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Tag: custody

What Are the Odds That I Can Get Custody of My Daughter if I Have a Serious Criminal Record?

Without knowing more about your criminal record, I can still safely predict that having almost any kind of chronic or significant criminal record reduces your chances of being awarded custody of a child simply because having a criminal record indicates some kind of character flaw or moral failing, and good character and morals are a factor in determining parental fitness.

The kinds of crimes that have the greatest impact on the child custody analysis and award likely come as no surprise to anyone: child abuse (physical abuse, sexual abuse, psychological and emotional abuse), child neglect, physical, sexual, and emotional abuse of a spouse, violent crimes, and substance abuse.

Clearly, a history of shoplifting convictions is not as bad—from a parental fitness perspective—as a history of multiple felonious assault or child abuse or drug abuse or DUI convictions, but a criminal “lifestyle” is still one that a court would have a hard time knowing about and yet still subjecting a child to such a life with criminal parent.

If you had a long or serious criminal history, but worked long and hard and earnestly to reform (i.e., you realized the error of your ways, you regret the wrongs you did, you’ve changed for the better, and you are trying your best to make amends), that may persuade the court that your criminal history is no longer relevant or at least not as relevant as it would have been had your history indicated no remorse and no efforts to repent.

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

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Why Condemn Children to Sole Custody Awards When They Have Two Fit Parents?

One of the arguments that some fathers make when they encounter the double standard applied to mothers and fathers in child custody disputes (resulting in a denial of equal legal and physical custody to perfectly fit fathers in situations in which there is no way it could be shown that sole custody subserves the best interest of the child better than joint equal custody), they sometimes argue in utter (and utterly understandable) frustration, “Single mothers prove to be the worst parents time and time again!”

That’s an overstatement, a misleading claim. There are plenty of bad single mothers, sure, but single mothers don’t have a corner on the bad parent market.

Single parents (man or woman) have a hard time being the best parents (and being their best selves as a result) because parenthood was never meant to be a solo act. Single parents who try to marginalize and cut the other parent out of childrearing are doing not only the children a disservice, but themselves a disservice as well.

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

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Mother Made False Accusations Against a Father to Win Custody and Had a Restraining Order Put in Place With No Evidence to Back Her Reason, Can This Be Overturned?

Can it be overturned? It is possible.

Will it be overturned? The odds don’t favor Dad. While some fathers who are falsely accused do obtain vindication, the odds are against them. Why?

There is an undeniable bias in favor of mothers who claim to be victims of abuse or who claim that their husbands/children’s father is abusive. Courts err on the side of caution, take a “better safe than sorry” approach. There are many reasons for this, including but not necessarily limited to: beliefs that women don’t lie about abuse, belief that children are generally better off in the sole or primary custody of their mothers, and cynically calculating that it’s better for the judge’s career to issue protective orders against men who are either innocent or there is a question of their innocence than it is to “take the chance” on innocent until proven guilty. When court’s engage in such behavior, it’s lazy, it’s cowardly, it’s judicial malfeasance.

How can/does a falsely accused parent (father or mother, for that matter) clear his/her good name? Short of the kinds of things one cannot control (i.e., suddenly getting a new, sympathetic judge because the old judge retired or got sick, etc.), the most effective way is: presenting the court with evidence so overwhelming that the court cannot deny it, cannot disregard it without looking biased and/or incompetent. Easier said than done, and not always possible, but it’s really the only moral option.

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

https://www.quora.com/Mother-made-false-accusations-against-a-father-to-win-custody-and-had-a-restraining-order-put-in-place-with-no-evidence-to-back-her-reason-can-this-be-overturned/answer/Eric-Johnson-311

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Have You Heard That Fathers Defeat Mothers’ Claims of DV and Child Abuse by Claiming Parental Alienation?

We all know the aphorism, “If it looks/sounds to good to be true, it probably is [not true].” This also means, however, that if it looks/sounds too 𝙗𝙖𝙙 to be true, it probably is [not true] too.

Can we all agree that the following claim looks, on its face, too bad to be true?:

A George Washington University Law School article shows that mothers are statistically up to 90% more likely to lose custody of their children when they go on record about abuse. Abusive fathers, who claim parental alienation are almost always granted custody.

So, is the claim true?

I found the article: Child Custody Outcomes in Cases Involving Parental Alienation and Abuse Allegations, by Joan S. Meier George Washington University Law School.

Here is what that article actually claims (this is not the entire article, of course, and I have my doubts about the methodology and the resulting accuracy of the claims themselves, but I digress):

Spoiler alert: the article does not make any “women lose custody 90% of the time when they report abuse” claim.

Quotations directly from the article itself:

“Focusing on cases where it was determined that mothers started with possession of the children, and alleged some type of abuse by the father, the data show mothers losing custody in 26% (284/1111) of cases.”

*****

It is also notable that when mothers report mixed types of child abuse (sexual and physical) their custody losses skyrocket (from under 30% (39/135) up to 50%)(11/22).

*****

• When Fathers cross-claim alienation, courts are more than twice as likely to disbelieve Mothers’ claims of (any) abuse than if fathers made no alienation claim; and

• When Fathers cross-claim alienation, courts are almost 4 (3.9) times more likely to disbelieve Mothers’ claims of child abuse than if fathers made no alienation claim.

*****

As the chart indicates, when fathers claim alienation, the rate at which mothers lose custody shoots up from over 25% to over 50%. That is, fathers’ alienation claims roughly double mothers’ rates of losing custody. When courts credit the alienation claim, rates of maternal losses of custody increase more drastically:

Mothers’ Custody Losses When Courts Credit Fathers’ Alienation Claims

Type of Abuse Alleged Mother Lost Custody:

DV (domestic violence): 60% (15/25)
CPA (child physical abuse): 59% (10/17)
CSA (child sexual abuse): 68% (13/19)
DVCh (domestic violence and child physical abuse): 79% (19/24)
CACSA (child physical abuse and child sexual abuse): 100% (6/6)
Any abuse: 73% (60/82)

*****

“AKA” cases: those in which a court viewed a mother as alienating in her behavior but did not use the term “alienation.”

Mothers’ Custody Losses when Found to have Committed AKA

 

Custody Losses by Type of Abuse Alleged

Custody Losses When Abuse was Proven

   
DV  62% (24/39) DV  60% (3/5)
CPA  61% (17/28) CPA  50% (1/2)
CSA  58% (25/43) CSA  –
DVCh  55% (16/29) DVCh  –
CACSA  78% (7/9) CACSA  100% (1/1)
Any  60% (89/148) Any  63% (5/8)

—————————–

The article is definitely food for thought, but clearly does not find that mothers who allege abuse are 90% more likely to lose/not win custody.

Additionally, one of my critiques of the article is this: it does not reveal whether the abuse-alleging mothers who lost/did not win custody was due purely to their alleging abuse or purely because they were found to have engaged in parental alienation or something like it. For example, if these mothers were themselves child abusers or were found to be unfit parents for other reasons (i.e., child neglect, substance abuse, lacking sufficient housing, ability to provide financially, practicing poor hygiene, insufficient bonding, etc.), how many of them would have lost/not won custody anyway? The article does not address this.

But even if the only reason these mothers lost/did not win custody was due to the court finding them to have engaged in parental alienation, would that not be reason enough? Now, I’m not asserting that all cases of actual parental alienation should cause a mother (or father committing alienation) to lose/not win custody (level of severity must be considered), but parental alienation would be, in my professional opinion, sufficient grounds for awarding custody of children to the other parent, assuming the other parent were found, on balance to be 1) sufficiently fit as a parent; and 2) the more fit of the two parents.

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

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Why Get it Straight From the Horse’s Mouth When You Can Get a Truncated Version, Second-Hand?

When a custody evaluator and/or private guardian ad litem is/are appointed in a divorce case in which custody and parent-time of the children is disputed, they usually interview the children who are the subject of the custody and parent-time dispute and then make observations and recommendations regarding what the custody and parent-time awards should be based in part on those interviews.

But they never record their interviews with the children.

Instead, every custody evaluator (except one) that I know and every PGAL that I know wants us to believe (as opposed to knowing, based upon an objectively verifiable recording) that 1) they did in fact speak with the children; 2) what the custody evaluators and PGALs report second-hand and in summary fashion accurately reflects what was (and was not) asked of the children and what the children said (and did not say) in response; and 3) that the custody evaluator’s and PGAL’s assessment of the children’s credibility (assuming–not knowing–that the child were interviewed in the first place and that what the children allegedly said is in fact what the children said) is correct.

Such a policy is incongruous with the way any other witness account is presented to a court.

Courts claim they need to know the child’s “intent [whatever that means in the context of a child custody dispute] and desires.”

Yet the court goes out of its way to ensure that what we get from custody evaluators and/or PGALs not just second-hand accounts of the child’s purported statements, but summary second-hand accounts of the child’s purported statements.

Then, on the basis of the purported, second-hand summary accounts, the non-witness PGAL “makes a recommendation regarding the best interest of the minor” by ostensibly “disclos[ing] the factors that form the basis of the recommendation” when the purported factors have–not necessarily, but by design, no less–no objectively verifiable basis in the child’s testimony (because there is no testimony). Such a “take my un-recorded, unverifiable, second-hand word for it” process elevates faith over fact, and needlessly.

Yet by way of the court interviewing the child directly and on the record (or by having the child deposed in a fitting, appropriate setting, of course), the court could easily obtain objectively verifiable knowledge of not only the child’s “intent and desires” stated in the child’s own words but in the same way also obtain knowledge of the child’s relevant experiences, observations, feelings, opinions, and anything else the court may want to learn that bears on the child custody and parent-time award decisions.

Everyone who tries to justify the policy against child testimony does so by claiming that there is no equal or superior alternative. Such claims are without merit.

I would be cruel and unreasonable if I did not concede that a child should not be questioned on and for the record if it were proved (as reflected in particularized findings, not generalized views or preferences) that that particular child likely will (not merely could) be harmed by testifying to the extent that the value of the testimony does not outweigh the harm. In such a situation barring that child from testifying would be warranted.

But when avoiding the subject altogether is worse for the child than confronting it, question the child on the record–for the child’s sake. For the sake of the truth- and fact-finding processes. It is cruel and unreasonable to silence the child that way.

Many children are not only willing to testify to the facts bearing upon the child custody and parent-time awards, they want to testify to them. Even when it may be unpleasant to address the topics. Regardless of how eager children may be to testify, they have the greatest stake in the child custody and parent-time awards. They deserve to be heard from, and in their own words. Who would (who could, credibly) gainsay that?

And the notion that a judge or commissioner interviewing a child, or a child being questioned in a deposition (and the child could be deposed by the PGAL, if there were sufficient facts to support a conclusion that the child is in danger of suffering verifiable serious, irreparable harm were the child questioned by the parents’ respective attorneys) would inherently cause a child unjustifiable harm is self-evidently false.

First, I have personal experience with children testifying for the record in child custody and parent-time proceedings without incident. I (and others who have the same experience actually deposing a child) know that it is not inherently harmful to every child who is old enough to testify competently.

Second, children regularly testify in proceedings substantively indistinguishable from divorce/parentage child custody and parent-time proceedings (e.g., contested child abuse, neglect, or dependency cases, contested petitions for termination of parental rights cases, contested adoption and guardianship cases). This is proof that child testimony–though it may be frightening or saddening for some children–is not universally catastrophic for all (even most) children who are old enough to testify competently.

Thus, the assertion that judges, domestic relations commissioners, and lawyers cannot competently question a child in a divorce-based child-custody and parent-time dispute unless they are “specially trained as PGALs (especially when the ‘special training’ can be obtained in a matter of a few days’ time)” is invalid on its face. If one need not be “specially trained” to question a child in contested child abuse, neglect, or dependency cases, contested petitions for termination of parental rights cases, contested adoption and guardianship cases, one need not be “specially trained” as a PGAL to question a child competently and with due sensitivity.

My biggest worry (among many) about the way custody evaluations and PGAL appointments work in Utah is when custody evaluators and PGALs–who can by recording child interviews easily provide the parents and the court with an objective way of verifying whether the children were interviewed, how well or poorly they were interviewed, what they were asked (and not asked) and what they said (or did not say) in response–refuse to do so.

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

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What Must or Should I Do In This Situation?

What do I do If custody order says visitation is from 4 – 8 meeting at police station when there is no school but if there is school that day but child gets out at 12:30 is that consider no school or parent gets to get him earlier?

Does the court order describe what happens in this situation?

If not, does the other parent want to exercise visitation starting at 12:30?

If you were the other parent, would you want to exercise visitation starting at 12:30 in this situation? If so, and if the other parent wants to exercise visitation starting at 12:30, and if there is no good reason for the other parent not to exercise visitation starting at 12:30, why shouldn’t the other parent start exercising visitation that day, starting at 12:30? Do as you would be done by.

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

https://www.quora.com/What-do-I-do-If-custody-order-says-visitation-is-from-4-8-meeting-at-police-station-when-there-is-no-school-but-if-there-is-school-that-day-but-child-gets-out-at-12-30-is-that-consider-no-school-or-parent-gets-to/answer/Eric-Johnson-311

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CPS Has Encouraged Parental Alienation Before My Parental Rights Have Been Taken, My Public Defender Has Not Been Representing Me the Way He Was Supposed to Be, but I Didn’t Know Until Now. What Can I Do?

There are plenty of things you can do (plenty of activity in which you can engage), but whether any of it will do any good is the question. The answer is usually: not likely. When child protective services (CPS) is working against you, then usually law enforcement and the courts follow suit, whether you’re “guilty” or not. If you have a public defender, then you’re poor, and while there is no shame simply in being poor, it limits your options in a fight like this.

All that stated, you need to fight with all you have for what’s right, or the regret and wondering “what might have been?” will surely torment you the rest of your life. You already know the outcome if you give up.

Now, pick your battles. Don’t run faster than you have strength, and don’t engage in “ends justify the means” tactics, but fight the good fight, so that if, some day, you confront your child who asks, “Did you try your best for me, Mom/Dad?,” you can answer in the affirmative.

Sometimes doing your best means kicking the bad habits, addictions, and mental health afflictions. The work on ourselves if often the hardest—not impossible (thankfully), but the hardest

I wish I had more for you, but this is the best I can offer.

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

https://www.quora.com/In-California-CPS-has-encouraged-parental-alienation-before-my-parental-rights-have-been-taken-my-public-defender-has-not-been-representing-me-the-way-he-was-supposed-to-be-but-I-didnt-know-until-now-What-can-I-do

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House Bill 140 (HB0140 (utah.gov)), “Amendments to Custody and Parent-Time”

Today’s post on proposed family law legislation under consideration during the 2024 Utah legislative session is House Bill 140 (HB0140 (utah.gov)), “Amendments to Custody and Parent-Time”.

This bill, according to its own description:

  • provides that a substantial and material change in circumstances for a custody order includes a parent residing with an individual, or providing the individual with access to the parent’s child, when the individual has been convicted of certain crimes;
  • amends the advisory guidelines for a custody and parent-time arrangement to allow for parental notification when a parent is residing with an individual, or providing the individual with access to the parent’s child, and the individual has been convicted of certain crimes;
  • amends the advisory guidelines for a custody and parent-time arrangement in regard to notification of a parent in the event of a medical emergency; and
  • makes technical and conforming changes.

It would amend the following code sections, if passed into law:

Utah Code § 30-3-10.4

Utah Code § 30-3-33

My thoughts on this bill:

If this bill passed, what effect would it have? A parent discovers that the person he/she resides with or to whom the parent has “provide access to his/her child(ren)” meets one or more of the child abuse/child sexual abuse factors and has to notify the other parent of this fact? So what? Unless the person is barred from contact with children, then unless that person has abused, attempted to abuse, or threatened to abuse the child(ren), what can legally be done? A child being in the presence of a child abuse ex-con is not itself a “substantial and material change of circumstances” justifying a modification of child custody or parent-time, in my view. We can’t keep punishing someone repeatedly for the same crime.

And the definition of “sex offender” gets broader all the time. You can get on the sex offender list for the silliest of things (I know a guy who went streaking in college and is on the sex offender list—it was stupid of him to go streaking, but a little kid saw him from a neighboring window and that’s what got him on the sex offender list).

Yes, living with a child abuse ex-con or providing a child abuse ex-con “access to the child(ren)” is poor judgment, but without the children being harmed or in danger of being harmed, there’s not enough to go on to do anything.

But I get it. If I were a divorced or single parent, I wouldn’t want the other parent living with a convicted sex offender either (assuming the offense was a serious one, and not one of those “he/she is on the sex offender list for public urination” kind of convictions).

It’s not a matter of how I feel about sex offenders (real sex offenses are vile), it’s whether the proposed law would do any good. I don’t think it would. Especially not in the legal system we have now. What good one perceives such a law would do and what it would actually do are quite different, in my view.

I don’t know a great deal about the sex offender registry law and other post-conviction laws. Are convicted sex offenders required to notify prospective boyfriends/girlfriends or spouses that they are convicted sex offenders currently? It is my understanding that they do not. If they do, then H.B. 140 may have stronger rational footing than I believe. If not, then the bill doesn’t appear to make much legal sense to me (meaning: I don’t see what good it will actually do, no matter how good it may feel to propose such a law).

Even if the law were passed, it would not likely be the basis for a modification of a child custody or parent-time order. Living with someone who is a convicted sex offender alone is simply not proof of any harm or sufficient danger to a child (just as living with one convicted of a violent crime, drug use, drug dealing, or other crimes is not). I don’t know the real statistics about the rate of recidivism for sex offenders, but even if we assume for the sake of discussion that it’s very high, that alone would not, in my view, likely be seen by a court as a reason to change custody. Like it or not.

If a parent resided with a sex offender with a history of repeated offenses, that might qualify as too great a risk to a child, but if we’re talking one conviction (maybe even two, sadly), that may not be enough to establish the sex offender as a danger to the children. My opinion is not based upon sympathy for sex offenders but on what I believe the courts would do in the situation you describe. This is why you’ll notice that there has not been a bill proposed that prevents a single parent or divorced parent from marrying or living with a convicted sex offender. I believe it would be found unconstitutional, that it would be found to unduly punish those who don’t re-offend.

Besides, how would one ever prove that a parent who resides with a convicted sex offender or provides him/her with access to that parent’s knows that the individual is a sex offender or worse, “an offense that is substantially similar to” a sex offense (see lines 57 and 58 of the bill, emphasis mine).

No matter how good the intent behind H.B. 140 may be, I foresee far too many adverse unintended consequences and abuses of such a law.

AMENDMENTS TO CUSTODY AND PARENT-TIME

33     Be it enacted by the Legislature of the state of Utah:
34          Section 1. Section 30-3-10.4 is amended to read:
35          30-3-10.4. Modification or termination of order.
36          (1) The court has continuing jurisdiction to make subsequent changes to modify:
37          (a) custody of a child if there is a showing of a substantial and material change in
38     circumstances since the entry of the order; and
39          (b) parent-time for a child if there is a showing that there is a change in circumstances
40     since the entry of the order.
41          (2) A substantial and material change in circumstances under Subsection (1)(a)
42     includes a showing by a parent that the other parent:
43          (a) resides with an individual or provides an individual with access to the child; and
44          (b) knows that the individual:
45          (i) is required to register as a sex offender or a kidnap offender for an offense against a
46     child under Title 77, Chapter 41, Sex and Kidnap Offender Registry;
47          (ii) is required to register as a child abuse offender under Title 77, Chapter 43, Child
48     Abuse Offender Registry; or
49          (iii) has been convicted of:
50          (A) a child abuse offense under Section 76-5-10976-5-109.276-5-109.376-5-114,
51     or 76-5-208;
52          (B) a sexual offense against a child under Title 76, Chapter 5, Part 4, Sexual Offenses;
53          (C) an offense for kidnapping or human trafficking of a child under Title 76, Chapter 5,
54     Part 3, Kidnapping, Trafficking, and Smuggling;
55          (D) a sexual exploitation offense against a child under Title 76, Chapter 5b, Sexual
56     Exploitation Act; or

57          (E) an offense that is substantially similar to an offense under Subsections
58     (2)(b)(iii)(A) through (D).
59          [(1)(3) On the petition of one or both of the parents, or the joint legal or physical
60     custodians if they are not the parents, the court may, after a hearing, modify or terminate an
61     order that established joint legal custody or joint physical custody if:
62          (a) the verified petition or accompanying affidavit initially alleges that admissible
63     evidence will show that the circumstances of the child or one or both parents or joint legal or
64     physical custodians have materially and substantially changed since the entry of the order to be
65     modified;
66          (b) a modification of the terms and conditions of the order would be an improvement
67     for and in the best interest of the child; and
68          (c) (i) both parents have complied in good faith with the dispute resolution procedure
69     in accordance with Subsection 30-3-10.3(7); or
70          (ii) if no dispute resolution procedure is contained in the order that established joint
71     legal custody or joint physical custody, the court orders the parents to participate in a dispute
72     resolution procedure in accordance with Subsection 30-3-10.2(5) unless the parents certify that,
73     in good faith, they have used a dispute resolution procedure to resolve their dispute.
74          [(2)(4) (a) In determining whether the best interest of a child will be served by either
75     modifying or terminating the joint legal custody or joint physical custody order, the court shall,
76     in addition to other factors the court considers relevant, consider the factors outlined in Section
77     30-3-10 and Subsection 30-3-10.2(2).
78          (b) A court order modifying or terminating an existing joint legal custody or joint
79     physical custody order shall contain written findings that:
80          (i) a material and substantial change of circumstance has occurred; and
81          (ii) a modification of the terms and conditions of the order would be an improvement
82     for and in the best interest of the child.
83          (c) The court shall give substantial weight to the existing joint legal custody or joint
84     physical custody order when the child is thriving, happy, and well-adjusted.
85          [(3)(5) The court shall, in every case regarding a petition for termination of a joint
86     legal custody or joint physical custody order, consider reasonable alternatives to preserve the
87     existing order in accordance with Subsection 30-3-10(3). The court may modify the terms and

88     conditions of the existing order in accordance with Subsection 30-3-10(8) and may order the
89     parents to file a parenting plan in accordance with this chapter.
90          [(4)(6) A parent requesting a modification from sole custody to joint legal custody or
91     joint physical custody or both, or any other type of shared parenting arrangement, shall file and
92     serve a proposed parenting plan with the petition to modify in accordance with Section
93     30-3-10.8.
94          [(5)(7) If the court finds that an action under this section is filed or answered
95     frivolously and in a manner designed to harass the other party, the court shall assess attorney
96     fees as costs against the offending party.
97          [(6)(8) If an issue before the court involves custodial responsibility in the event of
98     deployment of one or both parents who are service members, and the service member has not
99     yet been notified of deployment, the court shall resolve the issue based on the standards in
100     Sections 78B-20-306 through 78B-20-309.
101          Section 2. Section 30-3-33 is amended to read:
102          30-3-33. Advisory guidelines for a custody and parent-time arrangement.
103          (1) In addition to the parent-time schedules provided in Sections 30-3-35 and
104     30-3-35.5, the following advisory guidelines are suggested to govern [all parent-time
105     arrangementsa custody and parent-time arrangement between parents.
106          [(1)(2) [Parent-time schedulesA parent-time schedule mutually agreed upon by both
107     parents [areis preferable to a court-imposed solution.
108          [(2)(3) [TheA parent-time schedule shall be used to maximize the continuity and
109     stability of the child’s life.
110          [(3)(4) [Special consideration shall be given by each parentEach parent shall give
111     special consideration to make the child available to attend family functions including funerals,
112     weddings, family reunions, religious holidays, important ceremonies, and other significant
113     events in the life of the child or in the life of either parent which may inadvertently conflict
114     with the parent-time schedule.
115          [(4)(5) (a) The court shall determine the responsibility for the pick up, delivery, and
116     return of the child [shall be determined by the court] when the parent-time order is entered[,
117     and may be changed].
118          (b) The court may change the responsibility described in Subsection (5)(a) at any time

119     a subsequent modification is made to the parent-time order.
120          [(5)(c) If the noncustodial parent will be providing transportation, the custodial parent
121     shall:
122          (i) have the child ready for parent-time at the time the child is to be picked up [and
123     shall]; and
124          (ii) be present at the custodial home or [shall] make reasonable alternate arrangements
125     to receive the child at the time the child is returned.
126          [(6)(d) If the custodial parent will be transporting the child, the noncustodial parent
127     shall:
128          (i) be at the appointed place at the time the noncustodial parent is to receive the child[,
129     and]; and
130          (ii) have the child ready to be picked up at the appointed time and place[,] or have
131     made reasonable alternate arrangements for the custodial parent to pick up the child.
132          [(7)(6) [RegularA parent may not interrupt regular school hours [may not be
133     interrupted] for a school-age child for the exercise of parent-time [by either parent].
134          [(8)(7) The court may:
135          (a) make alterations in the parent-time schedule to reasonably accommodate the work
136     schedule of both parents [and may]; and
137          (b) increase the parent-time allowed to the noncustodial parent but may not diminish
138     the standardized parent-time provided in Sections 30-3-35 and 30-3-35.5.
139          [(9)(8) The court may make alterations in the parent-time schedule to reasonably
140     accommodate the distance between the parties and the expense of exercising parent-time.
141          [(10)(9) [Neither parent-time nor child support is to be withheld due to eitherA
142     parent may not withhold parent-time or child support due to the other parent’s failure to comply
143     with a court-ordered parent-time schedule.
144          [(11)(10) (a) The custodial parent shall notify the noncustodial parent within 24 hours
145     of receiving notice of all significant school, social, sports, and community functions in which
146     the child is participating or being honored[, and the].
147          (b) The noncustodial parent [shall beis entitled to attend and participate fully in the
148     functions described in Subsection (10)(a).
149          [(12)(c) The noncustodial parent shall have access directly to all school reports

150     including preschool and daycare reports and medical records [and shall be notified immediately
151     by the custodial parent].
152          (d) A parent shall immediately notify the other parent in the event of a medical
153     emergency.
154          [(13)(11) Each parent shall provide the other with the parent’s current address and
155     telephone number, email address, and other virtual parent-time access information within 24
156     hours of any change.
157          [(14)(12) (a) Each parent shall permit and encourage, during reasonable hours,
158     reasonable and uncensored communications with the child, in the form of mail privileges and
159     virtual parent-time if the equipment is reasonably available[, provided that if the parties].
160          (b) If the parents cannot agree on whether the equipment is reasonably available, the
161     court shall decide whether the equipment for virtual parent-time is reasonably available[,by
162     taking into consideration:
163          [(a)(i) the best interests of the child;
164          [(b)(ii) each parent’s ability to handle any additional expenses for virtual parent-time;
165     and
166          [(c)(iii) any other factors the court considers material.
167          [(15)(13) (a) Parental care [shall beis presumed to be better care for the child than
168     surrogate care [and the].
169          (b) The court shall encourage the parties to cooperate in allowing the noncustodial
170     parent, if willing and able to transport the children, to provide the child care.
171          (c) Child care arrangements existing during the marriage are preferred as are child care
172     arrangements with nominal or no charge.
173          [(16)(14) Each parent shall:
174          (a) provide all surrogate care providers with the name, current address, and telephone
175     number of the other parent [and shall]; and
176          (b) provide the noncustodial parent with the name, current address, and telephone
177     number of all surrogate care providers unless the court for good cause orders otherwise.
178          [(17)(15) (a) Each parent [shall beis entitled to an equal division of major religious
179     holidays celebrated by the parents[, and the].
180          (b) The parent who celebrates a religious holiday that the other parent does not

181     celebrate shall have the right to be together with the child on the religious holiday.
182          [(18)(16) If the child is on a different parent-time schedule than a sibling, based on
183     Sections 30-3-35 and 30-3-35.5, the parents should consider if an upward deviation for
184     parent-time with all the minor children so that parent-time is uniform between school aged and
185     nonschool aged children, is appropriate.
186          [(19)(17) (a) When one or both parents are servicemembers or contemplating joining
187     a uniformed service, the parents should resolve issues of custodial responsibility in the event of
188     deployment as soon as practicable through reaching a voluntary agreement pursuant to Section
189     78B-20-201 or through court order obtained pursuant to Section 30-3-10.
190          (b) [ServicemembersService members shall ensure their family care plan reflects
191     orders and agreements entered and filed pursuant to Title 78B, Chapter 20, Uniform Deployed
192     Parents Custody, Parent-time, and Visitation Act.
193          (18) A parent shall immediately notify the other parent if:
194          (a) the parent resides with an individual or provides an individual with access to the
195     child; and
196          (b) the parent knows that the individual:
197          (i) is required to register as a sex offender or a kidnap offender for an offense against a
198     child under Title 77, Chapter 41, Sex and Kidnap Offender Registry;
199          (ii) is required to register as a child abuse offender under Title 77, Chapter 43, Child
200     Abuse Offender Registry; or
201          (iii) has been convicted of:
202          (A) a child abuse offense under Section 76-5-10976-5-109.276-5-109.376-5-114,
203     or 76-5-208;
204          (B) a sexual offense against a child under Title 76, Chapter 5, Part 4, Sexual Offenses;
205          (C) an offense for kidnapping or human trafficking of a child under Title 76, Chapter 5,
206     Part 3, Kidnapping, Trafficking, and Smuggling;
207          (D) a sexual exploitation offense against a child under Title 76, Chapter 5b, Sexual
208     Exploitation Act; or
209          (E) an offense that is substantially similar to an offense under Subsections
210     (18)(b)(iii)(A) through (D).

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How do you survive if the narcissist won custody of your kids and you have to accept it?

Hard truths incoming.

When dealing with a co-parent who is afflicted with a personality disorder, do these things, and do them all at the same time:

1) Examine your own personality flaws first. Acknowledge and work to correct your own personality flaws. You may gain insights into the other parent you couldn’t see before. If you must complain about the other parent’s personality flaws, do not do so without acknowledging and working to correct your own personality flaws. Be gracious (and that means when you don’t want to be).

In short: be humble, meaning open-minded, principled, and focused on solving the problem, not on self pity. Otherwise, you risk overlooking some (perhaps all) of the solutions, if there are any, to the problems you have with the other parent.

3) Adjust and adapt. When dealing with a co-parent who is afflicted with a personality disorder, you’re almost surely wasting time if you try to force or even to persuade the other parent to change. It is not fair that you have to do all the adjusting and adapting, but lamenting that fact is a waste. You need to understand and accept (“agree” is even better than “accept”) the fact that adjusting and adapting may be the only way to reach what peace and happiness there is to be had under the circumstances.

4) Engage in all of your dealings with the other parent with class. Fighting fire with fire burns you up emotionally and spiritually. Our children notice far more than we believe. “The true test of a man’s character is what he does when no one is watching.” ― John Wooden

5) Reach out to God, sincerely. Lay your burdens at his feet and ask Him for help and guidance. He will “reach your reaching”.

For you own sake, be this way. It will take time and effort, but it will bring you peace and enable you to make the best of your situation).

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Obstacles Fathers Face in Trying to Get Joint Custody of Their Children

I have been asked by a reader to answer two questions.

The first: whether I believe courts generally apply a double standard in the treatment of mothers and fathers when courts make their child custody and parent-time (visitation) orders. The answer is “yes”. Not just “yes,” but “unquestionably, yes.”

The second: What do fathers need to do to meet and overcome that double standard? This is not a polar or closed question, so it requires a prescriptive response.

Before I answer the second question in detail, we need to understand—really and fully understand—why courts generally apply a double standard in the treatment of mothers and fathers when courts make their child custody and parent-time orders. Several volumes could easily be dedicated to the reasons why, so understand what I provide here is not merely concise but rather terse and not exhaustive (though no less true). In no particular order, here are the reasons I’ve encountered:

  • Few will admit it, but most people—both men and women—harbor the belief that women are better parents than men generally.[1]Many judges (both men and women) literally find it impossible to conceive that a father can be as effective a parent as a mother. Consequently, many courts substitute scrutiny and analysis of each particular parent in each particular case for playing the odds by awarding sole primary custody of the children to the mothers.
  • For jurisdictions that base child custody and parent time decisions upon which parent is the “primary caregiver,” courts inexcusably apply a needlessly biased definition of “primary caregiver.” For example, in Utah, “primary caregiver” has been defined as:

We believe that the choice in competing child custody claims should instead be based on function-related factors. Prominent among these, though not exclusive, is the identity of the primary caretaker during the marriage. Other factors should include the identity of the parent with greater flexibility to provide personal care for the child and the identity of the parent with whom the child has spent most of his or her time pending custody determination if that period has been lengthy. Another important factor should be the stability of the environment provided by each parent.

(Pusey v. Pusey, 728 P.2d 117 (August 18, 1986 Supreme Court of Utah))

The Pusey standard is over 37 years old as of the date this post is written, but is still followed in Utah. The standard is outmoded and do for a change. I believe that change is coming soon and that when that day comes, sexual discrimination against father in the child custody and parent time awards will suffer a fatal or near-fatal blow, but that day is not here yet. Even so, the seeds of Pusey’s destruction are found in the decision itself:

“[T]he provisions of article IV, section 1 of the Utah Constitution and of the fourteenth amendment of the United States Constitution would preclude us from relying on gender as a determining factor.”

The primary caregiver standard is (as many of you have already surmised), in many respects, just another disguise for bias in favor of mothers and against fathers.

I would like to say that I do not understand why courts in Utah continue to overlook the obvious fact that most of these so-called primary caregiver parents’ status depends upon the other parent being the sole or primary breadwinner. Otherwise stated, the reason mom can stay home with the kids is because dad is the one working to put that roof over their heads and providing all of the other necessities of life without the mother having to work outside the home herself. And so the courts have these kinds of fathers on the heads, ostensibly thank them for their sacrifices and for being upstanding, responsible men, then turn around and hand over sole or primary custody of the children to the mother nonetheless.

o   The problem with this thinking is that divorce fundamentally changes family dynamics. The primary caregiver analysis often fails to acknowledge that the physical primary caregiver status will rarely remain static post-divorce.

She (or he, in rare instances) who was the primary caregiver when the family all resided under the same roof will rarely remain able to be a stay-at-home parent post-divorce. That stay-at-home parent may find herself having to work outside the home to provide financially both for herself and for the children.

Likewise, fathers who used to come home to their children every day but who now realize they will be lucky if they get to see their kids every other day, will often make sacrifices so that they can spend as much time caring for their kids as possible when they are not at work. Courts, however, largely act as though this fact of life isn’t real. Or they may ostensibly acknowledge the fact in their custody and parent time decisions, custody and parent time awards themselves– mom still ends up with sole or primary custody, and dad ends up with every other weekend, alternating holidays, and a few weeks in the summer.

In Utah, the law is:

“Determining which factors the court must address in a given case, and to what degree, presents a tricky task,” and that “courts are not required to render a global accounting of all evidence presented or to discuss all aspects of a case that might support a contrary ruling.” See Twitchell, 2022 UT App 49, ¶ 21, 509 P.3d 806

But “where significant evidence concerning a particular factor is presented to the district court,” especially where that factor is a critically important one, “findings that omit all discussion of that evidence” and of that factor “must be deemed inadequate.” Id.

(Twitchell v. Twitchell, 2022 UT App 49, ¶ 21, 509 P.3d 806)

But it doesn’t take a genius to find that courts can, if they so desire, overlook pretty much whatever evidence they want (to get to the ruling they want) by simply deeming/dismissing/discounting such evidence as “insignificant”.

So what can (or even must) fathers do to ensure that they (and their children’s relationships with them) are simply treated fairly and impartially in the child custody and parent-time awards? An exhaustive list of pointers could run into the hundreds, but here are the most important, in my estimation (again, in no particular order):

  1. Approach your case like a black man would back in the 1960s who was a defendant in a criminal case: to win, he had to prove his innocence, and he had do it with 10 times more evidence than a white defendant needed. Fathers need to prove their parental fitness. Rarely will a court presume fitness of a father (they presume a mother’s fitness all the time). Generally, fathers must have far more and far better evidence of their fitness compared to what the courts require of mothers. Otherwise stated, you need so much evidence, and so much high-quality evidence, that even the most biased/cynical judge cannot deny you without looking inept or corrupt.
  2. Prove that you satisfy every custody factor the court must consider. In Utah, those factors are found here:

Utah Code § 30-3-10.  Custody of a child—Custody factors.

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

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

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

Utah Code § 30-3-35.1.  Optional schedule for parent-time for a child five to 18 years old.

30-3-35.2.  Equal parent-time schedule.

  1. Document everything you possibly can to prove you are a fit parent who can and should exercise at least equal custody of your children (do not seek sole custody or primary custody out of spite—that is wrong).
  2. Do everything you reasonably, possibly can to show you are a fit parent in every way.
  3. If you and your wife are separated, make sure you live as close to your wife as you can, so that the children are in the same neighborhood near their same friends and familiar favorite places, same school district where the children attend school, and can attend the same church they have been historically attending, so that the court doesn’t say, “Dad, you live too far away to make awarding you equal custody good for the children.” Do you see why?
  4. If you live too far away from your kids, they will end up presenting spending any time with you, resent the travel back and forth between their parents’ homes, they won’t have any friends in your neighborhood, they will be too far away from school and extracurricular and church activities, and you risk them telling you that spending time with you is more trouble than it’s worth.
  5. Get your hands on all the latest rigorous research showing that children, whether boys or girls, fare better in an equal custody arrangement. You may even need to retain the services of an expert witness to testify to these things. If you simply dump scholarly articles on the court, they will likely not be admissible without an expert witness to verify that they are legitimate and valid.
  6.       Live a life beyond reproach, and document it in painstaking detail.
  7. You want to do everything to prove this beyond any reasonable doubt: “Your Honor, if what I have set up by way of where I live and what my work schedule is and how much time I can spend providing personal care and attention for the children doesn’t qualify me in every meaningful way to exercise equal physical custody of our children, then there is no other realistic situation that can.”
  8. Ensure that the court makes findings that you meet every factor (ensure that the court makes findings on every factor and points to the evidence supporting each and every finding).
  9. Don’t merely prove you are a good parent. To the extent you can, also DISPROVE all the claims that you are not a good parent.
  10. Be careful about admitting your wife is a good and fit parent if she’s claiming you are a bad and unfit parent.
  11. No, I’m not advising you to lie about your wife’s parental fitness, I’m warning you that I’ve seen courts make findings like this far too often: “Dad admits that Mom is a good parent, but Mom claims Dad is a bad parent, and so Mom wins the parental fitness argument.” It’s disgusting, but it happens.
  12. Don’t believe that “falling on your sword for your kids” will benefit you, or the kids for that matter. When you do that, you run the unnecessary risk of the court pulling a “no good deed goes unpunished” move like, “Dad said he’s willing to agree to less than equal custody to settle the case and put an end to the fighting; so be it.” That may have worked with Solomon, but it rarely works in court.
  13. Show that depriving a child of any care and love and companionship and tutelage that a parent is able and willing to give that child is inherently contrary to the best interest of the child. Show that “the best parent” is BOTH parents. Show that children have a right to loved and reared by both of their parents as much as possible.
  14. Blow the “primary caregiver” argument as meaning “woman” or even “the stay-at-home parent” to smithereens. It’s a pernicious lie. Read my other blog post for more on this and other bogus arguments against fathers and joint legal and physical custody of children: All Men Are Created Equal: A Proof for the Presumption of Joint Physical Custody – Divorce Utah

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[1] I am nothing, if not frank. It is probably true that if you took a random sampling of parents and analyzed which of the two, among the mother and the father, is the more competent and attentive parent, a higher percentage of those parents would be mothers instead of fathers. But that doesn’t mean that every mother is presumptively a better parent than every father in a child custody dispute. It’s when courts indulge in such a presumption that they indulge in sexual discrimination, indulge in analytical laziness, and thus can (and often do) commit error.

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Do you think the child support laws in your state are fair? If no, then describe the changes that you would make.

I can’t speak for all jurisdictions, but in the jurisdiction where I practice divorce and family law (Utah), child support awards are generally, in my opinion, 1) too high, 2) often wrongfully misused by those seeking child support (and by the courts that award child support) as a means of providing financial support for a parent (not just the child(ren)), and 3) not subject to enough (if any) oversight regarding their properly use.

One factor that can cause child support to be awarded unfairly to the child support recipient is this: I’ve attended the meetings of the committee that sets child support guidelines in my state. It was clear in my observations of the committee’s work that some on the committee don’t see child supporters as financial support exclusively for children, but for the parent receiving the child support payments also. I’ve seen courts award sole or primary child custody to a parent not because that was in the best interest of the child, but because the court wanted to ensure that the parent awarded custody got the extra child support money that comes with a sole or primary custody award. In my view, that is unfair. There are many times when a judge will award child support (and the associated child custody) not strictly for the purpose of providing some financial support for the children but for the custodial parent as well. When they do, it is manifestly inequitable and unjust (to child and parent alike), and a violation of the public trust, but it still happens. Not in every child support case, but it happens.

One factor that can cause child support to be spent unfairly by the child support recipient is: no accountability on the part of the child support funds recipient for the expenditure of the child support funds. Once the parent who was awarded child support receives the funds, he/she can spend them however he/she wants. If the child support recipient (also known as the child support obligee) does not actually spend the child support on the financial needs of the children, he/she gets away with it.

In my jurisdiction (Utah), while the law provides for accountability as to how child support funds are spent, that law is literally never applied (Play 26 years of practice I have never seen it ordered). There is no accountability for how child support funds are paid. That is not opinion, that is fact. About the only way to get accountability for use of child support funds is if the child support recipient so grossly and obviously misspends them that it cannot be denied, in which case the court may make some changes to the child support award as a result.

In fairness, while it may be a little easier to devise a means for a fairer calculation of needed child support than it is to devise a workable, reliable means of holding child support obligees accountable, both tasks are extremely difficult. Everyone has a different opinion of what is a “fair calculation,” and where there’s a will to misappropriate the child support funds with which one is entrusted without being detected, there’s a way (multiple ways, in fact, the number of which is limited only by the imagination).

In my jurisdiction, there are different kinds of child support. Three different kinds, to be exact (sometimes four, under certain circumstances). What most people consider child support is known as base monthly child support in Utah. That is the amount that is paid directly to the custodial parent. But child support also includes sharing equally the cost of the child’s health, medical, dental, and hospital insurance premiums, and half of all uninsured medical, health, dental, and hospitalization expenses. Child support also includes the responsibility that the parents share equally the cost of all work-related childcare expenses. And in joint physical custody cases, often the court will order that the parties share equally the costs of certain expenses for the child in addition to base monthly child support to cover things like mandatory school expenses and cost of reasonable extracurricular expenses.

A parent has his/her own living expenses. While it is true that in some cases a parent may incur housing expenses greater than what they would be were there no need for extra room to house the child or children, child support is not needed for “extra” housing expenses if the size of the parent’s residence would have been the same regardless of the child custody award.

The problem with thinking that “half of all living expenses are the child’s”) is that rarely are half of all living expenses are, in fact, the child’s. For example, if a parent would have been residing in the same sized residence with or without the child present, then the “child’s portion” of rent is $0. Even if the residence is a 2-bedroom house/apartment, the second bedroom is not equivalent to half the cost of the residence. Children don’t eat as much food until they are older (and even so, they are not eating on the custodial parent’s dime every day because they eat some time meals the noncustodial parent). I cannot speak for all jurisdictions, but in Utah child support is usually more than what the child (the child, not the custodial parent, the child) needs to be sufficiently financially supported).

All common expenses clearly do not divide perfectly equally between the parent and child. A parent whose residence would have been the same size regardless of whether he/she shared it with a child would have $0 in child housing expenses, $0 in certain utilities expenses (i.e., heating, garbage removal, cable TV, internet), for example. So, the idea that child support must take into account that a child’s “shelter” expenses are equal to half the parent’s rent or mortgage payment is false on its face. If a court wants to indulge such a fiction for the sake of making it easier to calculate child support, that’s a different matter. A child’s transportation needs are not necessarily equal to half or 25% of those of the parent either.

In Utah, work-related daycare is an expense shared equally between the parents and is separate from the base monthly child support amount. To be clear: a noncustodial parent pays base monthly child support in addition to sharing half the costs of work-related child care expenses.

While it is true that a child’s food consumption changes as the child ages, that’s built in to the child support calculations, so that it averages out—child support is more than necessary to feed a 5-year-old and less than necessary to feed a 17-year-old, but the average child support amount accounts for both scenarios as the child ages. I have never, in 26 years of practice in Utah, personally witnessed a case (nor have I heard of any other case in which) child support was ordered increased for a teenaged child on the basis of “additional food and clothing expenses of a teenager”. Child support calculations are the same for all children, regardless of age.

The “poor hapless custodial parent” story is tired and not credible. Of course, there are many deadbeat noncustodial parents to pay less than full court-ordered child support and many deadbeats who pay none. But that is not the discussion here. The idea that child support that is awarded is somehow insufficient to meet a child’s needs (needs) is bunk. All the arguments that “child support is too low” are bunk too. Consider this: in Utah, both parents have a child support obligation (that includes the custodial parent). That means that that the custodial parent has an obligation to spend his/her own money on the child’s support in addition to the money he/she receives in child support from the noncustodial parent. So, if we have John and Jane Doe as parents, they have two minor children, John’s gross monthly income is $6,500 and Jane’s gross monthly income is $2,400, and John is the noncustodial parent, then John’s monthly child support obligation is $1,111. That’s $555.50 per child, per month, that John pays. Jane’s child support obligation is less, but still $411 per month (see the Utah child support worksheet below, calculated on a sole custody basis in this hypothetical scenario). That’s an additional $205.50 per child per month. Don’t tell me that $761 per month isn’t enough to provide for a child’s needs monthly. Remember: base monthly child support does not include both parents sharing the costs of child health insurance equally, uninsured child health care equally, and work-related daycare equally. That’s all in addition to the base monthly child support amount. In other words, the custodial parent doesn’t have to spend out of that $761 per month for child health insurance, uninsured out of pocket health care, and daycare (the parents bear those expenses separately on an equal shares basis). $761 is likely more than what the parents would have spent on the child’s support had the parents resided together with the children under the same roof.

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https://www.quora.com/Do-you-think-the-child-support-laws-in-your-state-are-fair-If-no-then-describe-the-changes-that-you-would-make/answer/Eric-Johnson-311

 

 

Don’t tell me that $761 per month isn’t enough to provide for a child’s needs monthly. Remember: base monthly child support does not include both parents sharing the costs of child health insurance equally, uninsured child health care equally, and work-related daycare equally. That’s all in addition to the base monthly child support amount. In other words, the custodial parent doesn’t have to spend out of that $761 per month for child health insurance, uninsured out of pocket health care, and daycare (the parents bear those expenses separately on an equal shares basis). $761 is likely more than what the parents would have spent on the child’s support had the parents resided together with the children under the same roof.

Don’t tell me that $761 per month isn’t enough to provide for a child’s needs monthly. Remember: base monthly child support does not include both parents sharing the costs of child health insurance equally, uninsured child health care equally, and work-related daycare equally. That’s all in addition to the base monthly child support amount. In other words, the custodial parent doesn’t have to spend out of that $761 per month for child health insurance, uninsured out of pocket health care, and daycare (the parents bear those expenses separately on an equal shares basis). $761 is likely more than what the parents would have spent on the child’s support had the parents resided together with the children under the same roof.

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What happens in court if I file for divorce but my husband has an active case on me for child support? Will I get the child?

Whether you “get the child” (meaning whether you will be awarded physical custody of the child) has little to no relevance to the fact that your spouse is seeking child support from you.

My guess is, based upon the way you phrased your question, that 1) you and your husband are separated and were separated before you filed, or before you have contemplated filing, for divorce; 2) the children have been, on an informal basis (i.e., no court order) your spouse has been exercising sole or primary custody of the children for a while since the separation occurred; and 3) your spouse has applied for an administrative order or court order for child support without having filed for a divorce. Under such circumstances, what would weaken your case for awarding custody to you would be the fact that the children have been in the sole or primary custody of your spouse during separation (and thus, the argument would go, that is the way it should stay, if and when a court issues a decree of divorce), not that he/she has sought child support from you.

If the children have been in the sole or primary custody of your spouse since separation and this is not due to your spouse having concealed the children from you, having absconded with the children, or having otherwise not obtained and exercised this de facto sole/primary custody wrongfully, then it’s not the fact that your spouse is seeking child support from you that hurts your case for custody. What hurts your case for custody being awarded to you is the fact that your spouse stepped up to take care of the kids and you did not.

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Eric Johnson’s answer to What happens in court if I file for divorce but my husband has an active case on me for child support? Will I get the child? – Quora

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How likely is a judge to give the non-custodial parent 50-50 parenting time after the primary custodial parent has been the primary parent for three years?

Before you read another word, know this: the answer in these situations is, “It depends on many and varying factors.” Nobody likes that kind of answer, but it’s the truth here.

Consult several attorneys in your jurisdiction about whether you may have a good case for a change of custody, if you believe you may. Many attorneys who consider themselves or bill themselves as “good and knowledgeable” attorneys on this subject don’t really know. Get second, third, and fourth opinions (but be warned: if an attorney tells you what sounds too good to be true, it likely is too good to be true and is being told to you to part you from your money).

Generally speaking, if no circumstances pertaining to the child custody award have changed substantially and materially during that three-year period, it is highly unlikely that the court would modify the child custody award and award the non-custodial parent custody of the children.

So, just what is a substantial and material change in circumstances pertaining to the child custody award? I cannot speak to how all jurisdictions define it, but in Utah (where I practice divorce and family law), the substantial and material change in circumstances that will lead to a change in the child custody award is overwhelmingly a change for the worse in the custodial parent’s circumstances. Even if the non-custodial parent could indisputably prove that he/she has significantly bettered himself/herself as a parent, if the custodial parent has become no worse than he/she was when the custody award was originally made, if his/her circumstances are substantially unchanged, then a modification custody will not likely be deemed appropriate or in the best interest of the child(ren).

But what if a court expressly stated that a parent was not awarded sole or joint custody due to suffering from some defect, that but for that defect he/she would have been awarded custody, and that the parent has since remedied the defect? In Utah, that could be a basis for modifying the child custody award. (See Hogge v. Hogge, 649 P.2d 51 (Supreme Court of Utah 1982)

If neither parent’s circumstances have substantially and materially changed, but the child’s circumstances have substantially and materially changed since the original custody award was made such that it would be in the child’s best interest for custody of the child to change, that could be a legitimate basis for seeking to modify the child custody award.

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

https://www.quora.com/How-likely-is-a-judge-to-give-the-non-custodial-parent-50-50-parenting-time-after-the-primary-custodial-parent-has-been-the-primary-parent-for-three-years/answer/Eric-Johnson-311?prompt_topic_bio=1

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The Problem with Private Guardians ad Litem. Part 1 of 3

Utah Code § 78A-2-705 provides that, “The court may appoint an attorney as a private attorney guardian ad litem to represent the best interests of the minor in any district court action when: child abuse, child sexual abuse, or neglect is alleged in any proceeding, and the court has made a finding that an adult party is not indigent as determined under Section 78B-22-202; or the custody of, or parent-time with, a child is at issue.

What is a guardian ad litem? According to Black’s Law Dictionary, a guardian ad litem is a lawyer, appointed by the court to appear in a lawsuit on behalf of an incompetent adult or on behalf of a minor child party. At first blush, the concept of a guardian ad litem sounds pretty good, right? Unfortunately, the way private guardians ad litem (known as PGALs, for short) are utilized in Utah’s courts in child custody disputes is simply wrongheaded and contrary to the fundamental principles of fact finding, due process of law, and justice itself.

Given that children have the greatest stake in the custody and parent-time awards, I cannot see how any competent jurist could justify barring a sufficiently (sufficiently, not excessively) competent, intelligent, mature, and credible minor child witness (especially, but not exclusively, a child who wants to testify) from testifying on those subjects.

PGALs are not appointed for the purpose of ensuring a child never testifies on/for the record in his/her own words, yet that is what many GALs/PGALs believe (and they act accordingly). I’ve encountered PGALs and judges who object to children who want to testify–not because the children are incompetent or incredible or in serious danger if they testify, but “as a matter of general principle” (whatever that means).

PGALs are not witnesses (expert or otherwise). PGALs cannot testify, but most PGALs I know believe they can testify, nonetheless. Most PGALs I know believe that they are an exception to the hearsay rule. Most PGALs I know believe that one of the purposes of their appointment is ensuring a child’s own, unfiltered, un-summarized, direct, on the record testimony is never heard. This is wrong. PGALs claim that one of their roles is to prevent the child from getting involved in the case. This is wrong too.

Every witness (child or otherwise) is inherently involved to some degree or another in the case in which the witness testifies. Most witnesses (even party witnesses) are reluctant witnesses. It has been my experience that, as a lazy, disingenuous way to prevent any child of any age from testifying for the record, those who oppose child testimony define “harm’s a child” as synonymous with “child is reluctant” or “child might be reluctant” or “the child’s testimony could upset a parent and the parent might retaliate against the child” or “simply having to contemplate the subjects raised in the course of testifying is asking too much of any child.” These lazy, disingenuous people equate any and all testifying from the mouth of the child on the record with inherently causing the child harm.

I could easily identify a dozen Utah attorneys who, with a straight face, will unqualifiedly agree with the statement, “Any child who testifies directly on the record on the subject of the custody or parent-time awards that will apply to him/her is unduly harmed by his/her testifying.” It’s a fatuously overbroad contention and they know (or should know) it, but it’s not about coming up with sincere, good-faith opposition to child testimony, it’s about contriving what is labeled an excuse (plausible or otherwise) to prevent child testimony.

Another “reason” for banning on/for the record child testimony that a child’s preferences and desires do not control the custody and parent-time awards. That’s embarrassingly disingenuous. I am aware of no one ever arguing, “Once the child has testified for the record, the court is inexorably bound to award custody and parent-time as the child wants,” yet I have seen many memoranda that argue against child testimony on the “grounds” that a child should not testify because “the [child’s] expressed desires [regarding future custody or parent-time schedules] are not controlling.” (see Utah Code Section 30-3-10(5)(b)(i)).

It is not my purpose, in seeking the testimony of children on subjects relevant to the custody and parent-time awards, to harm those children. By the same token, unless child testimony is honestly found to be unduly harmful to a child, then a child should not be prevented from testifying simply because someone can think of any kind of harm–no matter how slight–that testifying might cause the child.

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

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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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In re A.S.G.-R. – 2023 UT App 126 – permanent custody and guardianship

In re A.S.G.-R. – 2023 UT App 126

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF A.S.G.-R.,

A PERSON UNDER EIGHTEEN YEARS OF AGE.

G.R.,

Appellant,

v.

STATE OF UTAH AND E.G.,

Appellees.

Opinion No. 20220645-CA

Filed October 19, 2023

Fourth District Juvenile Court, Provo Department

The Honorable D. Scott Davis

No. 1196726

Alexandra Mareschal and Julie J. Nelson,

Attorneys for Appellant

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

Peterson, Attorneys for Appellee State of Utah

Neil D. Skousen, Attorney for Appellee E.G.

Martha Pierce, Guardian ad Litem

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

concurred.

HARRIS, Judge:

¶1        G.R. (Mother) became convinced that E.G. (Father) was sexually abusing their daughter, A.S.G.-R. (Child). Over a nearly two-year period, Mother made or sparked some thirty reports of sexual abuse to Utah’s Division of Child and Family Services (DCFS). After investigation, however, DCFS was unable to discover any credible evidence supporting Mother’s allegations, and therefore did not substantiate any of them. And given the number and repeated nature of the reports, DCFS became concerned that Child was being harmed by the allegations and ensuing investigations, some of which had included invasive physical examinations of Child.

¶2        Eventually, the State filed a petition for protective supervision and obtained an order removing Child from Mother’s custody and placing her with Father. After affording Mother fifteen months of reunification services, including a psychological evaluation and therapy, the juvenile court determined that the services had not resulted in sufficient change to the situation and that Child would be placed at substantial risk if she were returned to Mother, and therefore terminated reunification services. And after a four-day permanency hearing, the court entered a permanent custody and guardianship order in favor of Father.

¶3        Mother now appeals, arguing that the court erred in its decisions to not extend reunification services and to award permanent custody and guardianship to Father. We discern no reversible error in those decisions, and therefore affirm.

BACKGROUND[1]

¶4        Child was born in January 2017. Mother and Father separated shortly before Child’s birth, and about two years later they finalized their divorce. In the decree of divorce, Mother and Father were awarded joint legal custody of Child, but Mother was awarded primary physical custody with Father having statutory parent-time.

¶5        Child welfare officials first became involved with this family in November 2018, when DCFS made a supported finding of domestic violence with Father as the perpetrator and Child as the victim. At some point during this same time frame, Mother obtained a protective order against Father, based on allegations that he committed domestic violence against her also.

¶6        Beginning in May 2019, Mother began to make accusations that Father was sexually abusing Child. Over the course of the next two years, Mother made at least eight direct reports to DCFS of alleged sexual abuse. In addition, Mother reported her allegations to various medical and mental health professionals, some of whom also made reports to DCFS based on Mother’s representations. In total, between May 2019 and February 2021, some thirty separate reports were made to DCFS that Father was sexually abusing Child. DCFS investigated these reports and could not substantiate any of them. In connection with some of these reports, Mother took Child to the hospital. During two of these visits, Child—approximately three years old at the time— was subjected to invasive physical examinations, including one “code-R” rape examination.[2] The examinations yielded no evidence of abuse, and in January 2020 DCFS representatives spoke with Mother about the potential harm that could result to Child from repeated unfounded allegations and needless forensic medical examinations. In addition, in April 2020 the “medical director of Utah’s [Center for] Safe and Healthy Families” program advised Mother that subjecting Child to “any further sexual assault examinations could result in an allegation of abuse for [Mother] due to the harm that unnecessary examinations can cause a child.”

¶7        During this time frame, and in an effort to expand Mother’s understanding of the relevant issues, DCFS opened a “voluntary services case” to provide Mother the opportunity to take advantage of certain services, and Mother agreed to work with DCFS to try to improve the situation.

¶8        During the pendency of the voluntary services case, however, Mother hired a private investigator to investigate the possibility of sexual abuse by Father, and she did not tell DCFS that she had done so. This investigator interviewed Child, using techniques the juvenile court later found to “violate[] nearly every guideline for child forensic interviewing,” including “ask[ing] leading questions, [making] promises to [Child] that could not be kept, and offer[ing Child] ice cream if she would tell the interviewer what ‘daddy’s secret’ is.”

¶9        Despite DCFS’s efforts to assist Mother, the voluntary services case did not have its desired effect. Mother proved unable or unwilling to follow the plan DCFS outlined, and she stopped communicating with the DCFS caseworker.[3] Eventually, DCFS closed the voluntary services case.

¶10 Sometime after that case was closed, Mother—in a continuing effort to present evidence that Father was sexually abusing Child—took a video recording of Child in an incident the juvenile court described as follows: Mother “videotaped [Child], naked on a bed, having her point to where [Father] touches her. On the video, [Mother] touches [Child’s] genitals and has her spread her legs and moves the camera angle close-up to [Child’s] genitals.” Mother provided a copy of this recording to DCFS, but caseworkers declined to view it “based on concerns that it may potentially contain child pornography.” Mother then provided the video recording to law enforcement.

¶11      In January 2021, Mother again brought Child to a hospital, alleging that Child “disclosed that [Father] had put his mouth on [Child’s] vagina just hours prior.” Another invasive physical examination was performed on Child, yet “no male DNA was found on [Child’s] genitals.” DCFS was informed about this incident, presumably from hospital personnel, and investigated it; the investigation included interviewing Child at the Children’s Justice Center. After completing its investigation, DCFS found “no corroborating evidence” and concluded that Child’s “disclosure was coached” and “not credible.”

¶12      The present case was initiated in March 2021 when Mother sought a protective order barring Father from having contact with Child, and the State responded by not only intervening in the protective order case but also by filing this action: a petition for protective supervision services in which the State asked the court to “discontinue” the protective order, conclude that Child was “abused, dependent, and/or neglected,” award DCFS protective supervision of Child, and allow DCFS to place Child in Father’s custody during the pendency of the case.

¶13      At a shelter hearing held about a week later, the juvenile court ordered Child removed from Mother’s custody and placed in the temporary custody of DCFS, which then placed Child, on a preliminary basis, with Father. Child has remained in Father’s care ever since.

¶14      Later, at a subsequent hearing, the court found, based on stipulation, that Child was dependent as to Father. With regard to Father, the court indicated that the primary permanency goal was “Reunification/REMAIN HOME,” and that the concurrent goal was “Remain Home with non-custodial parent.”

¶15      The court held an adjudication hearing as to Mother; at that hearing, Father and the guardian ad litem (the GAL) asserted that Mother’s conduct—making repeated false claims of sexual abuse, thereby subjecting Child to interviews, investigations, and physical examinations—constituted abuse, but the State argued only for a finding of neglect. After the hearing, the court found “no specific evidence” of harm to Child that could support a finding of abuse, but instead determined that Child “is neglected” as to Mother because Child “lacks proper care by reason of the fault or habits of [Mother].” For Mother, the court set a primary permanency goal of “RETURN HOME” and a concurrent permanency goal of “Permanent Custody and Guardianship with a Relative.” The court explained that it was setting “different permanency goals for each parent,” and that for Father, “the primary goal will be” for Child to “remain[] home with him,” with “the concurrent goal of reunification if she is removed from his care.” For Mother, the primary goal was “reunification, with the concurrent goal of guardianship with [a] relative.”

¶16 In connection with setting these permanency goals, the court adopted a Child and Family Plan (the Plan). Under the terms of the Plan, Mother was required to, among other things, “complete a psychological evaluation and follow through with all recommendations”; “participate in individual therapy”; participate in a “parenting class”; and “maintain stable and appropriate housing” for herself and Child. The Plan also required Mother to be “open and honest” in connection with the psychological evaluation, as well as with therapists and other mental health professionals. The Plan provided that its objectives would “be achieved when [Child] is living at [Mother’s] home” and when Mother “is providing a healthy, stable, and age-appropriate environment . . . that supports a strong co-parenting relationship with” Father. No party lodged any objection to the terms of the Plan or to the permanency goals the court set.[4]

¶17 Thereafter, Mother completed a parenting class as well as—after some delay that may or may not have been attributable to her—the required psychological evaluation. The psychologist who conducted the evaluation (Evaluator) diagnosed Mother with “unspecified personality disorder” characterized by “symptoms indicative of borderline, histrionic, and narcissistic personality disorders as well as paranoid-like features.” In particular, Evaluator noted that Mother has “a belief that she can only be understood by a few people,” a “sense of entitlement,” a “lack of empathy,” and a “pervasive distrust and suspiciousness of others” that leads her to sometimes “suspect[], without sufficient basis, that others are harming and deceiving her.” Evaluator offered his view that, “unless [Mother] overcomes her psychopathological features,” she “cannot act in [Child’s] best interest.” He noted that the “obvious recommendation” for Mother would be for her to “pursue an effective treatment program,” but he was doubtful that such a program would succeed in Mother’s case, because Mother “is convinced that she is not the problem” and because, “given her personality disorder features, . . . it would be hard for [Mother] to develop an effective psychotherapeutic alliance with her psychotherapist.”

¶18 Thereafter, DCFS sent Mother a list of recommended therapists, and Mother attended therapy sessions with at least three different mental health professionals. DCFS expressed concern that Mother “was seeking out multiple providers,” some of whom reported that Mother was attempting to “get a second opinion on the psychological evaluation,” and DCFS was worried that Mother was “continu[ing] to report” to these therapists “that [Child] was being sexually abused.” Because of this, DCFS harbored a “concern that there is no clear progress in therapy, due to minimal communication from providers, multiple providers involved and regular changes in therapy.” Mother maintains, however, that she “engaged in all recommended therapy,” an assertion no party apparently contests, although the record is far from clear about what the specific recommendations were and exactly how Mother complied with them.

¶19 After the psychological evaluation was completed, the parties appeared for a review hearing before the court. At that hearing, the results of the evaluation were discussed, and the court commented that, “if the case were closed today and things returned to how they were before the case, [Child] would be at risk of harm by” Mother. The court ordered that Child remain in DCFS custody and placed with Father, with whom the court stated it had “no safety concerns.”

¶20 As the twelve-month permanency hearing approached, Mother moved for an extension of reunification services for “at least 90 days.” Mother argued that she had complied with the Plan, in that she had completed the parenting class and the psychological evaluation and had engaged in therapy. In this motion, Mother also argued that the juvenile court could not enter an order of permanent custody and guardianship with Father, because the district court had already entered a custody order, in connection with the parties’ divorce case, and in Mother’s view the district court should be the court to enter and modify custody orders between the parents. Father opposed Mother’s motion for extended services, but the State did not register opposition. The court scheduled an evidentiary hearing to consider the matter. But due to problems with witness subpoenas, the evidentiary hearing needed to be postponed, which resulted in Mother’s motion for an extension of services being de facto granted: services were then extended for another ninety days, and the postponed evidentiary hearing was turned into a permanency hearing.

¶21      After these delays, the permanency hearing was held, over four nonconsecutive trial days, in April and June 2022. Child’s DCFS caseworker testified that she believed that Mother had been “coaching [Child] into telling people certain things.” And Child’s psychologist testified that she “did not observe significant behaviors or concerns, [or] emotions concerning expressions that would signal to [her] that [Child] has experienced sexual abuse.”

¶22      Evaluator testified at length during the trial, and discussed the specifics of his evaluation of Mother. He discussed his diagnosis that Mother had an “unspecified personality disorder.” He testified that the evaluation took longer than anticipated because Mother “did not involve herself in the evaluation in a forthright manner,” “withheld relevant information that was requested of her,” and “intentionally distorted information.” In his view, Mother did not think that she was the problem or that she had done anything wrong. Evaluator reiterated his view that unless Mother “overcomes her psychopathological features, [she] cannot act in [Child’s] best interest.”

¶23 During her own testimony, Mother continued to cling to her viewpoint that Father had been sexually abusing Child. She testified that “she does not agree with a doctor’s opinion that there was no evidence of sexual abuse.” When asked whether she “still believe[d]” that Father had sexually abused Child, she answered that she did not know, but that some “part of [her]” still believed that abuse took place, and that she still had “a suspicion” in that regard. She did not recognize any impropriety in her multiple reports of sexual abuse to DCFS and other authorities, testifying that she did not “think [she] was doing anything incorrectly” regarding the parenting of Child. And she did not agree that her behavior constituted neglect of Child.

¶24      In this same vein, Mother also called her ongoing therapist to testify at the trial. The therapist testified that he had spent some thirty hours of therapy with Mother and that she had been cooperative. The therapist opined, to the extent he was able to as a fact witness, that Evaluator’s diagnosis of an “unspecified personality disorder” was incorrect, that Mother had not neglected Child by reporting sexual abuse to the authorities, and that Father had indeed sexually abused Child.

¶25      At the conclusion of the trial, the juvenile court took the matter under advisement. A few weeks later, the court issued a written decision containing several different rulings. First, the court declined Mother’s invitation to further extend reunification services, and it terminated those services. Important to the court’s decision in this regard were its findings that—although Mother had taken certain steps, including completing parenting classes, engaging in therapy, and completing the psychological evaluation—Mother had not fully complied with the terms of the Plan, because even after all of these services, Mother “accepted virtually no responsibility for [Child] being in DCFS custody for more than one year,” “demonstrated virtually no insight regarding the harm she has caused” to Child, and offered “varied and conflicted” testimony “regarding whether she still believed” that Father had sexually abused Child, “despite there being no credible evidence that he has.” The court also determined that reunification between Mother and Child was not “probable or likely within the next 90 days” and that the extension of services was not in Child’s best interest.

¶26 Second, the court awarded “permanent custody and guardianship” of Child to Father. Important to the court’s decision in this regard were its findings that “return of [Child] to [Mother’s] care would create a substantial risk of detriment to [Child’s] physical or emotional well-being,” that there is “no credible evidence” that Father has ever sexually abused Child, and that Child “seems to be thriving and well-adjusted [and] well cared for” in Father’s care.

¶27 Finally, after denying Mother’s request for additional reunification services and granting permanent custody and guardianship in favor of Father, the court terminated its jurisdiction in the case.

ISSUES AND STANDARDS OF REVIEW

¶28 Mother now appeals, and she raises two issues for our consideration. First, she challenges the juvenile court’s decision to terminate reunification services. The juvenile court is “in the best position to evaluate the credibility of witnesses, the parent’s level of participation in reunification services, and whether services were appropriately tailored to remedy the problems that led to the child’s removal.” In re D.R., 2022 UT App 124, ¶ 9, 521 P.3d 545 (quotation simplified), cert. denied, 525 P.3d 1264 (Utah 2023). Accordingly, “absent a demonstration that the determination was clearly in error, we will not disturb the determination” to terminate reunification services. See id. (quotation simplified).

¶29      Second, Mother challenges the juvenile court’s decision to award permanent custody and guardianship to Father, her fellow parent. As part of this challenge, she takes issue with the court setting slightly different permanency goals for each parent, and with the court accomplishing two separate objectives—namely, choosing among those goals and awarding permanent custody to Father—all in connection with the same hearing. In the main, Mother’s challenges in this regard involve questions of statutory interpretation, which “are questions of law that we review for correctness.” In re S.Y.T., 2011 UT App 407, ¶ 9, 267 P.3d 930 (quotation simplified). But to the extent that Mother here challenges the court’s underlying factual findings, we adopt a more deferential standard of review. See In re L.M., 2013 UT App 191, ¶ 6, 308 P.3d 553 (“We review the juvenile court’s factual findings for clear error . . . .” (quotation simplified)), cert. denied, 320 P.3d 676 (Utah 2014).[5]

ANALYSIS

I

¶30      Mother first challenges the juvenile court’s decision to terminate reunification services. For the reasons discussed, we discern no clear error in the court’s decision.

¶31 When a juvenile court removes a child from a parent’s custody, it may afford the parent the opportunity to take advantage of certain services—e.g., mental health counseling or parenting classes—designed to address the problems that led to removal and aimed at facilitating reunification between parent and child. See Utah Code § 80-3-406. However, due to the need for swift permanence in child welfare cases, the duration of reunification services may not ordinarily “exceed 12 months” from the date of removal. See id. § 80-3-406(13)(a); see also id. § 80­3-409(6). A juvenile court may, however, extend reunification services by an additional “90 days”—for a total of fifteen months—if the court finds, by a preponderance of the evidence, “that (i) there has been substantial compliance with the child and family plan; (ii) reunification is probable within that 90-day period; and (iii) the extension is in the best interest of the minor.” Id. § 80-3­409(7)(a). And in exceptional cases, the court may extend services for a second ninety-day period—for a total of eighteen months— but only if the court can make those same three findings by clear and convincing evidenceId. § 80-3-409(7)(c).

¶32      In this case, Child was removed from Mother’s custody at a shelter hearing in March 2021. Thus, reunification services were to presumptively end in March 2022, unless the court made findings sufficient to support an extension. In early April 2022, the court commenced an evidentiary hearing for the purpose of determining whether reunification services should be terminated or extended but, due to problems with witness subpoenas, the evidentiary hearing needed to be postponed, which resulted in a de facto extension of reunification services for another three months, into June 2022. Finally, at the conclusion of the four-day hearing that same month, the court ordered that reunification services be terminated. In its order, the court—presumably out of an abundance of caution given the timing of the hearing—stated that it was “not able to find by a preponderance of the evidence, and certainly not by clear and convincing evidence, that [Mother] is in substantial compliance with [the Plan], that reunification . . . is probable or likely within the next 90 days, or that extension of services for [Mother] is in [Child’s] best interest.”

¶33 Mother challenges this decision, asserting that it goes against the clear weight of the evidence because, she asserts, she at least substantially complied with the Plan. We acknowledge that Mother did take certain actions that the Plan required, such as completing the psychological evaluation and participating in parenting classes and individual therapy, and we therefore agree with Mother’s assertion that she complied with many—if not necessarily all[6]—of the Plan’s individual requirements.

¶34      But even taking Mother’s assertion—that she completed all of the Plan’s individual subsidiary tasks—at face value, that does not necessarily compel the conclusion that Mother substantially complied with the Plan, because in this case Mother’s efforts did not bear fruit. That is, at the end of fifteen months of reunification services, Mother had not rectified the problem that led to the removal of Child from her custody. The Plan explicitly stated that its goals would be “achieved when [Child] is living at [Mother’s] home [and] where Mother is providing a healthy, stable, and age-appropriate environment . . . that supports a strong co-parenting relationship with [Father].” Child was removed from Mother’s custody because Child lacked “proper care by reason of the fault or habits of [Mother]” due to Mother’s continued unsupported reports to authorities that Father was sexually abusing Child. After fifteen months of services, the court—based at least in part on Mother’s own testimony at the evidentiary hearing— determined that the original problem still existed, and that Child could not therefore safely be returned to Mother’s custody. It is far from clear error for a juvenile court to determine that a parent who has completed many of a child and family plan’s individual requirements, but who has still not meaningfully addressed the underlying problem the plan was designed to solve, has not substantially complied with the plan.

¶35      Moreover, even if we were to assume, for the purposes of the discussion, that Mother’s actions constituted substantial compliance with the Plan, Mother must also grapple with the juvenile court’s findings that reunification was not probable within the next ninety days, and that another extension of reunification services was not in Child’s best interest. See Utah Code § 80-3-409(7)(a)(ii), (iii); see also In re H.C., 2022 UT App 146, ¶ 54, 523 P.3d 736 (“Although [the mother] subsequently complied with the child and family plan, the court nonetheless determined that [the child] could not safely be returned to her care because it found that the return posed a substantial risk of detriment to [the child’s] physical or emotional well-being.”), cert. denied, 527 P.3d 1106 (Utah 2023). While Mother spends many pages in her brief contesting the court’s “substantial compliance” finding, she does not directly engage with the court’s findings that, given her lack of progress on solving the underlying problem, she had not shown—by either evidentiary standard— that reunification was probable in the next ninety days or that reunification was in Child’s best interest. And based on our review of the record, we discern no clear error in these findings.

¶36      Accordingly, we discern no error, let alone reversible error, in the juvenile court’s decision to terminate reunification services.

II

¶37 Next, Mother challenges the juvenile court’s decision to award permanent custody and guardianship to Father. Her challenge in this regard is multi-faceted. First, she challenges the substance of the court’s decision, and asserts that the court—by considering its options limited to those set forth in section 80-3­409(4)(b) of the Utah Code—erred in its interpretation of the governing statute. And in connection with this argument, Mother asks us to overrule one of our recent opinions. Second, Mother challenges the procedure the court used in reaching its decision. For the reasons discussed, we reject Mother’s arguments.

A

¶38      Under our law, in any case in which reunification services are ordered, “the juvenile court shall, at the permanency hearing, determine . . . whether the minor may safely be returned to the custody of the minor’s parent.” See Utah Code § 80-3-409(2)(a). And “[i]f the juvenile court finds, by a preponderance of the evidence, that return of the minor to the minor’s parent would create a substantial risk of detriment to the minor’s physical or emotional well-being, the minor may not be returned to the custody of the minor’s parent.” Id. § 80-3-409(2)(b).

¶39      In this case, as already discussed, the juvenile court ordered reunification services for Mother, and therefore needed to confront, at the permanency hearing, the question of whether Child faced “substantial risk of detriment to her physical and emotional well-being if returned to [Mother’s] care.” In its findings and conclusions entered following that hearing, the court specifically found, by “both a preponderance of the evidence” and by “clear and convincing evidence, that return of [Child] to [Mother’s] care would create a substantial risk of detriment to [Child’s] physical or emotional well-being.” Mother does not directly challenge that finding on appeal.[7]

¶40      In situations where a juvenile court makes a finding of risk and therefore determines that a child cannot be returned to the parent’s custody, our law then requires the court to do certain things: “(a) order termination of reunification services to the parent; (b) make a final determination regarding whether termination of parental rights, adoption, or permanent custody and guardianship is the most appropriate final plan for the minor . . . ; and (c) . . . establish a concurrent permanency plan that identifies the second most appropriate final plan for the minor, if appropriate.” Id. § 80-3-409(4). As discussed above, the court terminated reunification services, and did not err by so doing.

¶41      The court then considered the three options presented by the second part of the governing statute: termination of parental rights, adoption, or permanent custody and guardianship.[8] See id. § 80-3-409(4)(b). The court determined that permanent custody and guardianship with Father was the most appropriate of those three options.

¶42      Mother challenges the substance of this determination, and she makes two specific arguments. First, she asserts that the statutory subsection the court believed governed the situation— section 80-3-409(4) of the Utah Code—doesn’t actually govern, because in Mother’s view Child was “returned to” a parent (Father) after the permanency hearing. Second, and relatedly, Mother acknowledges that one of our recent decisions—In re H.C., 2022 UT App 146, 523 P.3d 736, cert. denied, 527 P.3d 1106 (Utah 2023)—interpreted the governing statute in a manner unfavorable to her, and she asks us to overrule that recent case. We find neither of Mother’s arguments persuasive.

1

¶43 Mother’s first argument challenges the juvenile court’s interpretation of statutory text. In particular, she notes that a threshold requirement of the governing statute is that the minor not be “returned to the minor’s parent or guardian at the permanency hearing.” See Utah Code § 80-3-409(4). Only if a child is not “returned to the minor’s parent” at the permanency hearing does a court need to choose from one of the three options set forth in subsection (4)(b): termination, adoption, or permanent custody and guardianship. See id. If a child is “returned to the minor’s parent,” then a court presumably could select some other option not listed in subsection (4)(b). As Mother sees it, the statutory reference to “the minor’s parent” includes not only the parent from whom the child was removed and with regard to whom the “substantial risk” determination is being made, but also the child’s other parent. And she asserts that, because Child was placed in the custody of Father—Child’s other parent—after the permanency hearing, the court erred by considering itself limited to the three options set out in subsection (4)(b).

¶44      Our “overarching goal” in interpreting a statute is “to implement the intent of the legislature.” See State v. Rushton, 2017 UT 21, ¶ 11, 395 P.3d 92. In attempting to ascertain that intent, we start with “the language and structure of the statute.” Id. “Often, statutory text may not be plain when read in isolation, but may become so in light of its linguistic, structural, and statutory context.” Id. (quotation simplified). “The reverse is equally true: words or phrases may appear unambiguous when read in isolation, but become ambiguous when read in context.” Id. For this reason, “we read the plain language of the statute as a whole, and interpret its provisions in harmony with other statutes in the same chapter and related chapters, avoiding any interpretation which renders parts or words in a statute inoperative or superfluous in order to give effect to every word in the statute.” Id. (quotation simplified).

¶45 In our view, the phrase “the minor’s parent,” as used in section 80-3-409(4), refers only to the parent from whom the child was removed, who was offered reunification services, and to whom return of the child “would create a substantial risk of detriment” to the child. It does not refer to another parent with whom the child is currently placed, who has not been ordered to complete any reunification services, and with regard to whom the court has not made any “substantial risk” determination. Indeed, the thrust of this entire statutory section has to do with whether a child will be reunited with a parent from whom the child has been removed and who has received reunification services. See Utah Code § 80-3-409. As already noted, subsection (2) requires a court to make a threshold determination about whether the “minor may safely be returned to the custody of the minor’s parent,” something that may not occur if “return of the minor to the minor’s parent would create a substantial risk of detriment” to the minor. Id. § 80-3-409(2)(a), (b). The verb “returned” is meaningful here: one does not “return” to a situation in which one has never been in the first place. See Return,    Merriam-Webster, https://www.merriam-webster.com/dictionary/return            [https://perma.cc/Y4YF-3ENP]
(defining “return” as “to go back or come back again”). In the subsection (2) context, the phrase “the minor’s parent” clearly refers to the parent from whom the minor was removed, who received reunification services, and with regard to whom the “substantial risk” determination is being made; indeed, the statute instructs juvenile courts that are making the subsection (2) threshold determination to consider, among other things, whether the parent in question has demonstrated “progress” and whether the parent has “cooperated and used the services provided.” See Utah Code § 80-3-409(3)(a)(iv), (v). In our view, it would be nonsensical to apply this phrase to the minor’s other parent in a situation where the child was already in the custody of that parent at the time of the permanency hearing, where that parent did not receive reunification services, and where the court made no “substantial risk” determination concerning that parent at that hearing. Indeed, at oral argument before this court, Mother conceded that the phrase “the minor’s parent,” as used in subsection (2), must refer solely to the parent who received reunification services and with regard to whom the “substantial risk” determination is being made.

¶46 That same phrase—“the minor’s parent”—used two subsections later means the same thing. As noted, we read statutes as a whole, including all of their subsections, and “interpret [their] provisions in harmony with other statutes in the same chapter and related chapters.” See Rushton, 2017 UT 21, ¶ 11 (quotation simplified). Under “the canon of consistent meaning,” there is a “presumption that the established meaning of a word in a given body of law carries over to other uses of the same term used elsewhere within that same law.” In re Childers-Gray, 2021 UT 13, ¶ 142, 487 P.3d 96 (Lee, J., dissenting). And the “canon of consistent meaning is at its strongest when it is applied to a term used in neighboring subparts of the same statutory provision.” Irving Place Assocs. v. 628 Park Ave, LLC, 2015 UT 91, ¶ 21, 362 P.3d 1241; see also Barneck v. Utah Dep’t of Transp., 2015 UT 50, ¶ 31, 353 P.3d 140 (determining that a term “cannot properly mean one thing as applied to two of the objects in a series . . . but something else as applied to the other object in the same series”). Thus, when assessing the meaning of the phrase “the minor’s parent” in subsection (4), it is highly relevant how that phrase is used in subsection (2). And we conclude that, interpreted in its proper context, the phrase—as used in subsection (4) as well as subsection (2)—refers only to the parent from whom the child was removed, who received reunification services, and with regard to whom the court is making the “substantial risk” determination, and not to another parent who does not fit those criteria.

¶47      Accordingly, we reject Mother’s argument that subsection 409(4) has no application to her situation. By the plain terms of that statutory section, the juvenile court—as soon as it determined that Child could not safely be returned to Mother—was obligated to apply that statutory subsection according to its text.

2

¶48      Under the text of that statutory subsection, a court that has made a “substantial risk” determination must terminate reunification services. See Utah Code § 80-3-409(4)(a). At that point, the statute requires the court to “make a final determination regarding whether termination of parental rights, adoption, or permanent custody and guardianship is the most appropriate final plan for the minor.” Id. § 80-3-409(4)(b). The language of this statutory subsection therefore speaks of only three options, and requires the court in this situation to choose one of them. And we have recently interpreted this language according to its text, even as applied to disputes between parents. See In re H.C., 2022 UT App 146, 523 P.3d 736, cert. denied, 527 P.3d 1106 (Utah 2023).

¶49      Yet here, Mother nevertheless asserts that, at least in cases involving disputes between two parents, juvenile courts ought to be allowed to choose a different option: entry of a simple custody order that is controlled by the usual standards governing entry and modification of custody orders in divorce court. Mother asserts that awarding a parent the status of “guardian” makes no sense, given that a parent already has all the rights that a guardian has. And she asserts that entering orders of permanent guardianship as between parents has the effect—one she posits was unintended—of preventing one parent from being able to seek modification of the custody order.

¶50      To her credit, Mother recognizes that our recent holding in In re H.C. forecloses her argument for a fourth option. In that case, the parents of a child were divorced, with a parenting plan that gave primary custody to the mother. Id. ¶ 2. But later, the juvenile court determined that the child had been neglected by the mother, and the child was placed in the care of the father. Id. ¶¶ 4, 8. After the permanency hearing, the juvenile court determined that the child would be at substantial risk if returned to the mother’s custody, and the court placed the child with the father under an order of permanent custody and guardianship. Id. ¶¶ 28, 38. On appeal, we affirmed the juvenile court’s decision, and we interpreted subsection 409(4)(b) as limiting the juvenile court to the three options set forth therein. Id. ¶ 58. We held that subsection 409(4)(b) “leaves a juvenile court judge with no discretion” to do anything else, and we specifically stated that the statute “does not vest the juvenile court with the authority to defer to the district court” with regard to custody of the adjudicated child. Id. (quotation simplified).

¶51      In an effort to get around this roadblock, Mother asks us to overrule In re H.C. We do possess the authority to overrule our own precedent in appropriate cases. See State v. Legg, 2018 UT 12, ¶ 11, 417 P.3d 592 (stating that one panel of this court “retains the right to overrule another panel’s decision if the appropriate standard is met”). “But we do not do so lightly,” given our respect for the principle of stare decisis, which ordinarily requires us to defer to “the first decision by a court on a particular question.” See State v. Garcia-Lorenzo, 2022 UT App 101, ¶¶ 42, 44, 517 P.3d 424 (quotation simplified), cert. granted, 525 P.3d 1263 (Utah 2022).

¶52      “Before we may overrule one of our precedents, we must engage in the two-part exercise required by our supreme court in such situations.” Id. ¶ 45. “First, we must assess the correctness of the precedent, and specifically examine the persuasiveness of the authority and reasoning on which the precedent was originally based.” Id. (quotation simplified). “Second, we must assess the practical effect of the precedent, including considerations such as 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. (quotation simplified). Both parts of the test must be satisfied before we may overrule a precedent. See id. In this case, we need not discuss the second part because, in our view, the first one is not satisfied.

¶53 With regard to the first part—the correctness of the precedent—Mother asserts that our decision in In re H.C. “upends the district court’s jurisdiction over custody matters and imposes an unnecessarily restrictive scheme on custody between two parents.” She points out that, when a child is placed with the other parent after a permanency hearing, “the child isn’t in ‘legal limbo’” and “all that is left to determine is what [the] custody [arrangement] between the parents will look like.” And she maintains that, if subsection 409(4)(b) is interpreted to require courts to order permanent custody and guardianship in favor of one of the parents, that result would serve to “override[] district court custody orders” and would create a “super sole custody” arrangement in which “the non-guardian parent can never modify the terms of the guardianship.” She asserts that this is an “absurd result” that “cannot be what the legislature intended.”

¶54 But in our view, the panel’s reasoning in In re H.C. was sound. There, the court analyzed the text of subsection 409(4)(b) and concluded that the language used by the legislature limited juvenile courts in this situation to the three options set forth in the text of the statute. See In re H.C., 2022 UT App 146, ¶¶ 58–59. Our analysis of that same text leads us to the same conclusion.

¶55      Moreover, Mother overlooks the fact that the panel in In re H.C. considered many of the same arguments that Mother is advancing here. In that case, the appellant asserted that “juvenile courts should not be deciding custody between two fit parents.” Id. ¶ 52 (quotation simplified). And the appellant complained that an order of permanent custody and guardianship in favor of the other parent may prevent her “from petitioning for custodial change in the future.” Id. ¶ 53. We rejected these arguments, in part, by noting that, given the court’s adjudication rulings, “this was not merely a custody proceeding ‘between two fit parents.’” Id. ¶ 54. And we acknowledged the remainder of these arguments in a footnote, editorializing that “it seems odd that, in a situation such as this with two parents vying for custody of a minor child, the statute authorizes the award of permanent guardianship to one parent over the other, where both enjoy parental rights in the minor child.” Id. ¶ 59 n.13. But we found these arguments nevertheless unpersuasive in light of the text of the “statutory regimen that we [were] called upon to interpret and apply.” Id.

¶56      We share the sentiment of the panel in In re H.C. that the text of the governing statute compels the interpretation described there. The text selected and enacted by our legislature limits juvenile courts to just three options in this situation. See id. ¶¶ 58– 59 & n.13 (stating that “permanent custody and guardianship is one of only three options available by the terms of the controlling statute when parental neglect has triggered the juvenile court’s jurisdiction and the case progresses to a permanency hearing at which parental neglect is found and reunification services are terminated”). If our legislature intended a different result, it can always amend the statute to provide for additional options—for instance, entry of a simple custody order awarding primary physical custody to the other parent, and allowing the district court to manage things from there—that a juvenile court might be able to apply in cases involving disputes between two parents. But for now, the text of the governing statute speaks of only three options, applicable in all cases, and we must apply the statute as written, Mother’s policy arguments notwithstanding.[9]

¶57 For all of these reasons, we decline Mother’s invitation to overrule In re H.C. That case—and the statutory text interpreted therein—compels the conclusion that the juvenile court, in this case, had only three options after concluding that it could not return Child to Mother’s custody: it had to either (a) terminate Mother’s parental rights, (b) work toward adoption, or (c) enter an order of permanent custody and guardianship with someone other than the parent at issue. See Utah Code § 80-3-409(4)(b); see also In re H.C., 2022 UT App 146, ¶¶ 58–59. The juvenile court, by selecting permanent custody and guardianship in favor of Father, chose one of the available options.[10] In so doing, the court properly followed the governing statute, and did not misinterpret it. We therefore reject Mother’s second substantive argument.

B

¶58      Finally, Mother makes two challenges to the procedure the juvenile court employed in arriving at its conclusion to award permanent custody and guardianship to Father. We reject both challenges.

¶59 First, Mother claims that the court acted inappropriately when it took the following two actions in the same ruling and after the same hearing: (a) it changed Child’s final permanency goal to permanent custody and guardianship and (b) it entered an order effectuating the permanent custody and guardianship. As Mother sees it, the court was required “to first change the permanency goals . . . and then hold a review hearing (possibly another evidentiary hearing) to determine whether the final permanency goal is established.” Mother notes that “nothing in section 409 permits a juvenile court to” accomplish both things in the same ruling and after the same hearing. But Mother cites no statute or appellate opinion forbidding the court from doing so and, in this situation, we see no reason why the court could not have proceeded as it did.

¶60 Had the court chosen “adoption” as the primary permanency goal following the permanency hearing, then perhaps Mother would have a point: as a practical matter, setting adoption as the goal entails a fair bit of extra work. To facilitate an adoption, the parent’s rights would need to be terminated, and to make that happen, the State (or another petitioner) would need to file a petition for termination of parental rights, which would need to be litigated. And the juvenile court would also need to concern itself, in the event the parent’s rights were terminated, with finding an appropriate adoptive placement for the child.

¶61 But where the court selects permanent custody and guardianship as the primary permanency goal, and the child is already placed with the person to whom custody and guardianship is to be given, there are not necessarily any additional steps that the court needs to take before making that goal a reality. Certainly, in this case Mother doesn’t identify any additional work that needed to be done in the interim. And as noted, Mother points to no statute or governing case forbidding the juvenile court, in cases like this one, from proceeding efficiently and entering the order of guardianship in the same order as it selects the primary permanency goal. Mother has therefore not carried her burden of demonstrating error.

¶62 Second, Mother takes issue with the juvenile court’s decision, earlier in the case, to set different permanency goals for each parent. As noted above, after adjudicating Child dependent as to Father, the court initially set the primary permanency goal, as to Father, as “Reunification/REMAIN HOME,” and the concurrent permanency goal as “Remain Home with non­custodial parent.” Later, after adjudicating Child neglected as to Mother, the court set a primary permanency goal, as to Mother, of “RETURN HOME” and a concurrent permanency goal of “Permanent Custody and Guardianship with a Relative.” The court explained that it was setting “different permanency goals for each parent,” and that for Father, “the primary goal will be” for Child to “remain[] home with him,” with “the concurrent goal of reunification if she is removed from his care.” For Mother, the primary permanency goal was “reunification, with the concurrent goal of guardianship with [a] relative.” Mother challenges this procedure as improper, asserting that this choice made “it additionally difficult for any parent to determine what the effect of abandoning one of the primary plans would be.” But Mother cites no statute or governing case forbidding the court from engaging in this procedure, and she overlooks the fact that she did not object to these goals when they were set. In addition, Mother does not articulate how the court’s decision to set slightly different permanency goals vis-à-vis each parent resulted in any harm to her at the end of the case. Accordingly, Mother has not carried her burden of demonstrating reversible error.[11]

CONCLUSION

¶63 We discern no clear error in the juvenile court’s decision to terminate reunification services. And we reject Mother’s challenges—both substantive and procedural—to the court’s award of permanent custody and guardianship to Father.

¶64 Affirmed.

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

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

In re H.M. – 2023 UT App 122

THE UTAH COURT OF APPEALS

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

PERSONS UNDER EIGHTEEN YEARS OF AGE.

G.B.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20220774-CA

Filed October 13, 2023

First District Juvenile Court, Logan Department

The Honorable Kirk M. Morgan

No. 1187751

Julie J. Nelson and Alexandra Mareschal,

Attorneys for Appellant

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

Peterson, Attorneys for Appellee State of Utah

Jonathan P. Thomas, Attorney for Father

Martha Pierce, Guardian ad Litem

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

TENNEY, Judge:

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

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

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

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

BACKGROUND

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

Allegations of Abuse from 2015 Through 2020[1]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Protective Supervision Services Case

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

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

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

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

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

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

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

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

Mother’s Allegations Against Father Resume

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

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

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

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

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

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

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

Termination Proceedings

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

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

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

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

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

Trial

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

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

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

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

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

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

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

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

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

Termination Decision

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

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

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

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

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

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

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

ISSUES AND STANDARDS OF REVIEW

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

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

ANALYSIS

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

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

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

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

  1. Present-Tense Best Interest of the Children

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  1. Supervised Visitation

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

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

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

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

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

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

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

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

III. Mother’s Additional Arguments

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

  1. Adoption

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

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

  1. “Piling On”

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

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

  1. Mandatory Reporting

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

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

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

CONCLUSION

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

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


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

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

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

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

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

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I Am 14 and I Want to Live With My Dad. My Parents Have Shared Custody, but My Mom Wants to Keep Me Her Alone (And She’s Not a Good Person). How Do I Stay With My Father Full Time?

I will answer this question in the context of Utah law because I am licensed as an attorney and practice divorce and family law in the state of Utah.

For the typical child in your situation, i.e., one who wants to obtain a modified order from the court changes the award of child custody from one parent to another, there is precious little that the child can do to affect this kind of change.

In fairness, there are some good policy reasons for why this situation arises. For example:

  • Young children often have poor judgment and may not know whether residing primarily with the parent the children wants to reside is in the child’s best interest.

–   A 9-year-old child may say he/she wants to live with a particular parent not because that parent is a fit parent but just the opposite, i.e., doesn’t ensure the child completes homework, chores, doesn’t ensure the child practices good hygiene, feeds the child junk for meals, imposes no discipline, etc.

–   A tween-age or teen-age child may say he/she wants to live with a particular parent not because that parent is a fit parent but because that parent lets the child run wild, skip school, drink, smoke, take drugs, be sexually active, etc.

  • Many young children can be too easily manipulated and/or intimidated into saying that they want what they don’t really want by way of the custody and parent-time schedule.
  • Some feel that seeking the input of children on the subject of the child custody and parent-time awards “traumatizes” (this word is grossly overused in family law) children by placing them in a position where they must favor or choose one parent over another.

These are clearly factors worth carefully considering if and when a child objects to residing with a particular parent or objects to a particular custody or parent-time schedule. But too often courts invoke these factors as a reason to utterly silence and to completely ignore anything a child has to say on. Why?

Is it because all minor children are clearly unable to be taken seriously because of their status as minor children? Obviously not. While some children may be too young or too immature to have sound bases for, or to make sound arguments for, their custodial preferences, plenty of children are more than sufficiently intelligent and mature and responsible to be credible witnesses on their own behalf. And we’ll never know whether a child is a credible or an incredible witness if we don’t inquire with the child first. Courts reject the testimony of lying and incompetent witnesses all the time (as well they should), yet many courts reject a child’s testimony without giving the child a chance to speak on the grounds that they might lie, that they might be coached, and/or that they might be too stupid or naïve to be taken seriously. That’s no different than convicting a defendant without a fair trial because he “might be” guilty.

Is it because asking a child to express his/her opinions is inherently and irreparably harmful to all children, or even to most children? Obviously not. If a child tells his/her parents and the court, “Don’t ask me to talk about this,” then it may be that honoring that child’s wishes is best. By the same token, however, if a child tells his/her parents and the court something to the effect of:

  • “I have a greater stake in the child custody and parent-time awards than anyone else involved in this case.”
  • “I have experiences, observations, opinions, and desires that deserve to be considered before the court makes these decisions that will affect my life for years to come as a youth and throughout my life as an adult.”

So why do some (most, though not all) courts refuse to hear from children about their custodial preferences and the reasons for those preferences? Why do some courts muzzle the children from the outset? Why do they refuse to weigh the credibility and evidentiary value of what the children who want to be heard have to say? In my opinion, it’s laziness disguised as “prudence” and “compassion”.

So, what does a child who wants and deserves a change of custody do? This may sound radical, but it’s really not: get your own attorney to help you. That’s the legal way to do it. And it’s easier said than done. You’ll be excoriated and mocked for trying. You may even be threatened. Be prepared for all this. There are all kinds of extralegal “self-help” methods that are easier and cheap or free by comparison, but that has never been an excuse to break the rules (unless the rules are inherently unfair or administered unfairly). I encourage children in your situation to work through the system even when it’s organized and administered to work against you.

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

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If One Parent Gets Primary Custody, Does This Mean That He/She Can Make All Decisions Regarding the Kids Without Any Input From the Other Parent?

There are two kinds of child custody, not just one. Those two different kinds are legal custody and physical custody.

Legal custody is the power of a parent to make decisions for a minor child regarding the child’s health and health care, education, moral and religious upbringing, and other matters pertaining to the child’s general welfare.

Physical custody of a child Is defined as that parent’s right to have the child reside physically with that parent.

You hear about the terms “sole custody” and “joint custody”. Parents can be awarded sole legal or joint legal custody of their children. They can be awarded sole physical or joint physical custody of their children. There is also what is known as a “split custody” award.

Another term that is often used for sole custody is primary custody. That is something of a misnomer.

Sole custody in the context of legal custody would mean that one parent and one parent alone has the power to make decisions for the child. Joint legal custody would mean that both parents share the right to make choices pertaining to the child. That stated, however, courts can and often do award parents the ostensible joint legal custody of their children, and yet give one parent the sole and exclusive right to decide in the event the parents cannot reach agreement. If you ask me, that can’t, in intellectual honesty, be joint legal custody, but I digress.

Sometimes Utah courts will divide legal custody between the parents such that one parent may have the right to make all decisions in a particular area. For example, the court could award the mother the right to make all healthcare decisions and award the father the right to make all education decisions for the children. That sort of arrangement would be known as a “split” legal custody award because neither parent has the sole and exclusive power to make all decisions regarding the child, the parents are not awarded joint legal custody such that they must make decisions jointly, but each parent has some soul and exclusive power to make some decisions, though not all decisions, pertaining to the child’s upbringing.

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

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How Do I Inform a School About Divorce and That Their Father Is Not Allowed to Pick Them Up?

Great question. There are many ways to do this wrong, so let’s start with those.

Just tell the teachers and principal and expect them to take your word for it; bring an uncertified copy of the applicable court order(s) or just the “relevant pages” of the order(s) and leave it at the front desk with Francine and tell her that you expect the school to comply. The right way to notify the school and the teachers:

  • make an appointment with the principal (or assistant principal, whoever is responsible for such matters) for the purpose of notifying the school and teachers;
  • bring a certified copy of the applicable court order(s) to the appointment and personally hand it to the principal/assistant principal;
  • then send a courteously worded (not a dictatorial) e-mail a PDF copy of the order(s) to the principal/assistant principal, so that you have dated and time-stamped proof of having e-mailed it. Include in the email:

o   a statement of the date and time you met with the principal/assistant principal and gave him/her a printed certified copy of the order(s);

o   a request in the email a) that a copy of the order(s) be added to the child’s file; b) that the child’s teachers be notified of the provision in the orders that your ex is not permitted to pick up the child from school;

o   a statement that you expect the school to ensure that it does what it reasonably and legally can to protect the children from being picked up the children from school;

o   a request that the principal/assistant principal verify receipt of the email and the attached PDF copy of the order(s);

o   an invitation to ask any clarifying questions; and

o   a statement that you appreciate the school’s and the teachers’ and other staff members’ understanding and cooperation.

 

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

 

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