpreted. See, e.g., Kissinger v. Bd. of Trs. of Ohio State Univ., 5 F.3d 177, 180 (6th Cir. 1993) (holding that the hybrid rights theory leads to “completely illogical” outcomes and refusing to apply it); Miller v. Reed, 176 F.3d 1202, 1207 (9th Cir. 1999) (recognizing that Smith “excepts a hybrid-rights claim from its rational basis test”). In addition to disagreeing about the existence of a hybrid rights exception, “[c]ourts are . . . divided on the strength of the independent constitutional right claim that is required to assert a cognizable hybrid rights claim.” Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 656 (10th Cir. 2006). Ryan does not sufficiently explain why this court should recognize a hybrid rights exception based on Smith or how it should be applied. He relies almost entirely on the Pennsylvania Supreme Court’s application of the hybrid rights exception in Shepp v. Shepp, 906 A.2d 1165 (Pa. 2006), but does not engage with caselaw suggesting no such exception exists. Instead, he states that even if the hybrid rights exception is not real, free speech alone would be protected here. But he does not develop an independent free speech argument, stating in his reply brief that “[his] free speech arguments are tied to his parental rights and free exercise arguments as part of . . . a hybrid claim.” Ryan’s “failure to provide relevant case law and to develop an argument based on that law leaves us with the task of developing the contours of these important constitutional arguments. We decline to do so.” Ramos v. Cobblestone Ctr., 2020 UT 55, ¶ 49, 472 P.3d 910.

[6] 262 U.S. 390, 399 (1923).

[7] (Quoting Prince v. Massachusetts, 321 U.S. 158, 165 (1944).)

[8] Jones v. Jones, 2015 UT 84, ¶ 21, 359 P.3d 603.

[9] In re Adoption of K.T.B., 2020 UT 51, ¶ 32, 472 P.3d 843 (citation omitted).

[10] Id.

[11] Id. ¶ 59.

[12] Troxel v. Granville, 530 U.S. 57, 65 (2000) (plurality opinion) (quoting Washington v. Glucksberg, 521 U.S. 702, 719 (1997)).

[13] Glucksberg, 521 U.S. at 720.

[14] Troxel, 530 U.S. at 65.

[15] 262 U.S. at 399.

[16] 268 U.S. 510, 534-35 (1925).

[17] 321 U.S. 158.

[18] 406 U.S. 205 (1972).

[19] 321 U.S. at 159.

[20] Id. at 159,162.

[21] Id. at 160-61.

[22] Id.

[23] Id. at 164.

[24] Id. at 165.

[25] Id.

[26] Id. at 165-66.

[27] Id. at 166.

[28] Id. at 168.

[29] Yoder, 406 U.S. at 213-14.

[30] Id. at 207.

[31] Id. at 211.

[32] Id. at 209.

[33] Id. at 214.

[34] Id. at 232.

[35] Id. at 233.

[36] Id. at 236.

[37] Id. at 233.

[38]  494 U.S. 872, 881 n.1 (1990) (quoting Yoder, 406 U.S. at 233).

[39] 2020 UT 51, ¶ 62.

[40] Prince, 321 U.S. at 165 (referring to the right of “parents to give [their children] religious training and to encourage them in the practice of religious belief” (emphasis added)); Yoder, 406 U.S. at 233 (“[T]he court’s holding in Pierce stands as a charter of the rights of parents to direct the religious upbringing of their children.” (emphasis added)).

[41] In re Adoption of K.T.B., 2020 UT 51, ¶ 70.

[42] Id. (citing Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816, 839 (1977)).

[43] Id. ¶ 72 (citing Michael H. v. Gerald D., 491 U.S. 110, 125 (1989) (plurality opinion)).

[44] Smith, 431 U.S. at 845 (footnote omitted) (citation omitted) (internal quotation marks omitted).

[45] In re Adoption of K.T.B., 2020 UT 51, ¶ 70 (citing Smith, 431 U.S. at 839-40).

[46] Id. ¶ 72 (citing Michael H., 491 U.S. at 125).

[47] Id. ¶ 70.

[48] Prince, 321 U.S. at 165; Yoder, 406 U.S. at 233.

[49] Hansen v. Hansen, 2012 UT 9, ¶ 17, 270 P.3d 531 (citation omitted) (distinguishing legal custody from physical custody, the latter of which involves the “right, obligation, and ‘authority to make necessary day-to-day decisions concerning the child’s welfare'” (quoting SANDRA MORGAN LITTLE, CHILD CUSTODY & VISITATION LAW AND PRACTICE § 10.03(3)(b)(i), (iii) (2011))).

[50] See UTAH CODE § 30-3-33(11), (12), & (17).

[51] Hansen, 2012 UT 9, ¶ 17 (citation omitted) (internal quotation marks omitted).

[52] Jones, 2015 UT 84, ¶ 26.

[53] Infra ¶ 78.

[54] Infra ¶ 81.

[55] 2011 UT 42, 258 P.3d 553 (reviewing father’s challenge to district court’s transfer of sole custody from himself to child’s mother).

[56] 2012 UT App 328, 292 P.3d 76 (reviewing father’s challenge to district court’s custody award).

[57] 649 P.2d 51 (Utah 1982) (reviewing father’s challenge to district court’s transfer of custody from himself to child’s mother).

[58] Reno v. Flores, 507 U.S. 292, 303-04 (1993) (emphasis in last sentence added) (citations omitted).

[59] See, e.g.Pater v. Pater, 588 N.E.2d 794, 801 (Ohio 1992) (concluding that “parents’ right to expose their children to their religious beliefs … does not automatically end when they are divorced”).

[60] 131 P.3d 1208, 1217 (Colo. App. 2006).

[61] Id. at 1219.

[62] Id. at 1218.

[63] Id. at 1215 (citing Troxel, 530 U.S. at 57).

[64] Id. (citing Yoder, 406 U.S. 205).

[65] Id. at 1219 (second alteration in original) (citation omitted).

[66] Id.

[67] Id. at 1217.

[68] Id.

[69] Id. at 1216.

[70] Id. at 1217.

[71] Infra ¶ 100.

[72] Infra ¶ 85 n.93.

[73] Black’s Law Dictionary defines “legal custody” as “[t]he authority to make significant decisions on a child’s behalf, including decisions about education, religious training, and healthcare.” Custody, BLACK’S LAW DICTIONARY (11th ed. 2019). See also supra ¶ 47.

[74] Jones v. Jones, 2015 UT 84, ¶ 27, 359 P.3d 603 (quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997)).

[75] Id. ¶ 32.

[76] 574 A.2d 1130, 1140-41 (Pa. 1990) (internal quotation marks omitted).

[77] 163 Cal. Rptr. 79, 82 (Ct. App. 1980).

[78] Jones, 2015 UT 84, ¶ 32.

[79] 574 A.2d at 1140.

[80] 163 Cal. Rptr. at 82.

[81] In re Adoption of K.T.B., 2020 UT 51, ¶ 32, 472 P.3d 843.

[82] See Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (“The goal of granting custody based on the best interests of the child is indisputably a substantial governmental interest for purposes of the Equal Protection Clause.”).

[83] Hansen v. Hansen, 2012 UT 9, ¶ 17, 270 P.3d 531 (citation omitted) (internal quotation marks omitted).

[84] See Jones, 2015 UT 84, ¶ 32.

[85] Zummo, 574 A.2d at 1154-55 (collecting cases).

[86] Eugene Volokh, Parent-Child Speech and Child Custody Speech Restrictions, 81 N.Y.U. L. REv. 631, 719 (2006).

[87] The district court found that although major decisions were a source of conflict, “day-to-day decisions regarding the children appear to be different,” as Ryan and Jessica had been able to “coordinat[e] travel and pick-ups[] and jointly supervis[e] and facilitate[e] their children’s homework and activities . . . with relatively little conflict.”

[88] In re Adoption of K.T.B., 2020 UT 51, ¶ 43. 89 (Emphasis added.)

[89] (Emphasis added.)

[90] I do note, however, that none of the cases the majority relies upon in Part I.A of its opinion involve the kind of dispute at issue in this case, even when that dispute is characterized as broadly as a common custody dispute between divorcing parents. For this reason, these cases d o nothing more than cement the existence of a parent’s fundamental right to participate in the child’s religious upbringing. See Jones v. Jones, 2015 UT 84, 359 P.3d 603 (contemplating whether a child’s grandparents can be given visitation rights against the will of the child’s only surviving parent); In re Adoption of K.T.B., 2020 UT 51, 472 P.3d 843 (addressing a trial court’s denial of a mother’s motion to intervene in the adoption of her daughter to a third party); Troxel v. Granville, 530 U.S. 57 (2000) (examining two grandparents’ petition for visitation with children born out of wedlock); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (restricting a state from prohibiting a parent from teaching her child a language besides English “under the guise of protecting the public interest”); Pierce v. Soc’y of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 534-35 (1925) (deciding that a state law requiring young children to attend public school “unreasonably interfere[d] with the liberty of parents and guardians to direct the upbringing and education of children under their control”); Prince v. Massachusetts, 321 U.S. 158 (1944) (upholding a state law prohibiting children from selling magazines in the evening); Wisconsin v. Yoder, 406 U.S. 205 (1972) (concluding that a state may not compel Amish parents to send their children to high school).

[91] One way to think about this question involves the bundle of sticks metaphor we all learned in law school. Parents possess a bundle of rights, or sticks, with respect to their children. When the state tries to give one of those sticks to a nonparent, or take a stick for itself, strict scrutiny applies. The cases the majority cites in Part I.A of its opinion speak to this situation. See, e.g., Jones, 2015 UT 84; In re Adoption of K.T.B., 2020 UT 51; Pierce, 268 U.S. 510. But when two parents divorce, the district court must determine whether those parents can continue to share the sticks and if not, which parent should possess which stick. As we explain later, we have not applied strict scrutiny review to these decisions.

[92] It bears remembering that the district court will have entered such an order only after “a showing by a preponderance of evidence of real harm or substantiated potential harm to the child.” UTAH CODE § 30-3-32(2)(b). 93 But we hasten to add that the analysis changes if that parent claims that the district court’s restrictions violate his individual First Amendment right. Unlike shared parental rights, a district court cannot compromise those individual rights unless the order can withstand strict scrutiny.

[93] For what it is worth, the Colorado Court of Appeals reads McSoud the way I do. See In re Marriage of Crouch, 490 P.3d 1087 (Colo. App. 2021). The Crouch court explained,

[McSoud] held that by preventing mother from taking the child to her church during her parenting time, the court unconstitutionally restricted mother’s religious rights. And, to the extent the order also required the mother to accompany the child to the father’s church services during her parenting time, it further restricted her religious rights. Because the court was imposing the restrictions, such orders required strict scrutiny. That is, before the court could infringe on the mother’s religious rights, it must show a compelling state interest . . . .

Id. at 1092 (emphases added) (citations omitted). The Crouch court continued, “McSoud expressly rejects the need for strict scrutiny . . . when allocating decision-making responsibility between the child’s parents because, in that context, the court is merely expanding one parent’s fundamental right at the expense of the other parent’s similar right.” Id. (citation omitted).

[94] To be clear, I am not suggesting that divorcing parents cannot share the right to decide their child’s religious upbringing. For example, in Munoz v. Munoz, 489 P.2d 1133 (Wash. 1971) (en banc), the court concluded that where “there is no evidence to support a finding that exposure to two religious beliefs has had, or will have, any adverse effect upon the children,” a trial court’s order prohibiting a noncustodial father from taking his children to his church or to instructional classes sponsored by that church was an abuse of discretion. Id. at 1135-36; see also Murga, 163 Cal. Rptr. at 82 (rejecting a custodial mother’s claim that she had an absolute right to direct the child’s religious upbringing and holding that, absent a clear, affirmative showing that the noncustodial parent’s religious activities would harm the child, the noncustodial parent could not be restrained from exposing the child to his or her religious beliefs and practices).

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My children’s father is a bum. Can he get 50/50 custody awarded?

The question is: I’m a stay at home mom, my BD is always working unreliable and inconsistent hours, he wants 50% custody of our son. Will he be granted 50%? His hours always vary from 4pm 7pm 9pm even 2am at times. 

Understand this: it’s not a matter of what you know to be the facts, it’s whether 1) you can prove the facts; and 2) persuade the court that these facts warrant or require that the court rule in your favor and as you want. 

The court cannot know what you know unless you can prove it to the court itself or persuade the court to believe what you say is true.  

Now if the father’s work schedule is not conducive to an equal physical custody schedule and you can prove that, the court will likely rule against a joint physical custody award. If you believe that all you have to do is tell the court, essentially, “The father’s work schedule is not conducive to an equal custody award,” your odds of succeeding on this issue are slim.* 

*But because you are the woman, there is an inexcusable possibility that the court might purport to find as a matter of “fact” that what you say is true—not because you proved it (you obviously didn’t prove it objectively or by a preponderance of the evidence) but because the court simply does not want to award equal custody, does not intend to award equal physical custody, and will look for any hooks upon which to hang that hat.  

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

https://www.quora.com/Im-a-stay-at-home-mom-my-BD-is-always-working-unreliable-and-inconsistent-hours-he-wants-50-custody-of-our-son-Will-he-be-granted-50-His-hours-always-vary-from-4pm-7pm-9pm-even-2am-at-times/answer/Eric-Johnson-311  

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What can you do if your ex-husband does not want to pay school fees?

What can you do if your husband does not want to pay school fees for his children when you are divorced? 

First, it is not necessarily a given that a divorced parent must pay for a child’s school fees. I don’t know the law for all jurisdictions, of course, but in the jurisdiction where I practice divorce and family law (Utah), there is no law that expressly requires the parents to share the cost of the child’s school fees. 

Second, in the jurisdiction where I practice divorce and family law (Utah), unless the parents are awarded joint physical custody* of the child(ren), the child support obligor parent (meaning the parent who is obligated to pay child support to the other parent) is not required to pay for anything over and above the monthly base child support obligation amount. 

Even when parents are awarded joint physical custody of children, that does not necessarily guarantee that the parents must share the children’s school fees. First, they are fees that a student must pay as a condition of being enrolled in school, but there are many other optional fees that a student may incur but is not required to incur. A joint physical custodial parent in Utah who has a monthly base child support payment obligation is required to do as follows, when it comes to child support obligations other than/in addition to the base monthly Child support amount: 

(3) “Joint physical custody”: 

(a) means the child stays with each parent overnight for more than 30% of the year, and both parents contribute to the expenses of the child in addition to paying child support; 

(See Utah Code section 30-3-10.1(3)(a)) 

Could the phrase “both parents contribute to the expenses of the child in addition to paying child support” be any more ambiguous? It’s hard to imagine how it could be. And yet that is the law in the state of Utah for joint physical custodial parents. So while it is by no means black letter law that joint physical custodial parents in Utah must share the costs of their children’s school fees, it is likely a safe bet that a court would, if the issue arose, order a child support obligor parent to pay, in addition to monthly base child support, a portion (likely half) of a school’s fees that must be paid so that a child can be enrolled in school. 

———— 

*In Utah, joint physical custody does not mean joint equal custody (50/50), it means, “the child stays with each parent overnight for more than 30% of the year,” which means that the child spends no less than 111 overnights with a parent. 

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

https://www.quora.com/What-can-you-do-if-your-husband-does-not-want-to-pay-school-fees-for-his-children-when-you-are-divorced/answer/Eric-Johnson-311  

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Horne v. Horne – 2022 UT App 54 – 60(b) motion to set aside

2022 UT App 54

THE UTAH COURT OF APPEALS

REBECCA A. HORNE, Appellee,

v.

TODD D. HORNE, Appellant.

Opinion

No. 20200845-CA

Filed April 28, 2022

Third District Court, Salt Lake Department

The Honorable Barry G. Lawrence

No. 194905732

Mary C. Corporon and Kristen C. Kiburtz, Attorneys for Appellant

Marco C. Brown and A. Leilani Whitmer, Attorneys for Appellee

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

CHRISTIANSEN FORSTER, Judge:

¶1 Todd D. Horne appeals the district court’s denial of his motion to set aside the stipulated decree of divorce entered in his divorce from Rebecca A. Horne. Because we determine that Todd did not preserve the challenge he raises on appeal, we affirm.

BACKGROUND

¶2 Todd and Rebecca were married in 2014 and have one child together. Rebecca is a lawyer and initiated divorce proceedings based on allegations that Todd sexually assaulted her while she was sleeping. According to Rebecca, Todd admitted to her that he had done this on several occasions.

¶3 According to Todd, between June and September 2019, as the parties were contemplating divorce, Rebecca told him “multiple times that she intended to report him to authorities and that he would be charged criminally for felony sexual assault, that his name would be listed on the sex offender’s registry, that he would lose his job and his reputation along with it, and that he would go to jail or prison … if he contested at all what she wrote in the divorce documents.” Rebecca filed for divorce on September 27, 2019. Todd hired an attorney on October 15, and that day, the attorney filed an appearance with the court. According to Todd, Rebecca was “livid” when she learned he had hired an attorney. That same day, Rebecca filed a police report alleging that Todd had sexually assaulted her. According to Todd, Rebecca then “pressured him to sign” the divorce settlement she had drafted and to discharge his attorney. Todd complied. Rebecca then informed the police that she “no longer wish[ed] to pursue criminal charges” and requested that they close the case. The final decree of divorce was signed in November.

¶4 Seven months later, in June 2020, Todd filed a motion in district court to set aside the divorce decree pursuant to rule 60(b)(6) of the Utah Rules of Civil Procedure. The grounds Todd asserted as a basis for setting aside the decree were that Rebecca “extort[ed] and blackmail[ed]” him “until he signed the stipulation, by advising him that she would make and pursue a false police report against him.” He asserted that he agreed to the stipulation only as a result of this “duress” and that the resulting orders in the decree of divorce “as to child custody and as to property division, child support, and alimony were grossly unjust.”

¶5 The district court denied Todd’s motion after determining it was untimely under rule 60(b). Although Todd’s motion had relied on rule 60(b)(6)—“any other reason that justifies relief”—which requires that the motion be filed “within a reasonable time,” the court determined that the reasons Todd actually asserted to justify setting aside the decree fell under rule 60(b)(3)—“fraud … , misrepresentation or other misconduct of an opposing party”—which requires that the motion be filed “not more than 90 days after entry of the judgment or order.” Utah R. Civ. P. 60(b)–(c). Accordingly, because Todd filed his motion more than ninety days after entry of the decree of divorce, the court declined to set it aside. Todd now appeals.

ISSUE AND STANDARD OF REVIEW

¶6 Todd argues that the district court should have determined that his motion was based on rule 60(b)(6) of the Utah Rules of Civil Procedure rather than rule 60(b)(3) because the court’s failure to weigh the equities of the stipulation was an independent ground for relief. “A district court’s determination that a motion is a rule [60(b)(3)] motion rather than a rule 60(b)(6) motion is a conclusion of law, which we review for correctness.” Yknot Global Ltd. v. Stellia Ltd., 2016 UT App 132, ¶ 13, 379 P.3d 36. However, “[w]e generally do not address unpreserved arguments raised for the first time on appeal.” Gowe v. Intermountain Healthcare, Inc., 2015 UT App 105, ¶ 7, 356 P.3d 683.

ANALYSIS

¶7 Rule 60(b) of the Utah Rules of Civil Procedure allows a party to be relieved of a judgment for several different reasons. See Utah R. Civ. P. 60(b). Subsection six of the rule provides that a party may be relieved from a judgment for “any other reason that justifies relief” from the operation of the judgment. Our supreme court has explained that this “catch-all” provision of rule 60(b) “is meant to operate as a residuary clause.” Menzies v. Galetka, 2006 UT 81, ¶ 71, 150 P.3d 480 (quotation simplified). Because rule 60(b)(6) permits a court to relieve a party from judgment only if the party alleges “any other reason justifying relief from the operation of the judgment,” it “may not be relied upon if the asserted grounds for relief fall within any other subsection of rule 60(b).” Id. (quotation simplified); see also id. (“[T]he grounds for relief under 60(b)(6) are exclusive of the grounds for relief allowed under other subsections.”). In fact, rule 60(b)(6) is to be “sparingly invoked and used only in unusual and exceptional circumstances.” Id. (quotation simplified). A movant may not “circumvent[ ] the time limit applicable to motions based on reasons listed in subparagraphs (1), (2), and (3) by repackaging the claim as one under subparagraph (6).” Thompson v. Wardley Corp., 2016 UT App 197, ¶ 18, 382 P.3d 682.

¶8 To the district court, Todd argued that he was “coerced under duress and extorted into signing the settlement documents” and that this “duress” provided a basis under rule 60(b)(6) to be relieved of the custody and property division provisions in the decree. As noted, the district court rejected Todd’s argument and determined that duress fell under rule 60(b)(3). See Utah R. Civ. P. 60(b)(3) (identifying “fraud … , misrepresentation or other misconduct of an opposing party” as a ground supporting a motion to set aside). In other words, his “motion, though ostensibly based on subparagraph (6), was in substance merely a repackaged motion for relief under subparagraph (3).” See Thompson, 2016 UT App 197, ¶ 18, 382 P.3d 682. Todd does not renew his argument that duress falls under rule 60(b)(6).

¶9 Instead on appeal, Todd argues that although Rebecca’s alleged fraud and duress justified setting the decree aside, he also alleged an “independent ground” under rule 60(b)(6), not fully considered by the district court, that would have allowed relief from the decree: that because “the District Court did not comply with its non-discretionary statutory obligation to consider the best interests of the child and the reasonableness and fairness of the property distribution” in signing the stipulated decree, the decree should be set aside. See Utah Code Ann. § 30-3-5(1) (LexisNexis 2019) (outlining the court’s discretion to make “equitable orders relating to the children, property, debts or obligations, and parties” in a decree of divorce); id. § 30-3-10(2) (outlining the court’s responsibility to “consider the best interest of the child” in determining custody and parent-time). Rebecca, however, contends that Todd did not raise this specific argument below and it was therefore not preserved for appellate review. We agree.

¶10 This court’s preservation requirement is well-settled. “An issue is preserved for appeal when it has been presented to the district court in such a way that the court has an opportunity to rule on that issue.” Wolferts v. Wolferts, 2013 UT App 235, ¶ 19, 315 P.3d 448. “To provide the court with this opportunity, the issue must be specifically raised by the party asserting error, in a timely manner, and must be supported by evidence and relevant legal authority.” Id. (quotation simplified).

¶11 Here, the district court was not given the opportunity to rule on the argument Todd now asserts on appeal—that before entering the stipulated decree of divorce, the court failed to exercise its duty to independently assess whether the parties’ stipulation was equitable and provided for the best interests of the child. While Todd did assert below that the custody award was inequitable and not in the child’s best interests, these assertions were framed as the undesirable results of Rebecca’s duress, not as an independent ground for relief under rule 60(b)(6). Todd did not assert, as he now does, that the district court erred in accepting the stipulation without ensuring it was fair and in the best interests of the child. In fact, so far as we can tell, Todd made no mention of district court error, focusing his arguments entirely on Rebecca’s actions.

¶12 In his reply memorandum on the motion to set aside, Todd vaguely stated that “the underlying order represents an extreme departure from the legal norm not otherwise supported by findings as to why such should be the case.” But “a party may not claim to have preserved an issue for appeal by merely mentioning an issue without introducing supporting evidence or relevant legal authority.” Pratt v. Nelson, 2007 UT 41, ¶ 15, 164 P.3d 366 (quotation simplified). This statement—and similar statements peppered throughout his pleadings below—was not specific enough to alert the district court that it needed to consider the court’s own entry of an allegedly inequitable decree as a basis to set aside. In that same reply, Todd broadly discussed a variety of cases where courts had considered grounds to fall under rule 60(b)(6). His discussion included general assertions about fairness, but he never clearly articulated the impact of fairness on the rule 60(b)(6) inquiry. Todd never focused on a specific “independent ground” as a basis to set aside the decree but instead attempted to analogize different aspects of his case to aspects of other cases where rule 60(b)(6) was invoked. To the extent that fairness was discussed, the concept was used to urge the court to be flexible and liberal in granting relief under rule 60(b) and to show that Todd had a meritorious defense as required to prevail under rule 60(b). The arguments about fairness were never articulated in such a way that the court would have understood Todd was asserting that the district court’s own alleged error in accepting an unfair stipulation was an independent ground for relief.

¶13 Additionally, Todd did not support the argument with “evidence and relevant legal authority.” See Wolferts, 2013 UT App 235, ¶ 19, 315 P.3d 448 (quotation simplified). He did not engage in any discussion of the parameters of the court’s obligation to examine a stipulation for fairness or the best interests of the child before adopting its provisions in a decree of divorce. Instead, he asserted that the provisions were unfair as a result of the duress to which he was subjected. Indeed, the primary argument on which Todd focused the district court’s attention was that the decree of divorce should be set aside because it was the result of “duress and blackmail” and that duress should fall under the catchall provision of rule 60(b)(6) rather than the fraud, misrepresentation, or other misconduct provision of rule 60(b)(3).

¶14 Moreover, it is apparent that the district court did not, in fact, understand Todd to be making the argument he now makes on appeal. Cf. Pratt, 2007 UT 41, ¶ 24, 164 P.3d 366 (concluding that even though an argument was untimely and the court did not have the benefit of the other party’s response, it was “preserved for appeal when the district court was given notice of the issue … and when the court in response to such notice made a specific ruling on the issue” (emphasis added)). Instead, the court construed Todd’s arguments about unfairness as a response to Rebecca’s assertion that he lacked a meritorious defense and discussed concerns about unfairness only in the context of addressing that issue.[1]

¶15 In short, simply expressing concerns about the fairness of the decree of divorce and whether it provided for the child’s best interests did not present the “independent ground” of district court error in such a way that the district court had an opportunity to rule on whether any alleged court error justified setting aside the parties’ decree of divorce. See Wolferts, 2013 UT App 235, ¶ 19, 315 P.3d 448. Accordingly, the question of whether that independent ground could support a motion to set aside under rule 60(b)(6) is not preserved for our review.[2]

CONCLUSION

¶16 Because Todd has not preserved the argument he raises on appeal and has not argued that any exception to the preservation rule applies in this case, we decline to review it. We therefore affirm the district court’s determination that the grounds for Todd’s motion to set aside fell under rule 60(b)(3) of the Utah Rules of Civil Procedure and that his motion was therefore untimely.


[1] In addition to asserting that Todd’s motion was untimely, Rebecca argued that he lacked a meritorious defense because he could not prove that the terms of the settlement were unfair.

[2] Todd does not assert that any exception to our preservation rule applies to his argument. See generally State v. Johnson, 2017 UT 76, ¶ 47, 416 P.3d 443 (“When an issue has not been preserved in the trial court, but the parties argue that issue on appeal, the parties must argue an exception to preservation for the issue to be reached on its merits.”).

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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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Child refuses to leave noncustodial parent’s house. What happens now?

I am the noncustodial parent. Our child came to my house for parent-time and now refuses to leave because he wants to live with me. What happens now?

I will answer this question in the context of my experience as a lawyer in the jurisdiction where I practice divorce and family law, which is Utah.

This is a weird area of Utah law because you’ll hear the legislature and the courts tell you that children don’t get to choose where they live, and then when children do that very thing (i.e., refuse to live where the court orders them to live), the courts find themselves essentially powerless to change anything. At least that’s my experience over the 24 years I’ve been in practice.

Now before some of you start licking your lips and scheming, thinking, “I’m the noncustodial parent, but I can change that by simply telling our child to choose to refuse to return to the custodial parent’s house,” you need to be aware of the realities.

If you’re the noncustodial parent and your child or children are under the age of 14 or so, and they claim that they don’t want to live with the custodial parent, there’s a very good chance that the court is going to believe that you are a puppet master who coached the children or otherwise induced or coerced them into claiming they want to live with you. That may not be true, but you’re going to be met with that kind of skeptical presumption. So if you are the noncustodial parent with young children who you assert claim they don’t want to live with the custodial parent, you have an uphill battle ahead of you. If you are the noncustodial parent and a father, you have an almost impossibly uphill battle ahead of you.

If, however, your children are 14 years or older, and you are the noncustodial parent with whom your children say they want to live, it will be harder for your ex and/or the court to presume that the children are lying and/or don’t have good reasons for wanting to live with you. Again, if you are the father making this claim, your claim will be met with more skepticism than if you were the noncustodial mother making such a claim. Why is this? Because there is a pernicious belief in the legal system that fathers are generally worse parents than our mothers, that fathers don’t want custody of their children, and that the only reason fathers would seek custody of their children is to avoid paying child support. As a result of these beliefs, fathers who seek custody of their children are met with not just skepticism, but often derisive skepticism. Forewarned is forearmed.

So, if you are a noncustodial parent who is good and decent, and your child honestly and sincerely comes to you saying, “mom/dad, I can’t stand living with the custodial parent anymore, and I want to live with you,” how do you proceed?

First, if the child refusing to live with the custodial parent because the child just wants to spend more time with you and/or less time with the custodial parent, and the custodial parent is not neglecting or abusing the child in any way, then you as the noncustodial parent have both a legal and moral obligation to talk the child into going back to the custodial parent’s home, or if persuasion doesn’t work, imposing limitations and restrictions and punishments upon the child so that the child won’t get the impression that he or she is in charge. At the same time, the custodial parent needs to acknowledge the child’s desires to spend more time with the noncustodial parent as being a legitimate concern that needs to be addressed and resolved, and that usually means the custodial parent agreeing to give the child and the noncustodial parent more time together. If the custodial parent refuses to do the right thing, you may ask whether it’s wise to petition the court for a modification of the child custody award, so that you and the child get more time together. Unfortunately, odds are that if you file a petition to modify child custody and the only basis for your petition is the child’s desire to spend more time with you, you will probably lose. While it is technically and conceivably possible to win such a petition, usually the courts in Utah require more than just the child’s desire as the basis for a modification. And what form does this “more” take? Typically, you would have to show that the custodial parent is neglecting and/or abusing the child to get a modification of the child custody award.

Second, if the child is refusing to reside with the custodial parent because the custodial parent is truly neglectful and/or abusive, and if you have independently verifiable proof of this, you have the option of petitioning the court to modify the child custody award, changing the custodial parent from your ex to you. While that petition is pending, your child may refuse to return to the custodial parent’s home, and for reasons at least you and the child know to be valid. Whether the court allows your child to stay with you depends upon how your court views the situation and what is best for the child.

If you find yourself in this kind of situation, whether you are the custodial parent or the noncustodial parent, this is one of those situations where you need to seek good legal advice immediately, to help ensure that neither you nor the child is victimized.

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

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New laws from 2019 Utah Legislative Session – Section 30-3-34 – “best parent”?

New laws from 2019 Utah Legislative Session – Section 30-3-34 – “best parent”?

Welcome back to our feature on new laws from the 2019 Utah Legislative Session.

In 2019 the legislature amended section 30-3-34. Some amendments were good, some bad.

One good thing that the legislature did in amending section 30-3-34 is repealing the portion of the statute that previously read, “In awarding custody the court shall consider, among other factors the court finds relevant, which parent is most likely to act in the best interest of the child.” Why, you may ask, would it be good to repeal this? I’ll tell you why. Because it presumed that one parent is more likely to act in the best interest of the child than the other. Why would there be such a presumption? Why must we presume that one parent must be better or worse than the other? Here’s the link to Section 30-3-34.

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

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In re B.T.B. 2018 UT App 157 – termination of parental rights and what is “strictly necessary”

In re B.T.B. 2018 UT App 157

This is from an e-mail I received from the Utah Parental Defenders, a truly good organization that supports attorneys who represent parents when the state petitions to curtail or terminate parental rights in juvenile court. I share it with you for your benefit and for the benefit of any parents you may know who may be facing this kind of problem themselves.

Huge Pro-Family Decision Handed Down by Utah Court of Appeals

Dear Parental Defenders,

We wanted to make you aware of a HUGE decision handed down yesterday by Utah’s Court of Appeals. Our friend and colleague, Rob Latham, secured an incredible victory for Utah’s families, opening the door for the Utah Court of Appeals to disavow the entire “almost automatically” line of cases. These were the cases that determined that where parental unfitness had been established, it was “almost automatically” in the child’s best interest to terminate parental rights.

HIGHLIGHTS

The Court of Appeals determined that although the facts supporting statutory grounds for termination might still support the conclusion that termination was in the child’s best interest, there was no support in statute or in Utah’s Supreme Court case law for a rule requiring interference almost automatically. In re. BTB, 2018 UT App 157, ¶ 22-24.

The Court of Appeals held that the “almost automatically” line of cases disempowered trial court judges from being able to “do equity” and “fashion a remedy that is in the best interest of the child” for cases involving families and children. Id.

The Court of Appeals held that the “strictly necessary” statutory requirement is to be understood “(a)s part of the “best interest” analysis required by the second element of the two-part test, along with all of the other facts and circumstances relevant to the case, trial courts should analyze whether termination of a child’s parent’s rights is “strictly necessary.”  ¶ 54

The words “strictly necessary” are to be given their plain meaning- that courts should “terminate parental rights only in situations when it is absolutely essential to do so. Because this analysis should occur within the context of the “best interest” examination, it should be undertaken from the child’s point of view, not the parent’s ¶ 54

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. “ ¶ 55

We strongly recommend you take the opportunity to [read the case in its entirety], as it is flush with pro-family and pro-parent language that will be useful to all of you in your cases at trial and on appeal. We also encourage you to take a moment to congratulate Rob on the incredible work he put in on this case!

Best,

PDA Board of Directors

 

2018 UT App 157

THE UTAH COURT OF APPEALS

IN THE INTEREST OF B.T.B. AND B.Z.B.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.

V.T.B.,
Appellant,
v.
J.P.B.,
Appellee.

Opinion

No. 20170906-CA

Filed August 23, 2018

Fifth District Juvenile Court, St. George Department

The Honorable Michael F. Leavitt

No. 1142575

  1. Robert Latham, Attorney for Appellant
    LaMar J. Winward, Attorney for Appellee
    Martha Pierce, Guardian ad Litem

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES KATE A. TOOMEY and DAVID N. MORTENSEN concurred.

HARRIS, Judge:

¶1 V.T.B. (Father) appeals the juvenile court’s order terminating his parental rights to his children, B.T.B. and B.Z.B. He contends that termination was not “strictly necessary” in this case, for various reasons. Father’s arguments compel us to directly analyze the meaning of the phrase “strictly necessary,” as used in Utah Code section 78A-6-507(1), and require us to examine how that relatively new statutory admonition fits with the historical two-part test we have long applied in termination of parental rights cases.

¶2 In order to comprehensively answer these questions, we find it necessary to re-examine and disavow some of our case law in this area. Ultimately, we conclude that courts should analyze the “strictly necessary” language as part of the “best interest” element of our historical test, but we emphasize that—partly because of the addition of the “strictly necessary” aspect of the analysis—the “best interest” inquiry should be applied in a more thorough and independent manner than some of our cases might suggest. 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.

BACKGROUND

¶3 Father and J.P.B. (Mother) married in 2010 and divorced in 2013. B.T.B. and B.Z.B. (the Children) are their children. After the divorce, the Children remained in Mother’s custody; they have never been in the custody of the State. Beginning in 2012, Father has periodically been incarcerated for a variety of offenses, largely resulting from drug use. Since the divorce, Father has had only occasional contact with the Children, visiting them a total of fourteen times and sending them infrequent letters and Facebook messages. Father has never paid child support, despite being ordered to do so.

¶4 In March 2017, Mother filed a petition with the juvenile court to terminate Father’s parental rights. As discussed in greater detail below, Utah courts have historically applied a two-part test when considering whether to terminate parental rights: whether statutory grounds for termination are present, and whether termination of the parent’s rights is in the best interest of the affected child. See In re T.E., 2011 UT 51, ¶11 17-18, 266 P.3d 739. At the termination of parental rights hearing, Mother argued that statutory grounds for termination existed because Father had abandoned and neglected the Children, and had made only “token efforts” to communicate with them. Mother argued that it would be in the Children’s best interests for Father’s parental rights to be terminated because it “ripped [the Children’s] hearts out every time” Father went to prison and dropped out of contact, causing significant instability in their lives. Mother also referenced some of our cases that indicate that, when statutory grounds for termination are present, it follows “almost automatically” that it will be in the child’s best interest to terminate the parent’s rights. Although Father did not contest the existence of statutory grounds for termination, he argued that it was not in the Children’s best interests to terminate his rights because he “loves [the Children], loves to be with [the Children], cares about them, [and] wants to protect them,” and because the Children could benefit from having a “strong relationship” with him.

¶5 Father also advanced a separate argument, pointing out that the Utah Legislature modified the relevant statutory language to state that courts may terminate parental rights only if they find termination to be “strictly necessary.” See Utah Code Ann. § 78A-6-507(1) (LexisNexis 2012). Father argued that this statutory modification required the juvenile court to find that termination was “strictly necessary” before terminating his parental rights, and argued that this requirement could not be met unless the termination was required to “free the children for adoption.” Thus, Father asserted that, because Mother’s petition did not anticipate an adoption or any other change in the Children’s living situation, it was not “strictly necessary” to terminate his rights.

¶6 After taking the matter under advisement, the juvenile court issued an order terminating Father’s rights. The court found that several statutory grounds for termination were present. The court further determined that termination of Father’s parental rights would be in the Children’s best interests, because “[t]he Children have not had the opportunity to establish any kind of appropriate parent-child relationship” with Father and because reintroduction of Father into the Children’s lives would likely require “reintroduction therapy,” which the court determined would “not provide the Children the kind of permanency that they need and deserve.” The court “separately” analyzed whether termination of Father’s rights was “strictly necessary,” and rejected Father’s argument that, without a pending adoption, termination could never be “strictly necessary.” The court found it “strictly necessary” to terminate Father’s rights, because Father’s “inconsistent parent time . . . will continue to damage the Children unless they are given a more permanent living situation,” and determined that “such permanency is only available to the Children by terminating” Father’s rights.

ISSUES AND STANDARDS OF REVIEW

¶7 Father appeals the juvenile court’s order terminating his rights. The crux of the appeal is whether the juvenile court correctly applied the “strictly necessary” language to the historical test for termination of parental rights. We review a trial court’s interpretation of a statute for correctness. Holste v. State, 2018 UT App 67, ¶5.

¶8 The ultimate decision about whether to terminate a parent’s rights “presents a mixed question of law and fact.” In re B.R., 2007 UT 82, 112, 171 P.3d 435. In such situations, we review a trial court’s “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 G.B., 2002 UT App 270, 1 11, 53 P.3d 963 (quotation simplified). Indeed, due to the “factually intense nature” of the analysis, a trial court’s final decision regarding termination of parental rights “should be afforded a high degree of deference.” In re B.R., 2007 UT 82, ¶12.

Accordingly, to overturn a trial court’s decision in a termination case, “the result must be against the clear weight of the evidence or leave the appellate court with a firm and definite conviction that a mistake has been made.” Id. (quotation simplified).

ANALYSIS

I.

¶9 A parent’s right to raise his or her child is one of the most precious rights any person enjoys, and is among the fundamental rights clearly protected by our federal and state constitutions. See Troxel v. Granville, 530 U.S. 57, 65-66 (2000). Indeed, the United States Supreme Court has stated that “the interest of parents in the care, custody, and control of their children” is “perhaps the oldest of the fundamental liberty interests” the court recognizes. Id. at 65; see also id. at 66 (citing cases, and stating that “[i]n light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children”).

¶10 For its part, our supreme court has been no less emphatic in its description of the constitutional importance of the rights of parents, declaring that “[a] parent has a fundamental right, protected by the Constitution, to sustain his relationship with his child,” that lilt is fundamental to our jurisprudence that the custody, care, and nurture of the child reside first in the parents,” and that “the interest of parents in their relationship with their children is sufficiently fundamental to come within the finite class of liberty interests protected by the Fourteenth Amendment.” In re J.P., 648 P.2d 1364, 1372 (Utah 1982) (quotation simplified).

¶11 Our legislature has expressed a similar view, making legislative findings that “[u]nder both the United States Constitution and the constitution of this state, a parent possesses a fundamental liberty interest in the care, custody, and management of the parent’s children.” Utah Code Ann. § 62A-4a-201(1)(a) (LexisNexis Supp. 2017); see also id. § 78A-6-503(1) (making identical findings). This fundamental liberty interest “does not cease to exist simply because a parent may fail to be a model parent.” Utah Code Ann. § 62A-4a-201(1)(b). Indeed, “[alt all times, a parent retains a vital interest in preventing the irretrievable destruction of family life.” Id.

¶12 Given the constitutional dimension of parental rights, the legal standards for terminating them are strict. Our supreme court has so stated on several occasions, emphasizing that “[t]he termination of parental rights is a drastic measure that should be resorted to only in extreme cases, when it is clear that the home is unable or unwilling to correct the evils that exist.” In re A.H., 716 P.2d 284, 287 (Utah 1986); see also In re Castillo, 632 P.2d 855, 856 (Utah 1981) (stating that “it is not our view . . . that the termination of parental rights can be decreed without giving serious consideration to the prior and fundamental right of a parent to rear his [or her] child”); In re Baby Girl Marie, 561 P.2d 1046, 1048 (Utah 1977) (stating that “[t]he permanent termination of all parental rights is one of the most drastic actions the state can take”).

¶13 Under the test established by our legislature and our supreme court, parental rights can be terminated only if both elements of a two-part test are satisfied. First, a trial court must find that one or more of the statutory grounds for termination are present. See In re A.C.M., 2009 UT 30, 91 23, 221 P.3d 185. In the current statute, these statutory grounds are listed in Utah Code section 78A-6-507, and include things such as abuse, neglect, and abandonment. See Utah Code Ann. § 78A-6-507(1). Second, a trial court must find that “termination of the parent’s rights is in the best interests of the child.” A.C.M., 2009 UT 30, 1 23; see also In re T.E., 2011 UT 51,1 18; Utah Code Ann. § 78A­6-503(12) (stating that, if it finds statutory grounds for termination, “the court shall then consider the welfare and best interest of the child of paramount importance in determining whether termination of parental rights shall be ordered”). The trial court must make both of these findings not merely by a preponderance of the evidence, but by “clear and convincing evidence,” see In re T.E., 2011 UT 51, 1 17, and the burden of proof rests with the petitioner, see Utah Code Ann. § 78A-6­506(3) (LexisNexis 2012).

¶14 Each part of this test is important. Indeed, our supreme court once rejected, as unconstitutional, legislative efforts to remove the first part of the test—the one that requires the presence of parental unfitness (or similar ground) before termination occurs. See In re J.P., 648 P.2d at 1374-75. At issue in that case was a 1980 statute that eliminated all statutory grounds for termination, and reduced the test simply to whether “such termination will be in the child’s best interest.” Id. at 1368. Our supreme court held that statute unconstitutional, stating that “termination of parental rights solely on the basis of the child’s best interest and without any finding of parental unfitness, abandonment, or substantial neglect, violates the parent’s [constitutional] liberty rights.” Id. at 1375. The court rejected the State’s argument, in defense of the statute, that “any distinction (between the best interest and unfitness standards) is a mere matter of semantics.” Id. at 1368 (quotation simplified). The court emphasized that the test for termination of parental rights properly contains both elements, explaining that “[t]he best interest of the child has always been a paramount or ‘polar star’ principle in cases involving termination of parental rights,” and is “a vital ingredient in a determination that has at least two elements,” but that “no court is warranted in applying the ‘polar star principle’ until after evidence of unfitness is present. Id. (quotation simplified).[1]

¶15 Indeed, our supreme court has never endorsed any watering-down of the two-part test for termination of parental rights. That court has always articulated a test comprised of two distinct, rigorous parts, each of which must be satisfied before parental rights can be terminated. See In re T.E., 2011 UT 51, 191 17-18; In re A.C.M., 2009 UT 30, 1 23; see also In re J.P., 648 P.2d at 1368 (rejecting the argument that there was only minimal distinction between the two elements of the test). The court must find that one of the statutory grounds (e.g., abuse, neglect, abandonment) is present, and that termination of parental rights is in the best interest of the child.

¶16 And, at least not in recent years (the 1980 episode notwithstanding), our legislature has not attempted to weaken the two-part test either. The statutory scheme currently requires the presence of one or more grounds for termination, such as abuse, neglect, or abandonment, see Utah Code Ann. § 78A-6-507(1)(a)-(i), and, in addition, twice instructs courts that, even where statutory grounds are present, they must still “consider the welfare and best interest of the child of paramount importance in determining whether termination of parental rights shall be ordered,” see id. § 78A-6-503(12); see also id. § 78A­6-506(3) (stating that, after the petitioner has established grounds for termination by clear and convincing evidence, “the court shall then consider the welfare and best interest of the child of paramount importance in determining whether termination of parental rights shall be ordered”).

¶17 Moreover, in 2012 the legislature inserted new language into section 507, stating that a court may terminate parental rights only “if the court finds [termination] strictly necessary.” See Utah Code Ann. § 78A-6-507(1). We must here decide what that additional language means and how it fits with the historical two-part test, but it is obvious from the language used (“strictly necessary”) that the legislature was not attempting to make it easier for courts to terminate parental rights.

¶18 Thus, every indication from our legislature and our supreme court demonstrates that our law has had, and continues to have, a rigorous test that does not permit termination of a parent’s fundamental constitutional right to parent his or her child unless both (a) statutory grounds for termination are present, and (b) termination is in the best interest of the child.

II.

¶19 Since the 2012 statutory amendment, we have mentioned the “strictly necessary” language on a number of occasions,[2] but we have not provided definitive guidance on whether, and how, the “strictly necessary” statutory addition affected the historical two-part test for termination of parental rights. Given the questions raised in Father’s appeal, we must address these issues. In order to do so comprehensively, we must examine not In re B.T.B. only the statutory language in question (“strictly necessary”), but also some of our case law that is inconsistent with the statutory language.

¶20 In contrast to our supreme court and our legislature, this court has developed a line of cases that has gradually but meaningfully diluted the second (“best interest”) element of the two-part test. This court stated as far back as 1988 that satisfaction of

[t]he second prong of the objective abandonment test, whether the parental disregard led to the destruction of the parent-child relationship, satisfies the need separately to consider the best interest of the child. If the parent-child relationship has been destroyed by the parent’s conduct, or lack of conduct, it is usually in the best interest of the child to terminate that relationship . . . .

In re J.R.T., 750 P.2d 1234, 1238 (Utah Ct. App. 1988) (emphasis added). Although the applicability of that statement could be interpreted to be limited to cases in which a parent’s rights were terminated as the result of abandonment, over time, in some of our cases.[3] we have extended this concept to other types of termination cases, and categorically declared that “where grounds for termination are established, the conclusion that termination will be in a child’s best interest follows almost automatically.” See, e.g., In re G.J.C., 2016 UT App 147, ¶ 25, 379 P.3d 58 (emphasis added) (quotation simplified); see id. (applying the concept in an unfitness case, and also stating that “[i]t is an unusual case where grounds for termination are found but termination is held not to be in the child’s best interest”).[4]

¶21 In these cases, we have emphasized that exceptions to this rule are rare. Indeed, we have recognized “unusual” situations in only two cases: (1) where a parent sought relinquishment of his or her own rights in an effort to avoid child support obligations, and in such cases we acknowledged that it may be in the child’s best interest from a financial standpoint to keep the parent on the hook, see In re B.M.S., 2003 UT App 51, 11 19-20, 65 P.3d 639; and (2) where the child in question was old enough to express a meaningful preference and objected to the termination, see In re D.R.A., 2011 UT App 397, ¶115, 19, 266 P.3d 844. Although our case law certainly leaves the door open for the recognition of other exceptional situations, we have not yet recognized any, and we have repeatedly emphasized that, once a court finds a statutory ground for termination, it will almost always follow from that conclusion that it is in the child’s best interest to terminate parental rights.

¶22 Certainly, statutory grounds can inform the “best interest” inquiry; indeed, in many cases, the facts supporting the conclusion that statutory grounds for termination are present might also support the conclusion that it is in the child’s best interest for the parent’s rights to be terminated. See In re J.D., 2011 UT App 184, 1 33 n.1, 257 P.3d 1062 (Orme, J., concurring) (stating that “it may be that something of a sliding scale exists,” and that more weighty grounds for termination might more easily lead to the conclusion that termination is in the child’s best interest). For example, it may follow from a finding that a parent has violently or sexually abused his or her child that it is in the best interest of the child to terminate the parent’s rights. But there is no support in statute or in Utah Supreme Court case law for a rule requiring such an inference “almost automatically” in every case and, in addition, our development of this principle has created a number of unfortunate problems in our law.

A

¶23 The first problem with essentially merging the “best interest” inquiry into the “statutory grounds” inquiry is that we have removed a useful—and perhaps constitutionally required[5]— tool from our trial judges’ toolkits. In the course of hearing all of the evidence in the case, the trial judge gets to know the family in question—she can hear the parent speak, listen to the caseworker’s observations, sometimes even hear from the child (or at least a guardian ad litem), and learn more than an appellate court can about the details of the family dynamics at play. In family and domestic cases, our law grants trial judges wide latitude to make factual findings and to craft solutions for families and children that make the most sense in the particular situation. See Harmon v. Harmon, 491 P.2d 231, 232 (Utah 1971) (stating that “[i]n order to carry out the important responsibility of safeguarding the interests and welfare of children, it has always been deemed that the courts have broad equitable powers”). In short, we allow trial judges in family cases to do equity, and the touchstone of that equitable inquiry is to fashion a remedy that is in the best interest of the child. Our “almost automatically” line of cases disempowers trial judges to do equity— to act in the best interest of the child—in cases involving families and children.[6]

B

¶24 The second problem with our “almost automatically” line of cases is that it functionally shifts part of the burden of proof in termination cases, at least on the “best interest” element, from the petitioner (the Utah Division of Child and Family Services (DCFS) or a private party, often another parent or stepparent) to the parent whose rights are at issue. Our legislature has been clear that, in termination cases, trial courts “shall in all cases require the petitioner to establish the facts by clear and convincing evidence.” See Utah Code Ann. § 78A-6-506(3). We have often articulated this legal principle, see, e.g., In re R.A.J., 1999 UT App 329, 1 16, 991 P.2d 1118 (stating that “[t]he burden of proof on the issue of what is in the best interest of the child is upon the petitioner in a termination of parental rights case”), but we have not always implemented it this way in practice. Two cases are illustrative.

¶25 In In re A.M.O., 2014 UT App 171, 332 P.3d 372, the child’s stepmother petitioned to adopt the child and to terminate the parental rights of the child’s mother. Id. II 2, 3, 7. The mother “struggled with drug addiction,” had been incarcerated for lengthy periods, and had “no meaningful contact” with the child. Id. 1 4. Based on these facts, the trial court found that the mother had abandoned the child, and no party challenged that finding on appeal. See id. But the trial court denied the stepmother’s petition to terminate the mother’s parental rights, because the trial court found that the stepmother had not carried her burden to demonstrate that termination was in the child’s best interest. Id. 1 6. Specifically, the trial court “stated that it had heard ‘very little evidence’ on the issue of best interest and had not heard testimony from any therapist indicating how [the child] understood his relationship with [the mother].” Id. In the end, the trial court declared that “it had not heard evidence that would convince the court that it would be in [the child’s] best interest to terminate [the mother’s] parental rights.” Id. (quotation simplified).

¶26 The trial court’s determination—that the stepmother had not carried her burden of proof that termination was in the child’s best interest—was supported with reasoned analysis, but we did not affirm it. Instead, we cited our “almost automatically” case law, id. 1 20, and explained that the trial court did not make an independent finding that “this is one of those rare cases where termination is not in the best interest of the child despite the existence of grounds for termination,” and did “not explain why the two requirements for termination are not satisfied hand-in-glove,” id. ¶ 22. We determined that the court’s findings were therefore “conclusory” and “inadequate,” id. ¶¶ 21-22, and reversed the trial court’s order denying the petition, and remanded the case for additional findings, id. ¶ 23.

¶27 This analysis relied too heavily on the “almost automatically” concept. It should have been sufficient for affirmance that the trial court made a reasoned, supported finding that the movant had not carried her burden of proof on the best interest element. Trial courts should not have to make any additional finding that a case is “rare” or “unusual” in order to determine that a parent’s rights should not be terminated. By imposing this additional requirement, we have placed a burden on the parent whose rights are at issue to come forward at the termination hearing with some evidence demonstrating that the case is “rare” or “unusual.” (Certainly, the petitioner (e.g., DCFS) will not have an incentive to bring any such evidence to the trial court’s attention.) And we thereby made it incrementally easier for a petitioner to obtain an order of termination of parental rights.

¶28 Similarly, in In re G.J.C., 2016 UT App 147, a child’s mother sought to terminate the parental rights of the child’s father. Id. ¶10. The parents’ divorce proceedings were
particularly contentious, with the mother at one point obtaining a protective order against the father, and with the father on multiple occasions refusing to return the child after parent-time. Id. 11 3-5. On one occasion, the father attempted to kidnap his parents-in-law in connection with a parent-time exchange, at one point even threatening them with a handgun. Id. ¶ 7. The father eventually pled guilty to attempted kidnapping, and served prison time. Id. ¶ 9. Later, after the termination trial, the court made “careful[] and thorough[]” findings about the reasons for termination, finding five different statutory grounds to terminate the father’s rights. Id. 19.

¶29 However, the trial court “concluded that [the mother] failed to meet her burden” of demonstrating that termination of the father’s rights was in the best interest of the child. Id. 91 23. As described in our opinion, the trial court offered five separate reasons why the mother had not met her best-interest burden, including the “lack of another person to step in to the role” as the child’s father, the lack of evidence that the child had been harmed by his relationship with the father, and the positive role that the father’s extended family played in the child’s life. Id. We quoted the trial court as finding that “this child could benefit from a positive, loving, nurturing relationship with his extended family,” and that it was “possible” for the child to have that kind of relationship with his father also. Id. The court therefore denied the mother’s petition to terminate the father’s parental rights. Id.

¶30 Despite the trial court’s determination that the mother had not met her burden of proof, we reversed the trial court’s decision not to terminate the father’s parental rights, concluding that the court’s best interest determination was “against the clear weight of the evidence.” Id. 133. As we did in In re A.M.O., we cited our “almost automatically” case law, id. 11 25, and determined that the trial court’s findings regarding statutory grounds for termination could “support only a best-interest determination that termination is appropriate,” id. ¶ 32 (quotation simplified).

¶31 It is evident that our “almost automatically” case law has, subtly but meaningfully, shifted the burden of proof in termination of parental rights cases, and has imposed a burden on parents whose rights are at issue to bring forth evidence demonstrating that their case is a “rare” or “unusual” case in which, despite the presence of statutory grounds for termination, it is nevertheless in the child’s best interest not to terminate. Such burden-shifting is contrary to statutory command. See Utah Code Ann. § 78A-6-506(3).

C

¶32 Finally, we also conclude that our “almost automatically” case law is inconsistent with the relatively new statutory language that allows termination of parental rights only when it is “strictly necessary” to do so. Utah Code Ann. § 78A-6-507(1).

¶33 The parties advance various theories about the meaning of the “strictly necessary” language. Father contends that the language was intended to add a third element—a “new and distinct statutory requirement” — to the termination of parental rights test, so that a court considering termination would be required to make a specific finding as to the strict necessity of its decision in addition to finding both grounds for termination and that termination would be in the child’s best interest. In contrast, the guardian ad litem contends that the “strictly necessary” language is completely prefatory—essentially meaningless introductory language—and that it does not affect the test at all. For her part, Mother contends that the language did not add a third element to the termination test, but was instead meant to be analyzed as part of the “best interest” element of the test.[7]

¶34 We discuss the meaning of the “strictly necessary” language more fully later in this opinion. For now, it suffices to note that the only one of these three interpretations that is even potentially consistent with our “almost automatically” line of cases is the interpretation advanced by the guardian ad litem—that the language is simply prefatory and carries no substantive meaning whatsoever—and to explain that we find this argument unpersuasive.

¶35 As a general matter, courts “avoid interpretations that will render portions of a statute superfluous or inoperative.” See Hall v. Utah Dep’t of Corr., 2001 UT 34, 1 15, 24 P.3d 958; see also State v. Maestas, 2002 UT 123, 1 52, 63 P.3d 621 (stating that “when reading the statutory language, our purpose is to render all parts of the statute relevant and meaningful” (quotation simplified)). In this instance, however, the guardian ad litem asserts that the legislature specifically intended the “strictly necessary” language to be a prefatory “statement of policy” that “does not create new rights and obligations.” Our supreme court has stated that, where statutes contain “a statement of legislative purpose,” a “preamble,” or a “declaration of policy,” such language “provide[s] guidance to the reader as to how the act should be enforced and interpreted, but [it is] not a substantive part of the statute.” See Price Dev. Co. v. Orem City, 2000 UT 26, 1 23, 995 P.2d 1237 (quotation simplified).

¶36 The guardian ad litem’s argument fails in this case, for one simple reason: the “strictly necessary” language does not appear in a statutory preamble or statement of legislative policy. See Westly v. Board of City Comm’rs, 573 P.2d 1279, 1280 (Utah 1978) (interpreting a section of a statute that was specifically designated as a “declaration of policy,” and concluding that it was not a substantive part of the statute (quotation simplified)). Instead, the “strictly necessary” language appears prominently in the first subsection of the “grounds for termination” statute, and states that “if the court finds strictly necessary, the court may terminate all parental rights . . . if the court finds any one” of the statutory grounds for termination to be present. See Utah Code Ann. § 78A-6-507(1). This statutory subsection is not a preamble or specifically-identified “statement of policy”; rather, it is a substantive portion of the statute. There is therefore no indication in the statute itself that the “strictly necessary” language was intended to be part of a separate non-substantive preamble or policy statement.[8]

¶37 Because we conclude that the words “strictly necessary” are not merely prefatory and therefore must have substantive meaning, it necessarily follows that those words are inconsistent with case law declaring that termination of parental rights follows “almost automatically” upon a finding that statutory grounds are present. If the words are to have substantive meaning, it cannot be that parental rights are to be terminated “almost automatically” once a court has determined that a statutory ground for termination exists.

¶38 For all of these reasons, we consider the “almost automatically” line of cases highly problematic. It lacks any constitutional, statutory, or Utah Supreme Court support, has led to several practical problems in its implementation, and is inconsistent with the statutory language permitting termination of parental rights only when “strictly necessary.”

III

¶39 We recognize, of course, that our concerns about the “almost automatically” line of cases do not necessarily mean that we should disavow it. The determination as to whether a line of cases should be overruled is governed by the principle of horizontal stare decisis, by which “one panel on the court of appeals owes great deference to the precedent established by a different panel on the court of appeals.” State v. Legg, 2018 UT 12, ¶ 9, 417 P.3d 592. There are “two broad factors” that we should consider before overruling any precedent: “(1) the persuasiveness of the authority” and the “reasoning on which the precedent was originally based”; and “(2) how firmly the precedent has become established in the law since it was handed down.” See Eldridge v. Johndrow, 2015 UT 21, 1 22, 345 P.3d 553. This second factor “encompasses a variety of considerations, including the age of the precedent, how well it has worked in practice, its consistency with other legal principles, and the extent to which people’s reliance on the precedent would create injustice or hardship if it were overturned.” Id.

¶40 Applying this standard to the case at hand, the first factor weighs heavily in favor of disavowal. As we have explained, the “almost automatically” line of cases is unsupported, and we have set forth several different problems with those cases.

¶41 The second factor also weighs in favor of disavowal. Although superficially it may appear that this line of cases is well-established in the law, having been first introduced in 1988, a close analysis indicates that this precedent is not as firmly established in the law as one might think. Contrary to the guardian ad litem’s argument, our supreme court has never adopted it or even referred to it.[9] As discussed above, our supreme court still appears to apply the original two-part test in termination of parental rights cases, with each part apparently remaining robust. See In re T.E., 2011 UT 51, ¶91 17-18; In re A.C.M., 2009 UT 30, 123. Indeed, on one occasion, that court specifically rejected the argument that “any distinction (between the best interest and unfitness [parts of the test]) is a mere matter of semantics.” See In re J.P., 648 P.2d at 1368.

¶42 Moreover, our “almost automatically” line of cases is also at odds with some of our own case law. For instance, in In re R.A.J., 1999 UT App 329, we affirmed a juvenile court’s decision to deny a petition for termination of parental rights. Id. TT 1, 24. On appeal, the petitioners argued that, once the juvenile court found statutory grounds for termination, it should have presumed “that termination was in the child’s best interests.” Id. ¶21. We rejected that argument because “[t]here is no such presumption in Utah.” Id. Indeed, we stated that if we were to adopt that position, “it would make little sense to employ the two-step analysis required by Utah law” in termination cases. Id. ¶22. We further noted that “[b]oth parts of the analysis are necessary, as required by the statutory arrangement adopted by the Utah Legislature, and both must be proven by those seeking termination of the parent-child relationship.” Id. Neither our decision in R.A.J., nor any of our other cases to speak in similar terms,[10] has ever been overruled or otherwise called into question, and thus there exist contrary lines of case law in our jurisprudence.[11]

¶43 Finally, our precedent has not, in our view, engendered any meaningful “reliance” upon it such that disavowal would “create injustice” or upset litigants’ expectations. One way this principle could come into play in this situation is if the disavowal of our line of cases could allow parents whose rights were terminated thereunder to come back into court and re-litigate the termination issues. For better or for worse, however, our law contains no provision — other than a full-scale re-adoption — permitting a parent whose rights have been terminated to regain those rights. See Utah Code Ann. § 78A-6­513(1) (LexisNexis Supp. 2017) (stating that a termination order “divests the child and the parents of all legal rights, powers, immunities, duties, and obligations with respect to each other, except the right of the child to inherit from the parent”); see alsoid. § 78A-6-514(4) (LexisNexis 2012) (stating that even a “voluntary relinquishment or consent for termination of parental rights . . . may not be revoked”). Any rule we might announce regarding disavowal would apply only prospectively, and would not allow, for instance, the parents whose rights were terminated in A.M.O. and G.J.C. to re-open those cases and thereby upset whatever permanency and stability those rulings fostered. There is therefore no reliance-based reason to shrink from disavowal of our “almost automatically” line of cases.

¶44 For all of these reasons, the principle of stare decisis is no bar to disavowal of our precedent in this area. Accordingly, we disavow our prior cases to the extent they suggest that, once statutory grounds for termination are established, it follows “almost automatically” that termination will be in the best interest of a child, or that it is only in “rare” or “unusual” cases that termination of parental rights will not follow from a finding of statutory grounds for termination.[12]

IV

¶45 We must now address the specific questions raised by the facts of this case, and we do so unconstrained by our “almost automatically” line of cases. First, we examine the “strictly necessary” language in Utah Code section 78A-6-507(1), and determine its meaning. Second, and relatedly, we address the precise question Father raises, namely, whether termination of parental rights can ever be “strictly necessary” if no adoption or other alternative parenting arrangement is contemplated.

Finally, we must consider whether the juvenile court correctly applied governing legal principles to the facts of this case.

A

¶46 As noted earlier, the parties advance three different interpretations of the “strictly necessary” language. We have already rejected the interpretation proposed by the guardian ad litem. We now examine the other two arguments, and in the end we are persuaded, in general, by the interpretation advanced by Mother and (at least at the hearing) endorsed by the juvenile court: that the “strictly necessary” language does not create a separate third element of the test for termination of parental rights but, instead, should be considered as an important part of the “best interest” inquiry.

¶47 The “best interest” test is broad, and is intended as a holistic examination of all of the relevant circumstances that might affect a child’s situation. More than a century ago, our supreme court noted that the concept included examination of “the physical, intellectual, social, moral, and educational training and general welfare and happiness of the child,” and that the best interest of the child, so defined, was the “paramount consideration” in cases involving termination of parental rights. See Harrison v. Harker, 142 P. 716, 719 (Utah 1914) (quotation simplified). As far as we are aware, the breadth of the “best interest” inquiry has never been diminished; indeed, we have recently defined the “best interest” inquiry as a “subjective assessment based on the totality of the circumstances” surrounding the child. See In re G.J.C., 2016 UT App 147, 9I 24.

¶48 Surely a test this broad, and intended to capture all of the relevant facts and circumstances unique to a particular child’s situation, is sufficiently comprehensive to encompass an inquiry into whether termination of a parent’s rights is actually necessary. Indeed, at times, we have spoken in similar terms. See, e.g., In re S.T., 928 P.2d 393, 401 (Utah Ct. App. 1996) (concluding, in the context of applying the two-part test, that “under these difficult circumstances, termination of appellants’ parental rights is necessary”).

¶49 Unfortunately, as discussed herein, we have not always applied the “best interest” test correctly in termination cases. By sometimes effectively collapsing the “best interest” analysis into the “statutory grounds” analysis through our “almost automatically” line of cases, we have unnecessarily narrowed the best interest test and deprived it of some of its vitality. Given the existence of our “almost automatically” line of cases, it is no wonder that some attorneys (including Father’s attorney) have, in recent years, argued for the “strictly necessary” language to be construed as creating a new, third element of the termination test. But there is no need to view it this way, so long as the “best interest” element is applied independently. See In re J.P., 648 P.2d at 1368 (stating that “[t]he best interest of the child has always been a paramount or ‘polar star’ principle in cases involving termination of parental rights”).

¶50 We therefore conclude that, as part of the “best interest” analysis required by the second element of the two-part test, along with all of the other facts and circumstances relevant to the case, trial courts should analyze whether termination of a child’s parent’s rights is “strictly necessary.”

¶51 In terms of what “strictly necessary” actually means, the phrase is not defined in the relevant statutory section. If it were, “we would of course look there first.” See O’Hearon v. Hansen, 2017 UT App 214, ¶ 24, 409 P.3d 85. Because it is not defined in the statute, and because we are unaware of any specialized meaning of the phrase that ought to apply, we must interpret the statutory language “according to the plain meaning of [its] text.” See Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 9, 248 P.3d 465 (quotation simplified).

¶52 As a “starting point” toward ascertaining legislative intent from plain language, we look to dictionary definitions of the words the legislature used. See State v. Bagnes, 2014 UT 4, 1 14, 322 P.3d 719. All dictionaries that we consulted, or that were brought to our attention during this case, define “necessary” in terms of being “needed,” “absolutely needed,” or “essential.” See, e.g., Necessary, Cambridge Dictionary, http://dictionary.cambridge.org/us/dictionary/englis h/necessary [https://perma.cc/2NNR-KKRM] (“needed in order to achieve a particular result”); Necessary, English Oxford Living Dictionaries, http://en.oxforddictionaries.com/definition/ necessary [https://perma.cc/555C-DJ4S] (“needed to be done, achieved, or present; essential”); Necessary, Merriam-Webster, www.merriam-webster.com/dictionary/necessary
[https://perma.cc/K67R-DA6L] (“absolutely needed”); Necessary, Webster’s Third New Int’l Dictionary 1510-11 (1993) (“that cannot be done without; that must be done or had; absolutely required; essential, indispensable”).

¶53 Adding the modifier “strictly” in front of “necessary” strengthens the phrase; indeed, the word “strictly” is commonly defined as “completely” or “entirely,” or “with no exceptions.” See, e.g., Strictly, Cambridge English Dictionary, dictionary.camb ridge.org/us/dictionary/english/strictly [https://perma.cc/Y7MT-SDWM] (“completely or entirely”); Strictly, English Oxford Living Dictionaries, en.oxforddictionaries.com/definition/strictly [https://perma.cc/P9XQ-ZLSD] (“with no exceptions; completely or absolutely”); Strict, Merriam-Webster, www.merriam-webster.com/dictionary/strict             [https://perma.cc/3YQT-TKDS]
(“inflexibly maintained or adhered to”); Strictly, Webster’s Third New Int’l Dictionary 2261 (1993) (“without latitude”).

¶54 Accordingly, when we give the words “strictly necessary” their plain meaning, we understand that the legislature intended for courts to terminate parental rights only in situations when it is absolutely essential to do so. Because this analysis should occur within the context of the “best interest” examination, it should be undertaken from the child’s point of view, not the parent’s. A court should not ask whether termination is strictly necessary to further an objective of one of the parents; instead, courts should ask whether it is absolutely essential to the child’s best interest that a parent’s rights be permanently severed.

¶55 The “best interest” inquiry requires courts to examine all of the relevant facts and circumstances surrounding the child’s situation, not just the specific statutory grounds for termination. In particular, and as the juvenile court here recognized, 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, especially those in which grandparents or other family members have (or are willing to) come forward to care for the child, courts should consider whether other less-permanent arrangements (for instance, a guardianship with a family member) might serve the child’s needs just as well in the short term, while preserving the possibility for rehabilitation of the parent-child relationship in the longer term. In many cases, children will benefit from having more people—rather than fewer — in their lives who love them and care about them, and if there is a practical way to keep parents involved in the children’s lives that is not contrary to the children’s best interests, a court should seriously consider such an option. See In re A.H., 716 P.2d at 287 (stating that “[t]he termination of parental rights is a drastic measure that should be resorted to only in extreme cases”). As discussed above, a parent’s right to raise her child is a fundamental right, and although courts must view the “best interest” element from the perspective of the child, in so doing courts should not forget the constitutional dimension of the parental rights on the other side of the ledger. See In re Castillo, 632 P.2d at 856 (stating that “it is not our view . . . that the termination of parental rights can be decreed without giving serious consideration to the prior and fundamental right of a parent to rear his [or her] child”).

B

¶56 We are not persuaded, however, by Father’s argument that it can never be “strictly necessary” to terminate a parent’s rights if no pending adoption or similar change in the child’s permanent living situation is contemplated. Whether an adoption is pending is but one of many circumstances that a trial court must consider in determining whether termination of a parent’s rights is in the child’s best interest. See In re J.D., 2011 UT App 184, 1[ 23 (stating that “a child’s adoption status is only one factor to consider in the determination of the best interests of the children” (quotation simplified)). We certainly acknowledge that the absence of any proposed change in the child’s custody or living situation is a factor that may weigh against termination in some cases, including this one. See id. (stating that the juvenile court in that case had correctly “[a]cknowledg[ed] that the lack of an adoptive placement weighed against” termination). But the absolute rule that Father advances—that termination can never be “strictly necessary” without a pending adoption, no matter whatever other circumstances are present—goes too far.

¶57 Indeed, it is not at all difficult to imagine situations in which a parent’s actions toward the child are so abusive that it would be in the child’s best interest to terminate the parent’s rights, irrespective of the child’s prospects for another long-term living situation. See, e.g., In re J.A., 2018 UT App 29, 11 15, 21 (a juvenile court terminated a parent’s rights after finding, in a child abuse case in which the child suffered a brain injury, that the parent had severely abused one of the children, even though no change in the children’s custody situation was contemplated).

Accordingly, we cannot interpret the phrase “strictly necessary” in the manner Father urges.

C

¶58 Having clarified the contours of the termination of parental rights test, we finally turn our attention to whether the juvenile court correctly applied that test in this case. Father does not contest the existence of statutory grounds for termination of his parental rights, but argues that the juvenile court erred by determining that termination of his rights was in the Children’s best interests or strictly necessary. Father spends much of his energies asserting that it can never be “strictly necessary” to terminate a parent’s rights if there is no contemplated change in the affected child’s living situation, an argument we have already rejected, along with his argument that the “strictly necessary” language was intended to create a separate third element to the test for termination of parental rights.

¶59 However, given our holding that the “strictly necessary” analysis is properly part of the “best interest” element, we construe Father’s arguments regarding “strictly necessary” as a challenge to the juvenile court’s conclusion that termination of his rights was in the Children’s best interests. And although the juvenile court was on the right track for much of its “best interest” analysis, at one point even stating that it “struggle[d] with” the “almost automatically” language, its examination of the issues was framed by a test we have herein clarified and reformulated.[13]

¶60 For these reasons, we think it best to vacate the juvenile court’s termination order, and remand the case for reconsideration in light of this opinion. We do not, however, make any effort to urge the juvenile court to reach one conclusion or another upon reconsideration. We instruct the juvenile court to reconsider the “best interest” portion of the termination test, and to do so in keeping with the principles set forth herein, and without constraint from the “almost automatically” line of cases. We leave it to the juvenile court to determine whether a new evidentiary hearing is necessary, or whether it can adequately reassess “best interest” based on the evidence previously presented, aided by additional briefing and/or oral argument.

CONCLUSION

¶61 A parent’s right to raise his or her child is a fundamental right guaranteed by the federal and state constitutions. Our line of cases holding that termination of parental rights should follow in all cases “almost automatically” if one or more of the statutory grounds for termination of parental rights is present was ill-advised, unsupported by statute or case law, and in tension with the constitutional rights of parents. For the reasons set forth herein, we disavow that line of cases.

¶62 The test for termination of parental rights has two parts, and the second part—that termination of parental rights must be in the best interest of the affected child —must be considered on its own merits, separate from whether statutory grounds for termination are present. In considering the “best interest” element, trial courts should think carefully about whether termination of parental rights is “strictly necessary,” including whether other options short of termination exist that might adequately address the family’s issues.

¶63 Because we have disavowed a line of our cases and clarified the test for termination of parental rights, we vacate the juvenile court’s termination order, and remand this case to the juvenile court for further proceedings consistent with this opinion.

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

[1] On another occasion, our supreme court suggested — although it stopped short of deciding—that the second (“best interest”) part of the test might also be “constitutionally required.” See In re R.B.F.S., 2011 UT 46, ¶ 7 n.6, 258 P.3d 583. There, the court “note[d] that some courts have suggested that a best interests analysis may be constitutionally required before a child’s familial relationships can be terminated.” Id. (citing cases and authorities).

 

[2] See, e.g., In re K.W., 2018 UT App 44, ¶9I 29-31, 420 P.3d 82; In re B.A., 2017 UT App 202, ¶ 21, 407 P.3d 1053; In re P.B., 2017 UT App 82, ¶ 6, 397 P.3d 850; In re D.L., 2014 UT App 297, TT 3, 6, 342 P.3d 291; In re C.J., 2013 UT App 284, ¶8, 317 P.3d 475.

[3] As we discuss later in this opinion, see infra 42 & n.10, this court has been inconsistent in this area. Indeed, on one occasion, we specifically rejected the argument that a court should presume termination to be in the best interest of a child, if statutory grounds for termination are present. See In re R.A.J., 1999 UT App 329, ¶¶ 21-22, 991 P.2d 1118.

 

[4] Although Mother cited the “almost automatically” cases to the juvenile court, in her memoranda as well as at the hearing, no party cited or discussed those cases in their initial briefs filed on appeal. After oral argument, however, we invited supplemental briefing on various questions, including whether “this appeal can, in whole or in part, be resolved by resort to” our “almost automatically” line of cases, and whether “we ought to consider overruling or disavowing” that line of cases. The parties each filed supplemental briefs, with Father arguing that we should disavow those cases, and Mother and the guardian ad litem each arguing that we should apply those cases to affirm the juvenile court’s decision in this case.

[5] See supra ¶ 14 n.1 (citing In re R.B.F.S., 2011 UT 46, ¶ 7 n.6, and noting that “some courts have suggested that a best interests analysis may be constitutionally required before a child’s familial relationships can be terminated”).

[6] The availability of this equitable tool is important in all cases in which a movant seeks to terminate a parent’s rights, but perhaps especially so in cases involving private petitions (filed by someone other than the Utah Division of Child and Family Services (DCFS)) seeking to terminate the rights of a non­custodial parent. In many (but not necessarily all) cases in which DCFS seeks to terminate the rights of a custodial parent, that parent will likely have been offered (and not successfully taken advantage of) reunification services. See Utah Code Ann. § 78A­6-312(2)(b) (LexisNexis Supp. 2017) (stating that “[w]henever the court orders continued removal” of the child from the home, “the court shall first . . . determine whether . . . reunification services are appropriate”). In private cases where a petitioner seeks to terminate the rights of a non-custodial parent, by contrast, no statute requires the court to even consider whether to implement reunification services, and often no infrastructure is in place through which to offer any such services in any event. A rigorous “best interest” analysis sometimes presents the only meaningful opportunity that parents have to demonstrate to the court that, despite the existence of a statutory ground for termination, they have been recently engaged in significant efforts to improve their lives and remedy their past issues.

 

[7] During oral argument, the juvenile court appeared to espouse this third interpretation, stating that it considered the “strictly necessary” language to be “tied to the best interest analysis” and intended to require trial judges to ask themselves if “there is another feasible option here?” However, in its written ruling, the court ended up analyzing “strictly necessary” as a stand-alone third element.

[8] Moreover, even if the language could be considered part of a non-substantive statutory statement of policy, such statements still “provide guidance to the reader as to how the act should be enforced and interpreted,” and can be “used to clarify ambiguities.” See Price Dev. Co. v. Orem City, 2000 UT 26, ¶ 23, 995 P.2d 1237. Even if construed as a “prefatory” statement of policy, the “strictly necessary” language still strikes us as inconsistent with a body of case law that declares termination of parental rights to follow “almost automatically” from a finding that statutory grounds for termination exist.

[9] The guardian ad litem asserts that the Utah Supreme Court has endorsed the “almost automatically” concept, and directs our attention to In re B.R., 2007 UT 82, 171 P.3d 435. We disagree with the guardian ad litem’s reading of that case. The opinion in B.R. contains no mention of or citation to any of our “almost automatically” cases. Moreover, the fact-bound holding of In re B.R. —reversing our decision to overturn a juvenile court’s termination order—cannot be construed as supporting the general notion that, once grounds for termination are adjudged to be present, it follows “almost automatically” that the best interest of the child will be served by termination.

[10] See, e.g., In re Adoption of T.H., 2007 UT App 341, 1 10, 171 P.3d 480 (stating that “even assuming that proper grounds to terminate [the father’s] parental rights existed under [the statute], [the stepfather’s] failure to provide clear and convincing evidence that it would be in [the child’s] best interests to terminate [the father’s] parental rights is a fatal defect to termination”); In re E.R., 2001 UT App 66, 1 13, 21 P.3d 680 (stating that “[i]t is conceivable that grounds for termination may exist, but termination nonetheless is not in the best interest of the children”).

[11] Although the “almost automatically” concept was first introduced in In re J.R.T., 750 P.2d 1234, 1238 (Utah Ct. App. 1988), that case did not use the phrase “almost automatically.” The first time that language appeared was in a concurring opinion over two decades later. See In re J.D., 2011 UT App 184, ¶ 34, 257 P.3d 1062 (Orme, J., concurring). In that case, the majority did not ratify the “almost automatically” concept. See id. 127. Moreover, the concurring opinion included a “but see” citation to In re R.A.J., appearing to acknowledge that our holding in In re R.A.J. was contrary to the conclusions reached in the concurring opinion. See id. ¶34 (Orme, J., concurring) (citing In re R.A.J., 1999 UT App 329, ¶¶ 21-22, 991 P.2d 1118). In In re A.M.O., we cited In re R.A.J., see In re A.M.O., 2014 UT App 171, ¶18, 332 P.3d 372, but only as an example of the kind of “rare” case in which termination is not in the best interest of the child despite the existence of statutory grounds for termination. In In re Z.J., 2017 UT App 118, ¶3, 400 P.3d 1230 (per curiam), we likewise cited to In re R.A.J., and did so for the proposition that “Utah law requires a court to make two distinct findings before terminating a parent-child relationship,” id. (quotation simplified), but did not discuss In re R.A.J.’s contrary holding in connection with our reference to the “almost automatically” principle, id. ¶9.

[12] Those cases include the following: In re Z.J., 2017 UT App 118, ¶ 9; In re G.J.C., 2016 UT App 147, ¶25; In re A.M.O., 2014 UT App 171, ¶20; In re D.R.A., 2011 UT App 397, ¶ 21, 266 P.3d 844; In re J.R. T., 750 P.2d at 1238.

[13] Indeed, Mother specifically argued in her written briefing to the juvenile court that “where grounds for termination are established such as [in] the instant case, the conclusion that termination will be in the child’s best interests will follow almost automatically,” and in support cited this court’s decision in In re Z.J., 2017 UT App 118, ¶9. Moreover, at the hearing, Mother’s counsel argued that the “almost automatically” line of cases applied in this case and compelled the termination of Father’s rights, and the juvenile court considered that authority and discussed it with counsel at the hearing. In this opinion we have disavowed the “almost automatically” line of cases, specifically including In re Z.J., and to the extent the juvenile court relied upon those cases, its conclusions require reconsideration.

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