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Tag: DCFS

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 129 Child Support Requirements

Today’s blog post treats another proposed law that is up for consideration during the 2024 Utah legislative session: House Bill 129 (HB0129 (utah.gov)), entitled “Child Support Requirements”.

This bill would, if passed into law, provide that a parent or other obligated individual is not responsible to pay child support for a child who is in the custody of the Division of Child and Family Services (DCFS).

The law that is currently in place provides for the possibility of a parent having to pay child support to DCFS or to reimburse DCFS for funds is has expended on the support of a child while the child is in DCFS custody. H.B. 129 would eliminate that possibility.

I wonder why the government would want to eliminate a way of getting its hands on our money, and in fairness, I don’t see anything wrong with a parent having to reimburse the state for funds DCFS expends on behalf of a child in the protective custody, temporary custody, or custody of the division, from the child’s parent or guardian. Do you?

The proposed legislation is cited below:

27     Be it enacted by the Legislature of the state of Utah:

28          Section 1. Section 78A-6-356 is amended to read:

29          78A-6-356. Child support obligation when custody of a child is vested in an

30     individual or institution.

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114          (12) [(a)] The child’s parent or another obligated individual is not responsible for child
115     support for the period of time that the child is removed from the child’s home by the Division
116     of Child and Family Services [if:].
117          [(i) the juvenile court finds that there were insufficient grounds for the removal of the
118     child; and]
119          [(ii) the child is returned to the home of the child’s parent or guardian based on the
120     finding described in Subsection (12)(a)(i).]

121          [(b) If the juvenile court finds insufficient grounds for the removal of the child under
122     Subsection (12)(a), but that the child is to remain in state custody, the juvenile court shall order
123     that the child’s parent or another obligated individual is responsible for child support beginning
124     on the day on which it became improper to return the child to the home of the child’s parent or
125     guardian.]

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138          80-2-301. Division responsibilities.
139          (1) The division is the child, youth, and family services authority of the state.
140          (2) The division shall:

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202          [(l) seek reimbursement of funds the division expends on behalf of a child in the
203     protective custody, temporary custody, or custody of the division, from the child’s parent or
204     guardian in accordance with an order for child support under Section 78A-6-356;]

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282          80-2-303. Division enforcement authority — Attorney general responsibilities.

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306          (3) (a) The attorney general’s office shall represent the division in an action[:]


307          [(a)] involving a minor who has not been adjudicated as abused or neglected, but who
308     is placed in the custody of the division by the juvenile court primarily on the basis of
309     delinquent behavior or a status offense[; or].
310          [(b) for reimbursement of funds from a parent or guardian under Subsection
311     80-2-301(2)(l).]

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

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

In re H.M. – 2023 UT App 122

THE UTAH COURT OF APPEALS

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

PERSONS UNDER EIGHTEEN YEARS OF AGE.

G.B.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20220774-CA

Filed October 13, 2023

First District Juvenile Court, Logan Department

The Honorable Kirk M. Morgan

No. 1187751

Julie J. Nelson and Alexandra Mareschal,

Attorneys for Appellant

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

Peterson, Attorneys for Appellee State of Utah

Jonathan P. Thomas, Attorney for Father

Martha Pierce, Guardian ad Litem

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

TENNEY, Judge:

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

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

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

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

BACKGROUND

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

Allegations of Abuse from 2015 Through 2020[1]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Protective Supervision Services Case

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

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

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

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

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

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

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

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

Mother’s Allegations Against Father Resume

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

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

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

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

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

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

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

Termination Proceedings

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

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

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

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

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

Trial

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

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

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

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

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

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

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

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

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

Termination Decision

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

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

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

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

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

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

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

ISSUES AND STANDARDS OF REVIEW

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

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

ANALYSIS

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

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

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

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

  1. Present-Tense Best Interest of the Children

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  1. Supervised Visitation

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

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

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

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

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

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

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

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

III. Mother’s Additional Arguments

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

  1. Adoption

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

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

  1. “Piling On”

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

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

  1. Mandatory Reporting

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

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

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

CONCLUSION

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

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


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

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

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

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

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

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In re M.S. – 2023 UT App 74

In re M.S. – 2023 UT App 74

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF M.S., A PERSON UNDER EIGHTEEN YEARS OF AGE.

R.S. AND J.S.,

Appellants,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20210657-CA

Filed July 6, 2023

Fourth District Juvenile Court, Spanish Fork Department

The Honorable F. Richards Smith

No. 1186449

Emily Adams, Sara Pfrommer, Freyja Johnson, and

Hannah Leavitt-Howell, Attorneys for Appellants

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

John M. Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE GREGORY K. ORME authored this Opinion, in which

JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY concurred.

ORME, Judge:

¶1 R.S. (Mother) and J.S. (Father) (collectively, Parents) appeal the juvenile court’s award of temporary custody of their infant son, M.S. (Child), to the Department of Child and Family Services (DCFS) following a shelter hearing and the court’s later finding that Child was neglected. We hold that Parents’ first argument is moot but conclude that their second argument satisfies the collateral consequences exception to mootness. And because the juvenile court did not make the necessary findings of fact and conduct the required analysis of whether Parents’ medical decisions for Child were “reasonable and informed,” we reverse the court’s neglect adjudication.

BACKGROUND[1]

¶2        Child was born on March 6, 2020, weighing 9.63 pounds. During her pregnancy, Mother had gestational diabetes—a condition which has been linked to increased birth weights. Therefore, while not off the charts, Child’s somewhat larger birth weight was likely caused by Mother’s gestational diabetes. Child was also born with elevated bilirubin levels and was prescribed photo light therapy for jaundice, which Parents administered for the next ten days. Hospital staff informed Mother that Child needed to be seen by a pediatrician three days following discharge from the hospital. Mother complied with the instruction and made an appointment to see a pediatrician (First Pediatrician) at a nearby clinic on March 9.

¶3        By the time of the appointment, Child had lost 12.5% of his birth weight, weighing in at 8.42 pounds. First Pediatrician found Child “to be in good health” overall, but he was concerned about Child’s elevated bilirubin levels and weight loss. Although weight loss is typically expected immediately after birth for infants whose mothers had gestational diabetes, First Pediatrician noted Child’s weight “to be more down than we usually would expect at that time.” First Pediatrician recommended a follow-up appointment “in the next day or two” to check on Child’s bilirubin levels and weight. No such follow-up appointment took place.

¶4        First Pediatrician saw Child again about two-and-a-half weeks later, on March 26. Father took Child to this appointment because Mother did not appreciate First Pediatrician’s “bedside manner” and she did not feel that he had been “very willing to listen to [her] concerns.” At this appointment, Child weighed in at 7.96 pounds, which according to First Pediatrician was a total weight loss of approximately 18% of Child’s original birth weight. First Pediatrician told Father that because Child had lost even more weight, he was concerned that Child was not getting sufficient nutrients from Mother’s breast milk—which was Child’s sole source of nourishment. First Pediatrician became even more concerned when he learned that Child had not had a bowel movement in three days. First Pediatrician explained that while exclusively breast-fed babies can sometimes “go a few days” without producing stool, this information combined with the weight loss caused him to further worry that Child’s nutritional needs were not being met.

¶5        First Pediatrician recommended that Mother pump so that they could quantify the amount of milk she was producing and that Child be given formula every few hours and be weighed each day so it could be determined whether “there was appropriate weight gain with a known specified amount of volume he was taking in.” Father expressed doubt whether this was something Mother would “go for” because they preferred to exclusively breast-feed Child, but he said he would discuss the recommendations with her. First Pediatrician wrote down his recommendations on a note for Father to give to Mother and said for her to contact him if she had any questions. He also tried to contact Mother both during and after the appointment but was unsuccessful.

¶6        First Pediatrician also emphasized the importance of a follow-up appointment the next day to check Child’s electrolyte levels and weight, which instruction he also included in his written note to Mother. At this point, First Pediatrician was “[v]ery concerned” about Child’s health and safety and noted in Child’s file, “If labs are not obtained and no visits happen, I will report to DCFS.”

¶7        Neither parent brought Child in for the labs and weight-check the following day. When First Pediatrician learned this, he called Mother to express his concerns. Mother stated that she was not aware of the missed appointment, that she was out of town, and that she would not be able to come in with Child that day. Mother informed First Pediatrician that she was feeding Child more often, but she was not giving him formula. She repeatedly thanked First Pediatrician for his recommendations and told him she would “take them under consideration.” At the end of the conversation, they both agreed that Mother should find another pediatrician for Child. Mother subsequently scheduled an appointment with another pediatrician for April 2 but did not relay this information to First Pediatrician. She also increased the frequency of Child’s breast-feedings to every two hours, and she immediately filled and began administering a medication for diaper rash First Pediatrician had prescribed during the March 26 appointment.

¶8        Following the phone conversation, First Pediatrician contacted DCFS and reported Parents’ apparent medical neglect and physical neglect of Child and Child’s failure to thrive. First Pediatrician later testified that even if he had known that Child had an appointment with another pediatrician set for April 2, his concerns would not have been eased. He explained that he had ordered labs on Child’s electrolyte levels because his “biggest concern” was that if Child became dehydrated, he would develop “elevated sodium levels in the blood . . . that could potentially cause a lot of health problems” such as lethargy, seizures, and neurological damage. First Pediatrician stated that “the problem with the elevated sodium is more of an urgent or emergent problem that could have been developing, and so it couldn’t have waited” until the April 2 appointment.

¶9        On March 30, a DCFS caseworker (Caseworker) followed up with First Pediatrician, who expressed his concern that Child was at risk of dehydration, which could lead to further health complications. Following the conversation, Caseworker had a difficult time locating and communicating with Parents. When Caseworker called one of the phone numbers provided to her, a man Caseworker believed to be Father answered. He was skeptical that Caseworker worked for DCFS, and the conversation proved unfruitful. After visiting multiple addresses on file for the family to no avail, Caseworker contacted law enforcement officers, who were able to locate Mother, Father, and Child in a motel by “pinging” their cellphone.

¶10      Caseworker arrived at the motel around 1:00 a.m. on April 1. Law enforcement was already at the motel and officers informed Caseworker that paramedics had already examined Child and had determined that Child was alert, breathing normally, had a strong heartbeat, and exhibited no obvious signs of dehydration. Because the examination revealed no concerns, the paramedics did not consider Child in need of further medical attention and returned him to Mother. The paramedics had left by the time Caseworker arrived, so she did not have an opportunity to speak with them.

¶11 The officers warned Caseworker that Father was very upset about her being there and that Father even instructed an officer to stand between him and Caseworker. During the hour-long conversation that ensued, Father refused to allow Caseworker to see Child and instead insisted that Child was “fine.” At one point, Father told Caseworker that he would allow her to see Child if she returned at 8:00 a.m. Caseworker was reluctant to do so because she was aware of a prior case in which Father had fled across state lines with two of his other children, and she worried that Child “would be gone” by 8:00 a.m. if she left. She also found it odd that she had located the family at a motel that was approximately 20 miles from their home.

¶12      Caseworker then requested a warrant for removal of Child. A judge approved the warrant, and Child was taken into DCFS custody in the wee hours of the morning. Caseworker then took Child to an emergency room. There, Child appeared to have gained a little weight, weighing in at 8.05 pounds, although Caseworker suggested the slight weight gain could have also been attributed to a wet diaper. According to the pediatrician (Second Pediatrician) who examined Child later that afternoon when he was brought in by the foster parents with whom Child had been placed, Child “was within the 11th percentile for weight, but his weight to length ratio was in the 3rd percentile,” which was troubling, especially given Child’s higher birth weight. Second Pediatrician stated that although Child was “generally well appearing,” he nonetheless “did appear dehydrated” and underweight. Child’s lab results revealed “abnormalities that were consistent with dehydration and possibly poor feeding,” including abnormal bilirubin levels and elevated liver enzymes (transaminases). Child’s initial lab results also “show[ed] evidence of hemolysis,” which is when the body destroys red blood cells quicker than it can produce them, so the hospital had the labs redone. The second round of labs revealed “normal potassium, but the transaminases still remained mildly elevated.” The lab report also included the following note: “I spoke with [the] pediatric hospitalist, and confirmed that these current findings are not worrisome in this current setting, and they recommended that the patient follow-up with [a] pediatrician in about a week for recheck.”

¶13      Second Pediatrician noted that Child needed to be closely monitored for kernicterus, which he explained “is when bilirubin levels get to a high enough point in the blood that they deposit into the brain, and can cause some brain damage, to use layman’s terms.” Second Pediatrician instructed Child’s foster parents to feed Child formula every “three to four hours” and to return in a couple of days.

¶14      At the follow-up appointment two days later, on April 3, Child had gained approximately 13 ounces,[2] weighing in at 8.88 pounds. At a second follow-up appointment three days later, on April 6, Child weighed 9.44 pounds, meaning he had gained approximately 9 more ounces. A week later, on April 13, Child weighed 10.08 pounds. Child continued to show weight gain in other subsequent exams. Based on this, Second Pediatrician testified that it was his “clinical impression” that Child had not been “receiving appropriate nutrition, and upon receiving appropriate nutrition [Child] returned to an expected weight.” He further explained that “inadequate nutrition can have devastating effects on someone so young” because “dehydration can lead to renal failure, and poor growth can affect development in all areas, physical and mental development.”

¶15 On April 1, the State petitioned for legal custody and guardianship of Child, alleging, in relevant part, neglect by Parents “in that [Child] lacks proper parental care by reason of the fault or habits of the parents.” See Utah Code Ann. § 80-1-102(58)(a)(ii) (LexisNexis Supp. 2022).[3] The petition alleged, among other things, the following:

  • Child “had lost 18% body weight since birth and was at significant risk for seizures and brain damage,” but Parents refused to follow medical advice and supplement Mother’s breast milk with formula.
  • Parents had provided First Pediatrician’s office with an incorrect address, but with assistance from law enforcement, DCFS eventually located them and Child in a motel approximately 20 miles from their home.
  • Paramedics examined Child and determined that he “was not in distress,” but because the paramedics left prior to Caseworker’s arrival at the motel, DCFS “was not able to get additional information regarding the failure to thrive medical concerns, particularly a weight measurement.”
  • Father refused to allow Caseworker to see Child, and he was “hostile” toward her, even going so far as instructing a police officer to stand between them “so that [he] did not harm” her.
  • Father had several aliases and had “a history of parental kidnapping.”[4]
  • At the emergency room, it was noted that Child had gained a little weight but also that he had a significant diaper rash.

¶16 The juvenile court held a shelter hearing on April 3, which at Parents’ request was then continued until April 8. Following the continued hearing, the court “found that, based upon the medical records relating to [Child], removal was appropriate.” Specifically, the court found that “[t]he medical records indicate that [Child] was underweight,” that Child’s “lab values continued to show that transaminases still remained mildly elevated, and that the bilirubin is also mildly elevated.” The court was also “concerned about the medical evidence of malnutrition presented by the State.”

¶17      A few weeks later, on April 30, Parents filed an Emergency Motion to Return Custody and Dismiss Petition, in which they argued, among other things, that it was common for infants born from mothers with gestational diabetes to lose more than 10% of their birth weight in their first week. They also emphasized the benefits of breast-feeding and asserted that Child had repeatedly been examined following removal and had been found to be healthy. They also submitted a letter from their latest pediatrician (Third Pediatrician), who had originally been scheduled to see Child on April 2. Although Third Pediatrician had not examined Child, he reviewed Child’s medical records and concluded that “while the concerns of [First Pediatrician] were valid, he failed to convey this concern properly to the parents and their wishes were not taken into consideration” and that the April 1 lab results did not reveal “signs of nutritional deficiency or compromise.”

¶18 Some three weeks later, Parents filed an Order to Show Cause and Motion for Order seeking sanctions against DCFS for violating their right to seek a second medical opinion prior to removal. At a subsequent hearing, the State explained that it never opposed a second medical opinion but that Parents had never properly requested one under the Utah Rules of Juvenile Procedure or the Utah Rules of Civil Procedure. Parents withdrew their motion for sanctions and Order to Show Cause and moved for Third Pediatrician to examine Child. At a subsequent hearing, Mother reported that Third Pediatrician had examined Child and concluded “there are no safety concerns in this case.” And in September 2020, the juvenile court placed Child in a trial home placement with Parents.

¶19 Following a multi-day trial in January 2021, the juvenile court found the State had proved the allegations in its petition by clear and convincing evidence and adjudicated Child neglected on the ground that Child lacked “proper parental care by reason of the fault or habits of” Parents. The court did not find that Parents abused Child. The court found First Pediatrician’s and Second Pediatrician’s testimonies to be persuasive and stated “that the cursory physical examination by paramedics could not have identified” the “very real and very serious” medical issues that were later identified at the hospital.

¶20 The court next determined that Child’s removal from Parents’ home following the shelter hearing “was appropriate and necessary and in [Child’s] best interest.” But the court also found that the circumstances giving rise to Child’s removal, i.e., Child’s failure to thrive, were “largely resolved” and that Child’s trial home placement with Parents that had begun some six months earlier had “not revealed any child safety concerns.” Accordingly, the court terminated its jurisdiction in the case and returned custody of Child to Parents.

¶21      Parents appeal. Obviously, they do not appeal the decision that Child be returned to them. But they challenge prior rulings of the court.

ISSUES AND STANDARDS OF REVIEW

¶22 Parents raise two issues on appeal. First, they argue that “the juvenile court erred as a matter of law by awarding custody of Child to the State at the shelter hearing without giving [them] a reasonable time to obtain a second medical opinion.” But because this issue is moot, as explained in Part I.A. below, we lack judicial power to address it. See Transportation All. Bank v. International Confections Co., 2017 UT 55, ¶ 14, 423 P.3d 1171 (“The mootness doctrine is not a simple matter of judicial convenience or an ascetic act of discretion. It is a constitutional principle limiting our exercise of judicial power under article VIII of the Utah Constitution.”) (quotation simplified); Utah Transit Auth. v. Local 382 of Amalgamated Transit Union, 2012 UT 75, ¶ 12, 289 P.3d 582 (“[B]ecause it is moot, we lack the power to address the underlying merits or issue what would amount to an advisory opinion.”).

¶23 Second, Parents argue that the “court improperly adjudicated Child as neglected.” Specifically, they assert that (a) the court “did not consider the full statutory definition of neglect,” (b) the court’s findings “did not support its ultimate decision that Child was neglected,” and (c) “the neglect adjudication was against the clear weight of the evidence.” “We apply differing standards of review to findings of fact, conclusions of law, and determinations of mixed questions of law and fact.” In re E.R., 2021 UT 36, ¶ 14, 496 P.3d 58. “We afford the [juvenile court] no deference on questions of law, reviewing issues de novo, and the most deference on questions of fact, reviewing only for clear error.” In re A.B., 2022 UT 39, ¶ 23, 523 P.3d 168. The level of deference afforded to mixed questions of law and fact, however, depends on whether they are more “law-like” or “fact-like,” with the former being subject to de novo review while the latter are subject to deferential review. See In re E.R., 2021 UT 36, ¶ 18. A juvenile court’s neglect adjudication falls within the former category because, “[o]nce the facts have been established, the juvenile court is limited to determining whether the statutory criteria for neglect have been met,” which “is primarily a law-like endeavor.” In re A.B., 2022 UT 39, ¶ 28. Accordingly, we review the court’s ultimate adjudication of neglect for correctness.

ANALYSIS

  1. Mootness

¶24 Before we proceed to address the merits of Parents’ arguments, we must first address the contention of the guardian ad litem (the GAL) that this appeal is moot. See Ramos v. Cobblestone Centre, 2020 UT 55, ¶ 22, 472 P.3d 910 (stating that “mootness is a threshold determination” that appellate courts must make before reaching the merits of an appeal). “The defining feature of a moot controversy is the lack of capacity for the court to order a remedy that will have a meaningful impact on the practical positions of the parties.” Utah Transit Auth. v. Local 382 of Amalgamated Transit Union, 2012 UT 75, ¶ 24, 289 P.3d 582. “When a case is moot in this sense, the parties’ interest in its resolution is purely academic.” Id. See Transportation All. Bank v. International Confections Co., 2017 UT 55, ¶ 15, 423 P.3d 1171 (“A case may be mooted on appeal if the relief requested is rendered impossible or of no legal effect.”) (quotation simplified).

¶25 The GAL argues that both issues Parents raise on appeal are moot. We agree that Parents’ argument related to Child’s removal following the shelter hearing is moot and does not satisfy a mootness exception, and we therefore do not reach the merits of that argument. But because we conclude Parents’ arguments related to the juvenile court’s adjudication that Child was neglected satisfies the collateral consequences exception to mootness, we address the merits of those arguments in Part II.

  1. Child’s Removal

¶26      The GAL argues that Parents’ challenge to Child’s removal from their care following the shelter hearing is moot because “they now enjoy full custody of Child.” Although Parents concede that “appellate review would not affect the rights of the parties because the shelter hearing ruling was an interim ruling that is no longer operative,” thereby rendering the issue technically moot, they nonetheless assert that “the issue qualifies under the exception to the mootness doctrine.”

¶27 Under the mootness exception, “we will decide a moot issue when a litigant can demonstrate that the issue will (1) affect the public interest, (2) be likely to recur, and (3) because of the brief time that any one litigant is affected, be likely to evade review.” Widdison v. State, 2021 UT 12, ¶ 14, 489 P.3d 158 (quotation simplified). Even assuming, without deciding, that the first and third elements are met, Parents have not carried their burden of persuasion on the second element. Accordingly, this issue does not satisfy the mootness exception.

¶28      Under the second element, “[a] party must convince us that the issue will arise again.” Id. ¶ 17. “Under settled case law, a mere physical or theoretical possibility of recurrence is insufficient” to satisfy this element. Id. (quotation simplified). Rather, “there must be a reasonable expectation or a demonstrated probability that the same controversy will recur.” Utah Transit Auth., 2012 UT 75, ¶ 36 (quotation simplified).

¶29 Parents’ argument on this element is limited to the assertion that at shelter hearings, “whenever the basis for removal is an allegation of medical neglect, the issue will again arise as to whether the juvenile court can remove the child without permitting the parents reasonable time to seek a second medical opinion.” But Parents’ argument is more intricate than the mere question of whether they were entitled to seek a second medical opinion prior to Child’s removal from their care. Indeed, Utah law is clear that parents facing removal of their child for medical neglect are generally entitled to a reasonable time to obtain such an opinion. See Utah Code Ann. § 80-3-304(1) (LexisNexis Supp. 2022) (“In cases of alleged medical neglect where [DCFS] seeks protective custody, temporary custody, or custody of the child based on the report or testimony of a physician, a parent or guardian shall have a reasonable amount of time, as determined by the juvenile court, to obtain a second medical opinion from another physician of the parent’s or guardian’s choosing who has expertise in the applicable field.”). See also id. § 80-3-304(3) (“If the second medical opinion results in a different diagnosis or treatment recommendation from that of the opinion of the physician [DCFS] used, the juvenile court shall give deference to the second medical opinion as long as that opinion is reasonable and informed and is consistent with treatment that is regularly prescribed by medical experts in the applicable field.”). What Parents’ argument on this issue boils down to, however, is whether, under the facts of this case, Child was facing “an imminent risk of death or a deteriorating condition of [his] health,” see id. § 80-3-304(2),[5] or “an immediate threat of death or serious and irreparable harm,” see id. § 80-3-304(4),[6] thereby depriving Parents of what would otherwise be their statutory right to seek a second medical opinion prior to Child’s removal, see id. § 80-3-304(1)–(2).

¶30      Because Parents’ argument on the “likely to recur” element of the mootness exception does not directly address the intricacies of the issue they raise on appeal, they have not carried their burden of persuasion on this element. See Allen v. Friel, 2008 UT 56, ¶ 9, 194 P.3d 903. Accordingly, this issue is not exempted from the mootness doctrine, and we lack judicial power to address it further.

  1. Neglect Adjudication

¶31 The GAL next asserts that because the juvenile court terminated its jurisdiction and returned Child to Parents’ custody, Child no longer has the status of “neglected” and Parents’ challenge to the juvenile court’s neglect adjudication is therefore moot. Parents and the State oppose this suggestion of mootness. Specifically, although the State agrees that “this appeal may be technically moot because the child has been returned to the Parents and court jurisdiction terminated,” it concedes that the issue satisfies the collateral consequences exception to mootness. This argument is likewise adopted by Parents in their reply brief.[7]

¶32 “Generally, once mootness has been demonstrated, the party seeking to survive dismissal bears the burden of demonstrating that collateral legal consequences will flow from the challenged issue.” In re J.S., 2017 UT App 5, ¶ 11, 391 P.3d 358 (quotation simplified). Our approach to applying the collateral consequences exception differs depending on whether the collateral consequences are presumed or not. “When collateral legal consequences are presumed, the case isn’t moot unless it can be shown that no adverse collateral consequences will result.” State v. Legg, 2018 UT 12, ¶ 14, 417 P.3d 592 (quotation simplified). Conversely, “[w]hen collateral legal consequences aren’t presumed, a case is moot unless the party opposing mootness can establish actual collateral legal consequences.” Id. We conclude that Parents’ argument satisfies the former of these two approaches.

¶33 While “we presume collateral legal consequences follow criminal convictions,” id. ¶ 17, the presumption may arise in other contexts when the collateral consequences are “sufficient to mandate the same undeniable conclusion as criminal convictions, i.e., the existence of a collateral legal consequence is virtually inescapable,”[8] id. ¶ 18. See id. (“We will only presume collateral legal consequences when the challenged action carries extensive collateral consequences imposed by law.”); id. ¶ 24 (“Presumed collateral legal consequences aren’t inherently limited to the realm of criminal convictions.”). This presumption “does not come lightly.” Id. ¶ 18. Indeed, the presumption in the criminal conviction context exists only because “the law mandates numerous legal consequences follow a criminal conviction to such an extent that the existence of at least one collateral legal consequence for an individual defendant is effectively inevitable.”[9] Id. ¶ 17. Thus, in the non-conviction context, the presumption likewise requires a demonstration of “numerous consequences imposed by law that would command the conclusion that some collateral legal consequence is inevitable for every” similarly situated party. Id. ¶ 32. Such consequences must be “statutorily mandated and cannot be avoided by conforming with the law.” Id. ¶ 31. See id. ¶¶ 29–30.

¶34      Parents and the State both argue that the juvenile court’s “finding of neglect remains significant and important notwithstanding the fact that the juvenile court has now terminated jurisdiction over this family.” Specifically, they assert that “a finding of neglect does provide a statutory basis for termination of parental rights were Parents to again find themselves before the juvenile court.” See Utah Code Ann. § 80-4-301(1)(b) (LexisNexis Supp. 2022) (listing “that the parent has neglected or abused the child” as a legal ground for which a parent’s rights may be terminated); In re J.M., 2020 UT App 52, ¶¶ 28–30 & n.3, 463 P.3d 66 (stating that a prior adjudication of abuse or neglect, regardless of whether the “parent has improved herself since,” satisfies the statutory ground for parental termination, leaving the juvenile court to decide only whether termination is in the best interest of the child). The State additionally asserts that the neglect adjudication “precludes Parents from challenging their substantiated finding of neglect on the DCFS Management Information System child abuse database,” see Utah Code Ann. § 80-2-707(7)(a) (LexisNexis Supp. 2022) (“[A]n alleged perpetrator may not make a request . . . to challenge a supported finding if a court of competent jurisdiction entered a finding, in a proceeding in which the alleged perpetrator was a party, that the alleged perpetrator is substantially responsible for the abuse, neglect, or dependency that is the subject of the supported finding.”), which will have “implications for any future investigations of child abuse/neglect regarding the Parents, as well as affect[] things such as the Parents’ ability to serve as foster parents in the future.” We agree and conclude that this satisfies the presumed collateral consequences approach.

¶35 In State v. Legg, 2018 UT 12, 417 P.3d 592, our Supreme Court held that revocation of probation did not warrant presumed collateral consequences (or amount to actual collateral consequences, for that matter). See id. ¶¶ 25, 32, 38. The appellant in that case argued that probation revocation could be used as a “prior history in future contact with the legal system,” could be used “as an aggravating factor in the sentencing recommendation matrix,” could be a basis for the State to refuse “plea offers or offers of probation,” and would render him ineligible “for a reduction of the degree of his or her first offense under Utah Code section 76-3-402.” Id. ¶ 28 (quotation simplified). The Court rejected these arguments, holding that the first three arguments simply amounted to the allegation that “certain non-statutory consequences may occur,” and that “these types of discretionary decisions are not governed by the mere presence or absence of a recorded violation of probation.” Id. ¶ 29 (quotation simplified). Additionally, the Court stated that “the first three potential collateral legal consequences are contingent upon [the appellant] again violating state law,” and that he is “able—and indeed required by law—to prevent such a possibility from occurring.” Id. ¶ 30 (quotation simplified). And concerning the fourth argument regarding “the potential of a 402 reduction,” the Court stated that because it was discretionary, the reduction was “at most, highly speculative and nothing more than a mere possibility.” Id. ¶ 31.

¶36 Our Supreme Court also distinguished its prior opinion in In re Giles, 657 P.2d 285 (Utah 1982), in which it “concluded that an appeal of a civil commitment was not moot because there were ‘collateral consequences that may be imposed upon appellant that might arise were he to face future confrontations with the legal system,’” Legg, 2018 UT 12, ¶ 29 n.4 (quoting In re Giles, 657 P.2d at 287) (quotation otherwise simplified). The Court stated that individuals subject to civil commitments “face similar deprivations of liberty as criminals” and that “unlike the use of previous commitment in future commitment hearings, a defendant is able to completely avoid the use of a probation revocation in a future sentencing decision by not committing a future violation of law.”[10] Id. (quotation simplified). Adjudications of neglect by a juvenile court are on much the same footing.

¶37      As an initial matter, “[a] parent’s right to raise his or her child is one of the most precious rights any person enjoys, and is among the fundamental rights clearly protected by our federal and state constitutions.” In re B.T.B., 2018 UT App 157, ¶ 9, 436 P.3d 206, aff’d, 2020 UT 60, 472 P.3d 827. See Utah Code Ann. § 80-4-104(1) (LexisNexis Supp. 2022) (“Under both the United States Constitution and the constitution of this state, a parent possesses a fundamental liberty interest in the care, custody, and management of the parent’s child. For this reason, the termination of family ties by the state may only be done for compelling reasons.”). Accordingly, although taking a different form than that in the criminal-conviction context, parents nonetheless face “deprivations of liberty” as a result of neglect adjudications, which include collateral consequences in possible “future confrontations with the legal system.” See Legg, 2018 UT 12, ¶ 29 n.4 (quotation simplified).

¶38      Unlike the arguments made by the appellant in Legg, the consequences that Parents would be subject to as a result of the neglect adjudication are imposed by law and are not discretionary. Under Utah law, the prior adjudication of neglect is a sufficient ground for termination of parental rights. See Utah Code Ann. § 80-4-301(1)(b); In re J.M., 2020 UT App 52, ¶¶ 28–30. Although it would satisfy only one of the two elements required for termination of parental rights,[11] see Utah Code Ann. § 80-4-301, that first element plays a critical role in the protection of parental rights, see In re B.T.B., 2018 UT App 157, ¶ 14 (“Termination of parental rights solely on the basis of the child’s best interest and without any finding of parental unfitness, abandonment, or substantial neglect, violates the parent’s constitutional liberty rights.”) (quotation simplified). Additionally, a finding of neglect carries various consequences because the adjudication remains on the DCFS Management Information System child abuse database. See Utah Code Ann. § 80-2-707(7)(a). As the State explains, this will at the very least preclude Parents from acting as foster parents and will affect any possible future investigations conducted by DCFS.

¶39 Finally, unlike in Legg where the appellant’s arguments were contingent on the appellant again violating the law, see 2018 UT 12, ¶ 30, such is not the case here. Under the parental rights termination test, based on the prior adjudication of neglect, a parent’s rights could conceivably be terminated without the parent subsequently satisfying a statutory ground for termination, so long as termination is in the child’s best interest. See In re J.M., 2020 UT App 52, ¶¶ 28–30 & n.3.

¶40 For these reasons, we hold that Parents’ challenge to the juvenile court’s neglect adjudication satisfies the collateral consequences exception to the mootness doctrine. We accordingly proceed to address the merits of their argument, even though the issue is technically moot.

  1. Merits of the Neglect Adjudication

¶41 In challenging the juvenile court’s adjudication of Child as neglected, Parents argue that the court committed a threshold legal error when it “failed to conduct the requisite legal analysis into whether Parents’ conduct involved a reasonable and informed health care decision.” We agree with Parents in this regard.

¶42 The juvenile court adjudicated Child neglected on the ground that Child lacked “proper parental care by reason of the fault or habits of” Parents. See Utah Code Ann. § 80-1-102(58)(a)(ii) (LexisNexis Supp. 2022). But the Utah Code specifically exempts from its definition of neglect “a health care decision made for a child by the child’s parent or guardian, unless the state or other party to a proceeding shows, by clear and convincing evidence, that the health care decision is not reasonable and informed.” Id. § 80-1-102(58)(b)(ii).[12]

¶43 In determining whether a parent acted reasonably regarding a child’s healthcare, “the pivotal question is what action by the parent was proper under the circumstances.” In re N.K.C., 1999 UT App 345, ¶ 15, 995 P.2d 1.[13] This standard “is flexible and depends on the actual circumstances involved,” id. ¶ 17, “includes a full range of conduct on the part of parents and guardians,” and “does not require extraordinary caution or exceptional skill,” id. ¶ 19 (quotation simplified). See id. ¶ 18 (“[P]erfection is not required[.]”). Rather, “similar to a reasonableness standard in torts,” “reasonable care is what an ordinary, prudent parent uses in similar situations.” Id. ¶ 19 (quotation simplified). Additionally, although this “standard may accommodate the cautious and the hesitant, . . . it cannot accommodate inaction in the face of an obvious cause for immediate concern.” Id. ¶ 21. See id. ¶ 16 (“[W]aiting even an hour when a child is suffering from an obvious and serious injury is ordinarily not reasonable and could support a determination of medical neglect.”).

¶44 In addition to being reasonable, the parent’s health care decisions must be “informed.” Utah Code Ann. § 80-1-102(58)(b) (ii). “Informed” is defined as “having information” or “based on possession of information.” Informed, Merriam-Webster Dictionary, https://www.merriam-webster.com /dictionary/infor med [https://perma.cc/S8NV-S8X7]See InformedDictionary.comhttps://www.dictionary.com/browse/informed [https://perma.cc/ TN64-KHLB] (defining “informed” as “having or [being] prepared with information or knowledge; apprised”). Thus, parents must take the time to apprise themselves of the necessary information to allow them to make a considered health care decision for their child. Indeed, in cases of alleged medical neglect, absent “an immediate threat of death or serious and irreparable harm” to the child, if a parent obtains a second medical opinion that “results in a different diagnosis or treatment recommendation from that of the opinion of the physician [that DCFS] used,” that opinion is entitled to deference “as long as that opinion is reasonable and informed and is consistent with treatment that is regularly prescribed by medical experts in the applicable field.” Utah Code Ann. § 80-3-304(3)–(4) (LexisNexis Supp. 2022).

¶45 Here, at the adjudication hearing, the State argued that Parents’ actions “were not reasonable and informed under the circumstance” because they failed to appear for follow-up appointments to check Child’s weight and conduct additional lab tests. Parents countered, asserting that they “have a strong conviction against formula” and that based on the American Academy of Pediatrics’ recommendation, they believed that exclusively breast-feeding “is the healthiest way to provide for your child.” Indeed, the materials First Pediatrician gave Parents following the March 26, 2020 appointment state, “Breast milk is the best food for your baby.” Parents further asserted that they did follow medical advice by “treating the bilirubin levels with the light therapy,” treating Child’s diaper rash by administering prescribed medication, and treating Child’s weight loss by increasing the frequency of feedings and by making an appointment to see Third Pediatrician on April 2. Parents pointed to the fact that increased feedings (albeit with formula) were what Second Pediatrician instructed Child’s foster parents to do following his examination of Child. Accordingly, they asserted that although they “disagreed with” First Pediatrician concerning the use of formula, they “did not disregard” his medical recommendation to increase the frequency of Child’s feedings.

¶46 In finding Child was neglected by Parents, the juvenile court did not discuss whether the State had proven, by clear and convincing evidence, that Parents’ medical decisions for Child were not “reasonable and informed.” Instead, the court found that the State had proven the following facts by clear and convincing evidence:

  • By March 30, 2020, Child “had lost 18% body weight since birth and was at significant risk for seizures and brain damage.”
  • Paramedics who examined Child at the motel concluded that Child “was not in distress,” but this “cursory physical examination . . . could not have identified” the “very real and very serious” medical issues that were later identified at the hospital.
  • First Pediatrician “was very concerned about dehydration of” Child.
  • Parents “were advised by [First Pediatrician] of the very serious medical danger to [Child] and advised [Parents] to supplement the baby’s intake with formula.”
  • Parents “refused to follow the medical advice and bring the baby in for weight checks, lab draws, and treatment recommendations regarding [Mother’s] breastmilk supply, or follow the other medical advice given to” them.
  • When taken to the emergency room by DCFS, Child’s “weight had increased from the last time he was seen by” First Pediatrician.

The court also made findings regarding the difficulty Caseworker experienced in locating Child, Father’s aggressive and belligerent attitude toward Caseworker, Father’s use of aliases and “history of parental interference,” and Father’s “very strong, passionate feelings about Government interference or involvement in the lives of private citizens.”[14]

¶47 But despite the GAL’s assertions to the contrary, these facts, without more, are insufficient to establish that Parents’ medical decisions for Child were unreasonable, i.e., that Parents did not “exhibit appropriate concern for the infant’s needs given the observable evidence,” In re N.K.C., 1999 UT App 345, ¶ 20 (quotation simplified), and whether their decisions were informed. Specifically, the court’s findings do not go to the reasonableness of Parents’ decision to increase feeding frequency without supplementing with formula in response to Child’s more-than-expected weight loss, whether Parents’ decision to forgo feeding Child formula under the circumstances was informed, or the reasonableness of Parents’ decision to wait until April 2 to have Child re-examined following the March 26 appointment with First Pediatrician in lieu of the follow-up appointment scheduled for the following day.

¶48      More importantly, even if the juvenile court did make the relevant findings, it did not undertake the necessary analysis of whether Parents’ medical decisions were reasonable, which is an ultimate determination that is left to the juvenile court—not an appellate court. Reasonableness determinations involve the application of law to facts, some of which, depending on the context, are entitled to deferential review and others of which are subject to de novo review. See Sawyer v. Department of Workforce Services, 2015 UT 33, ¶ 20, 345 P.3d 1253 (“[S]ome determinations of reasonableness should be reviewed de novo and others should not.”). The reasonable parent standard is “similar to a reasonableness standard in torts,” In re N.K.C., 1999 UT App 345, ¶ 19, which “is determined by the fact-finder and subject only to deferential review,” Sawyer, 2015 UT 33, ¶ 21. This is because “the particular facts and circumstances of the [parent’s] conduct are likely to be so complex and varying that no rule adequately addressing the relevance of all these facts can be spelled out.” In re adoption of Baby B., 2012 UT 35, ¶ 43, 308 P.3d 382 (quotation simplified). Additionally, a juvenile court’s determination under the reasonable parent standard “would often be affected by [the court’s] observation of a competing witness’s appearance and demeanor on matters that cannot be adequately reflected in the record available to the appellate courts.” Id. (quotation simplified). Accordingly, absent the court’s analysis of whether Parents’ medical decisions satisfied the reasonable parent standard, the juvenile court’s adjudication of neglect in this case is unsustainable, and this court cannot undertake the analysis in the juvenile court’s stead even if it had made the requisite factual findings.

¶49 The State argues that Parents’ conduct was objectively unreasonable and the fact that Child did not suffer permanent harm is not determinative. We certainly agree with the latter portion of this argument, that is, “[a] parent should not benefit from the happenstance that her child’s condition did not worsen” as a result of her unreasonable medical decision. In re N.K.C., 1999 UT App 345, ¶ 14. But for a healthcare decision to be objectively unreasonable, as was the case in In re N.K.C.,[15] the court needed to find that Child’s condition presented “an obvious cause for immediate concern.” Id. ¶ 21 (emphasis added). Although the juvenile court did find that Child’s examination at the hospital revealed “very real and very serious” medical issues, the court did not make a finding regarding whether they were issues that should have been obvious to Parents. To the contrary, the court acknowledged that the examination completed by responding paramedics earlier that night at the motel revealed that Child “was not in distress.” See id. ¶ 20 (stating that a parent is not expected “to make a diagnosis, only to exhibit appropriate concern for the infant’s needs given the observable evidence”) (emphasis added) (quotation otherwise simplified). Thus, Parents’ conduct at the time could not have been objectively unreasonable.

¶50 In sum, because the underlying conduct that should have been the focus of the juvenile court’s neglect adjudication was Parents’ medical decisions regarding Child, the court could not find neglect unless the State had met its burden of proving that those decisions were not “reasonable and informed.” See Utah Code Ann. § 80-1-102(58)(b)(ii) (LexisNexis Supp. 2022). Because the court did not conduct the requisite analysis, its ruling contained legal errors, and we therefore reverse.

CONCLUSION

¶51 Because Parents’ argument regarding Child’s removal from their care following the shelter hearing is moot and not subject to a recognized exception to the mootness doctrine, we lack judicial power to address it. But we have power to address Parents’ challenge to the juvenile court’s neglect adjudication because that argument, while technically moot, satisfies the collateral consequences exception to mootness. And because the juvenile court did not make findings or conduct an analysis related to whether Parents’ medical decisions for Child were “reasonable and informed,” the court’s ruling contained critical legal errors, and we therefore reverse the court’s neglect adjudication.

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

 

[1] “We recite the facts in the light most favorable to the juvenile court findings.” In re J.M., 2020 UT App 52, n.1, 463 P.3d 66 (quotation simplified).

[2] Second Pediatrician testified that Child had gained around 6 ounces by the April 3 appointment, but medical records show that Child’s weight increased from 3.65 kg to 4.03 kg in the two-day interval, for a total weight gain of 0.38 kg, which is 13.40 ounces.

[3] At the time, the relevant provision appeared in section 78A-6-105 of the Utah Code. The provision has since, without any substantial change, been moved to section 80-1-102. Compare Utah Code Ann. § 78A-6-105(36)(a)(ii) (LexisNexis Supp. 2018), with id. § 80-1-102(58)(a)(ii) (Supp. 2022). We cite the current version of the annotated code for convenience.

[4] Specifically, the petition alleged that he took his then two- and four-year-old children out of state during his weekend parent-time and disappeared for eight months. Father and the children were finally located in Pennsylvania where they were observed outside in the winter cold, without coats. The petition further alleged that Father first refused to give responding police officers his name and eventually gave an alias. Once his true identity was discovered, Father was arrested, and the children were returned to their mother in Utah.

[5] The subsection, in its entirety, states,

Unless there is an imminent risk of death or a deteriorating condition of the child’s health, the child shall remain in the custody of the parent or guardian while the parent or guardian obtains a second medical opinion.

Utah Code Ann. § 80-3-304(2) (LexisNexis Supp. 2022).

[6] The subsection, in its entirety, states,

Subsections (1) through (3) do not apply to emergency treatment or care when the child faces an immediate threat of death or serious and irreparable harm and when there is insufficient time to safely allow the parent or guardian to provide alternative necessary care and treatment of the parent’s or guardian’s choosing.

Id. § 80-3-304(4).

[7] But unlike the State, Parents do not concede that the current appeal is technically moot. Rather, they argue that the appeal is not moot because the juvenile court’s neglect adjudication affects their parental rights. They support their assertion by adopting the State’s collateral consequences argument. That is, Parents do not assert that our resolution of this issue in their favor would have any current or practicable effect on their parental rights. Instead, they base their argument on a potential future event, asserting that their rights are affected because, as discussed in greater detail later in this opinion, “a neglect adjudication remains a statutory basis for terminating Parents’ rights going forward.” See In re J.M., 2020 UT App 52, ¶¶ 28–30, 463 P.3d 66 (“Once neglect has occurred, a juvenile court is entirely justified in making a finding that a parent ‘has neglected’ a child, even if that parent has improved herself since.”). But we are unpersuaded that even if Parents’ argument proves meritorious, any remedy we could order would “have a meaningful impact on the practical positions of the parties.” Utah Transit Auth. v. Local 382 of Amalgamated Transit Union, 2012 UT 75, ¶ 24, 289 P.3d 582. See State v. Legg, 2018 UT 12, ¶ 26, 417 P.3d 592 (“The question of mootness doesn’t turn on which collateral legal consequences the defendant will suffer, but on whether the requested judicial relief can affect the rights of the litigants.”) (quotation simplified).

[8] An example of a non-criminal context in which the collateral consequences presumption applies is that of civil commitments because “patients of mental hospitals face similar deprivations of liberty as criminals.” State v. Legg, 2018 UT 12, ¶ 29 n.4, 417 P.3d 592 (quotation simplified). See In re Giles, 657 P.2d 285, 286–87 (Utah 1982).

[9]Our Supreme Court has “recognized several collateral legal consequences that may result from a criminal conviction, such as the use of the conviction to impeach the petitioner’s character or as a factor in determining a sentence in a future trial, as well as the petitioner’s inability to vote, engage in certain businesses, or serve on a jury.” State v. Legg2018 UT 12, ¶ 22, 417 P.3d 592 (quotation simplified).

[10] Our Supreme Court also noted that, at the time, “being labeled ‘mentally incompetent’ carried collateral legal consequences comparable to criminal convictions,” such as restrictions on voting rights and the ability to serve on a jury, obtain a driver license, or obtain a firearm license. See Legg, 2018 UT 12, ¶ 29 n.4.

[11] Parental rights may be terminated only if the following two elements are met: (1) “a trial court must find that one or more of the statutory grounds for termination are present” and (2) “a trial court must find that termination of the parent’s rights is in the best interests of the child.” In re B.T.B., 2018 UT App 157, ¶ 13, 436 P.3d 206 (quotation simplified), aff’d, 2020 UT 60, 472 P.3d 827.

[12] The Utah Code further exempts from its definition of neglect a parent’s exercise of his or her right to seek a second medical opinion when DCFS seeks to remove the child from the parent’s custody on allegations of medical neglect. See Utah Code Ann. § 80-1-102(58)(b)(iii) (LexisNexis Supp. 2022). See also id. § 80-3-304 (stating that, with certain limitations, parents have a right to seek a second medical opinion in cases of alleged medical neglect). Parents also argue that the juvenile court erred in failing to consider this provision as part of its adjudication ruling. Because we reverse on the ground that the court did not consider whether Parents’ medical decisions were “reasonable and informed,” we do not reach this question.

[13] In re N.K.C., 1999 UT App 345, 995 P.2d 1, addressed the reasonable parent standard under the medical neglect statute then in effect, which required this court to determine whether a parent provided a child with “proper or necessary” medical care. See id. ¶ 8. The statute has since been rephrased and renumbered, without any substantive change that is relevant to the current appeal. Compare Utah Code Ann. § 80-1-102(58)(a)(iii) (LexisNexis Supp. 2022) (defining “neglect” as “failure or refusal of a parent, guardian, or custodian to provide proper or necessary subsistence or medical care, or any other care necessary for the child’s health, safety, morals, or well-being”), with id. § 78-3a-103(1)(r)(i)(C) (Supp. 1999) (defining “neglected child” as “a minor . . . whose parent, guardian, or custodian fails or refuses to provide proper or necessary subsistence, education, or medical care, including surgery or psychiatric services when required, or any other care necessary for health, safety, morals, or well-being”). Although the juvenile court in the case before us did not adjudicate Child neglected under the medical neglect statute, it nevertheless was barred from finding neglect if the underlying conduct constituted a “reasonable and informed” healthcare decision. See id. § 80-1-102(58)(b)(ii) (Supp. 2022) (“‘Neglect’ does not include . . . a health care decision made for a child by the child’s parent or guardian, unless the state or other party to a proceeding shows, by clear and convincing evidence, that the health care decision is not reasonable and informed[.]”). Additionally, we see no reason why the reasonable parent standard that is applied to a determination of whether a parent provided “proper or necessary” medical care under the medical neglect statute should differ from the standard applied in determining whether a parent made a “reasonable” healthcare decision under the statute at issue in this case.

[14] The GAL makes much of Father’s contentious behavior, his history of parental interference, and the difficulty Caseworker experienced in locating Parents and Child. There is no question that these behaviors were not constructive and were not helpful to Parents’ cause. But these findings of fact do not go to the reasonableness of Parents’ medical decisions and are therefore largely irrelevant to the determination of whether their medical decisions were reasonable and informed.

[15] In In re N.K.C., 1999 UT App 345, 995 P.2d 1, the father “vigorously shook” his one-month-old child. Id. ¶ 2. The child’s mother, who had been absent during the abuse, later “observed that the child was limp and lethargic” and that his “pupils were fixed.” Id. Instead of seeking immediate medical attention, the mother put the child to bed. Id. Later that night, after the child’s condition had not improved, the mother contacted the child’s pediatrician, who directed her to immediately take the child to the emergency room. Id. ¶ 3. The mother arrived with the child at the emergency room almost five hours after she initially discovered the child’s serious condition. Id. The juvenile court determined that the mother “neglected the child by failing to obtain timely medical care.” Id. ¶ 6 (quotation simplified). We affirmed, stating that under the reasonable-parent standard, the mother’s conduct, in light of the severe symptoms the child was exhibiting, was “well outside that which can reasonably be expected of a parent in that situation,” and therefore “the mother’s failure to summon immediate medical attention amounted to a failure to exercise the minimum degree of care expected of a reasonably prudent parent.” Id. ¶ 21.

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

THE UTAH COURT OF APPEALS

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

C.S.,

Appellant,

V.

STATE OF UTAH,

Appellee.

Opinion

No. 20220264-CA

Filed March 23, 2023

Sixth District Juvenile Court, Manti Department

The Honorable Brody L. Keisel

No. 1097003

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

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

Martha Pierce, Guardian ad Litem

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

HARRIS, Judge:

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

BACKGROUND

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ISSUES AND STANDARDS OF REVIEW

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

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

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

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

ANALYSIS

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

I. Evidentiary Standard

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

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

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

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

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

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

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

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

II. Reasonable Efforts

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

A

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

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

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

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

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

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

B

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

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

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

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

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

CONCLUSION

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

¶46 Affirmed.

 

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

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

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

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

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

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State In Interest of B.W. – 2022 UT App 131

State In Interest of B.W. – 2022 UT App 131

Court of Appeals of Utah.

STATE of Utah, IN the INTEREST OF B.W., J.W., and N.W., persons under eighteen years of age.

H.W., Appellant,

v.

State of Utah, Appellee.

No. 20210886-CA

Filed November 17, 2022

Eighth District Juvenile Court, Duchesne Department, The Honorable Jeffry Ross, No. 1182864

Attorneys and Law Firms

Emily Adams and Sara Pfrommer, Park City, Attorneys for Appellant

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

Martha Pierce, Salt Lake City, Guardian ad Litem

Judge Ryan D. Tenney authored this Opinion, in which Judges Gregory K. Orme and Ryan M. Harris concurred.

Opinion

TENNEY, Judge:

¶1 In December 2019, H.W. (Mother) gave birth to twins, J.W. and N.W. (collectively, the Twins). At the hospital, Mother tested positive for methamphetamine, as did the Twins’ umbilical cords. The Division of Child and Family Services (DCFS) soon began providing protective supervision services to Mother, the Twins, and B.W., Mother’s one-year-old son. After Mother repeatedly failed drug tests, the juvenile court placed B.W., J.W., and N.W. (collectively, the Children) in DCFS custody.

¶2 Mother continued to struggle with illegal drug use, and the court terminated reunification services in May 2021. Mother was then treated in an inpatient treatment facility from May through August 2021. After leaving this treatment facility, Mother again relapsed, using methamphetamine several times in the ensuing weeks. At the close of a termination hearing in November 2021, the court terminated Mother’s parental rights in the Children.

¶3 Mother now appeals the termination decision, arguing that there was not clear and convincing evidence (1) that any ground for termination existed or (2) to support the court’s best interest determination. As set forth below, however, there was enough evidence on both fronts. We accordingly affirm the challenged rulings.

BACKGROUND

DCFS Petitions for Protective Supervision

¶4 In December 2019, when B.W. was one year old, Mother gave birth to the Twins. At the time of their birth, Mother tested positive for “methamphetamine and amphetamines.” The Twins’ umbilical cords also tested positive for methamphetamine and amphetamines. Mother claimed that “she didn’t know why or how she could have tested positive unless it was her e-cigarette.”1

¶5 Based on the positive drug tests, DCFS filed a verified petition for protective supervision services a few weeks after the Twins’ births. In that petition, DCFS alleged that the Children were abused and neglected based on the Twins’ fetal exposure to illegal drugs.

¶6 Mother responded pursuant to rule 34(e) of the Utah Rules of Juvenile Procedure, meaning that she neither admitted nor denied the allegations but accepted that the allegations would “be deemed true.” See Utah R. Juv. P. 34(e). Based on Mother’s rule 34(e) response, the juvenile court found that the Twins had been exposed to illegal drugs and that all the Children were abused and neglected by Mother. The juvenile court accordingly ordered DCFS “to provide protective supervision services to the family” and to develop a child and family plan.

 

¶7 With Mother’s input, DCFS then created a child and family plan. The plan listed several responsibilities for Mother, such as maintaining a residence appropriate for the Children, completing a mental health and substance abuse assessment, submitting to random drug testing, and making daily calls to the Treatment Assessment Screening Center (TASC) system.

¶8 The court held a disposition hearing less than one month after it adjudicated the Children as abused and neglected. At that hearing, DCFS reported that Mother had not been calling into the TASC system or completing drug tests. The guardian ad litem moved for the Children to be taken into DCFS custody, but the court declined that request and instead again ordered Mother to comply with the plan. The court also scheduled a thirty-day review hearing.

DCFS Petitions for Custody

¶9 Over the next month, “Mother failed to call into TASC 7 times, missed 3 drug tests, and tested positive for methamphetamines on two occasions.” As a result, on April 16, 2020, DCFS filed an expedited verified petition for custody.

¶10 About a week later, the juvenile court held a pretrial hearing on the custody petition. Mother entered a rule 34(e) response, and the court again determined that Mother had abused and neglected the Children. The court also found that DCFS had made “[r]easonable efforts” to “prevent the removal of” the Children but that those “efforts were unsuccessful.” The court thus ordered the Children to be removed from Mother and placed in the temporary custody of DCFS.

¶11 The court held a disposition hearing the following month. At that hearing, the court ordered Mother to comply with a newly created child and family plan, which contained “essentially the same provisions as the previous one,” including the requirements noted above. The court also ordered DCFS to provide reunification services, acknowledging that reunification was “the primary goal.”

Mother Requests Placement with Grandparents

¶12 At the pretrial and disposition hearings (and, as will be discussed, at subsequent hearings in the case as well), Mother requested that the Children be placed with her mother (Grandmother) and stepfather (Step-Grandfather) (collectively, Grandparents). After Mother made this request, however, the State notified the court that Step-Grandfather was unable to pass a DCFS background check. The record lacks some of the specifics regarding this background check, but it does show that DCFS informed the court that Step-Grandfather was unable to pass it because there were five cases against him in the Licensing Information System (LIS). The LIS is a “sub-part of the Management Information System,” a database that DCFS is statutorily required to maintain.2 Utah Code Ann. § 62A-4a-1006(1) (LexisNexis Supp. 2021). For an individual to be included in the LIS, DCFS must make “a supported finding” that the individual committed “a severe type of child abuse or neglect.” Id. § 62A-4a-1005(1); see also id. § 62A-4a-1006(1)(b).

¶13 DCFS gave information to Step-Grandfather about how to appeal the LIS cases. After he did, three of the cases were administratively overturned.3 But the remaining two were upheld because they “were of such significance that they [could not] be overturned.”

¶14 Even so, Mother still requested that the Children be placed with Grandparents. Over the course of several hearings, Grandmother informed the court that Step-Grandfather was only home one day every week, that the LIS cases in question were from “[a]bout 20 years ago,” and that Step-Grandfather was “never charged with sexual abuse.” Nonetheless, the court repeatedly decided against placing the Children with Grandparents.4

Juvenile Court Terminates Reunification Services

¶15 For the remainder of 2020, Mother struggled to comply with the new child and family plan. For example, although Mother successfully completed a mental health and substance abuse assessment, she “struggled for the first several months to fully engage in the therapy that was recommended for [her], with attendance being very sporadic and inconsistent.” On December 1, 2020, Mother was scheduled to check into an inpatient treatment facility. But when the DCFS caseworker went to pick her up, “Mother did not answer the door and missed her appointment to check in.” Mother belatedly went to the treatment facility the following week, but on arrival, she tested positive for methamphetamine. When the facility offered to accept Mother despite the positive drug test, she “refused to enter.” After learning of these events, the court ordered Mother to be jailed if she was not in an inpatient treatment facility by December 23, 2020. Mother checked into a facility on December 23, but she left two days later.

¶16 In February 2021, Mother gave birth to another child, A.W. Shortly after A.W.’s birth, DCFS removed him from Mother’s care via warrant. He was returned to Mother’s custody once his umbilical cord test came back showing no presence of illegal drugs. But the court ordered Mother to “strictly comply with the court’s drug testing orders going forward, or A.W. would likely be removed from [her] custody again.” In April 2021, the court removed A.W. from Mother’s custody based on Mother’s “ongoing drug testing issues.”5

¶17 The court held a permanency hearing for the Children in May 2021. At that hearing, the court found that DCFS had made “[r]easonable efforts” to provide reunification services and that Mother “partially complied with the requirements of the service plan.” But the court stated that it could not find that Mother had “the strength to stay away from drugs with the [Children] in the home.” In support of this, the court detailed the many times that Mother had tested positive for illegal drugs or had failed to test at all. The court further determined that it could not extend reunification services for the Children, so it changed their final permanency plan to adoption.6

Mother Enters an Inpatient Treatment Facility

¶18 From May 3, 2021, through August 31, 2021, Mother received inpatient drug treatment. Although she tested positive for methamphetamine when she arrived, she reportedly did very well in the program and remained drug-free throughout her stay. Before leaving treatment, Mother told a caseworker that she no longer wished to live with the alleged father because he was also struggling to stay clean. But when Mother left the facility, “she almost immediately” started living with the alleged father again and “very quickly relapsed on methamphetamine.” Mother later testified that in the two months after she left the facility, she had “3 relapses and 5 methamphetamine uses.”

Juvenile Court Terminates Mother’s Parental Rights

¶19 On June 15, 2021, the State filed a verified petition for termination of Mother’s parental rights. The court held a termination hearing on November 1, 2021, and the parties stipulated to present the evidence by proffer and have the witnesses available for cross-examination. In support of its petition, the State proffered the testimony of two DCFS caseworkers, and those caseworkers also appeared in court for live cross-examination. The State also offered, and the court received, the caseworkers’ case notes. The Children’s current foster mother (Foster Mother) testified in person.

¶20 The first DCFS caseworker (Caseworker 1) had worked with the family from the Twins’ births until December 2020. The State proffered that she would have testified about DCFS’s unsuccessful efforts to place the Children with relatives, Mother’s supervised visits with the Children, and Mother’s efforts to comply with the plan, including drug testing and participation in therapy. Caseworker 1 also would have discussed how she arranged to take Mother to an inpatient treatment facility and how Mother did not answer the door when Caseworker 1 arrived.

¶21 On cross-examination, Mother’s counsel asked how Mother interacted with the Children during the supervised visits. Caseworker 1 responded that Mother was “very engaging” with the Children and that the “visits went very well.” Caseworker 1 also agreed that Mother clearly loved the Children. When Counsel asked if Mother was a “good and appropriate parent[ ]” “but for the drug use,” Caseworker 1 replied, “Yes, except for the drug use.” Counsel also asked about her observations of Mother’s home. Caseworker 1 responded that “[m]ost of the time, [she] was just in the living room” and that she “did not see any drugs or paraphernalia.”7 Caseworker 1 also agreed that before the Children were removed from Mother’s custody, she never observed them to be without proper food, clothing, supervision, affection, or medical care.

¶22 Mother’s counsel also questioned Caseworker 1 about why the Children weren’t placed with Grandparents. Caseworker 1 responded that the Children were not placed with Grandparents because “[t]here were some things on [Step-Grandfather’s] background check that [DCFS] just could not look at them being a placement.” When asked if she remembered what was troubling about Step-Grandfather’s background check, Caseworker 1 answered, “I don’t, no. Usually I look at those, and once it’s not acceptable for our agency, it – you know, that’s pretty much it for me.”

¶23 The guardian ad litem (the GAL) assigned to the Children also cross-examined Caseworker 1. When the GAL asked if Mother took responsibility for her drug use, Caseworker 1 responded that although Mother “was always very apologetic,” she didn’t “follow through” or “do what we asked.” Caseworker 1 said that Mother had “a tendency to blame other people for [her] problems.” And when asked about Mother’s drug testing, Caseworker 1 said that it “went in waves,” where Mother would “do really well for a while” but then “wouldn’t do well for a while.”

¶24 The State also proffered testimony from a second DCFS caseworker (Caseworker 2). Caseworker 2 had worked with the family from December 2020 through the termination hearing in November 2021. She would have testified that she attempted to take Mother to the inpatient treatment facility in December 2020, that Mother tested positive for methamphetamine when they arrived at the facility, and that, for “unclear” reasons, Mother ultimately refused to stay at the facility. Caseworker 2 also would have testified that later in December 2020, Mother entered an inpatient program but left after two days. And she would have testified about attempts to place the Children with relatives, the supervised visits, and Mother’s efforts to comply with the plan. She also would have explained how Mother’s youngest child, A.W., was placed in DCFS custody due to Mother’s failed drug tests. Caseworker 2 would have further testified that Mother entered an inpatient treatment facility in May 2021, that Mother had plans to move in with Grandmother after she left the program because the alleged father is one of her “triggers,” but that after leaving the program, Mother almost immediately moved back in with the alleged father.8

¶25 During her cross-examination, Caseworker 2 acknowledged that Mother “interact[s] very well” with the Children and described her behavior during the supervised visits as “appropriate.” Caseworker 2 also acknowledged that in the times she had been inside Mother’s home, she had never “seen any sign of drug use or paraphernalia.” But when the GAL asked if the Children could “be safely returned to the home today,” Caseworker 2 replied, “No.” And when asked if Mother was “a good and appropriate parent” “but for” her drug use, Caseworker 2 responded, “I don’t like the term good parent, bad parent. I think it’s too subjective. But I think in answer to that, I would say she is an appropriate parent. I think she’s a parent with issues, but she tries her best.”

¶26 Foster Mother testified next. Foster Mother explained that she and her husband started fostering N.W. in April 2020 and J.W. and B.W. in May 2020. Foster Mother described the Children as her “whole world” and testified that she and her husband were willing to adopt the Children.

¶27 Foster Mother then spoke about each individual child. She said that B.W., for example, is “enrolled in early intervention” with PrimeTime 4 Kids and “receives speech and language therapy.”9 And she said that J.W. also does PrimeTime 4 Kids, but that he doesn’t have any “physical limitations or medical needs.” Foster Mother also explained that N.W. has a rare chromosomal syndrome. When N.W. first came into their home, he was on “supplemental oxygen 24 hours a day” and had a G-tube to help with feeding, which required daily cleaning. She further testified that N.W.’s chromosomal syndrome has caused developmental delays and that he will “remain delayed.” On cross-examination, she discussed how she and her husband “did a lot of research” into the syndrome by watching YouTube videos and “lectures given by doctors.”

¶28 After the State rested, Mother proffered the testimony of three witnesses: a clinical mental health counselor (Counselor) who worked with Mother at the inpatient treatment facility, Grandmother, and Mother. As had occurred with the State’s witnesses, the three witnesses’ testimonies were offered via proffer, and Grandmother and Mother were then subject to live cross-examination.10

 

¶29 Counselor would have testified that Mother entered the inpatient treatment facility in May 2021 and successfully completed the program in August 2021. She would have stated that “[o]ver the last four to five weeks of her treatment, [Mother] gave this program her all, attending all groups, individual sessions, case management appointments, et cetera.” Counselor also would have explained that Mother gave “each assignment careful thought and consideration” and had “agreed to continue to work on learning parenting skills and how to improve her ability to manage her emotions in a healthy way.” And Counselor would have testified that Mother “created a strong after care plan that included support from 12-step meetings, her religious community, and her ongoing therapists.” After proffering Counselor’s testimony, Mother’s counsel clarified that Counselor and Mother had not been in contact since Mother left the facility.

¶30 Mother proffered Grandmother’s testimony next. Grandmother would have testified that Mother and B.W. lived with her until B.W. was six months old. Grandmother would have described Mother as a “phenomenal mother” who dedicated her time to teaching and loving the Children. She would have described how Mother took the Children to the doctor frequently. She would have also testified that “she’s absolutely never known [Mother] to be high around her kids” and that she “didn’t know much about the drug use when [Mother and the alleged father] were living with [Grandparents] because they were never high around the kids.” Grandmother would have further explained that Mother had been working hard toward recovery and had been implementing what she learned in therapy.

¶31 Grandmother would have also testified about her attempts to have the Children placed with her and Step-Grandfather. She would have explained that they were denied placement because of the LIS cases against Step-Grandfather and “that they went through the appeal process,” “but they were denied again.” She would have testified that she and Step-Grandfather were “willing to work any safety plan requested by DCFS, including line-of-sight supervision any time” Step-Grandfather is around the Children. Grandmother would have also stated that Step-Grandfather was “willing to do a sexual behavioral risk assessment” and that “they would follow through with any treatment.”

¶32 At this point, the court asked for clarification about when Grandparents had requested custody, and Mother’s counsel provided a summary of when Grandparents had done so.11 Mother’s counsel further explained that DCFS denied placement with Grandparents because DCFS claimed there was “a substantiated sexual abuse allegation on the licensing database” that couldn’t be overturned. She said that DCFS “would not provide any more details than that as to what their concerns were.” When the court asked if Grandparents’ placement request was denied each time, Mother’s counsel stated that the requests were “denied,” or, rather, “continued more often than denied outright.”

¶33 Mother then proffered her testimony. Mother would have testified that “she loves her children very much and has worked very hard to be successful in this case.” She would have testified that she promptly addressed all safety concerns that DCFS caseworkers had about her home, like getting a fire extinguisher. She would have also explained how she always took the Children to their doctors’ appointments and how they were healthy and clean when they went into the State’s custody. With respect to her drug use, she would have described her improvement since entering a treatment facility and how she’s worked on implementing the skills she learned. Mother would have also acknowledged, however, that she was “not yet in active recovery.” But Mother would have testified that “despite her substance abuse disorder, … she always kept the drugs out of her home” and that she never used “around the [Children] and never at the house.”

¶34 During cross-examination, Mother acknowledged that she and the Twins’ umbilical cords tested positive for methamphetamine when they were born. She also acknowledged that she tested positive for drugs while pregnant with A.W. And Mother confirmed that since leaving the inpatient treatment facility, she had three relapses and used methamphetamine five times. She further testified that she created a safety plan while in the treatment facility and that she did not follow that plan. And she testified that since leaving the treatment facility, she had not been in contact with her “after care” contacts.

 

¶35 After closing arguments from all parties, the court ruled from the bench that grounds for termination existed and that it was in the Children’s best interest to terminate both parents’ parental rights. The court later issued written findings of fact and conclusions of law detailing its findings. There, the court found that Mother “struggled with drug testing and maintaining [her] sobriety throughout the entirety of the case.” The court then made extensive findings about Mother’s drug use, including a finding that “in 2020, Mother had 36 missed call-ins, 19 missed tests, 5 tests that were positive for methamphetamine[,] including on dates when she would have been pregnant with A.W., 1 test that was positive for alcohol, 1 test that was positive for THC[,] and 1 diluted test.” The court further found that in January 2021, “Mother had 4 missed call-ins and 1 missed test”; that in February 2021, Mother had “perfect testing compliance”; that in March 2021, “Mother missed 1 test”; and that in April 2021, “Mother failed to test on 4 occasions, failed to call in on 2 occasions, and tested positive for methamphetamine” on one occasion. Relatedly, the court found that Mother “quickly relapsed” after leaving the inpatient treatment facility and that, by her own testimony, “she had 3 relapses and 5 methamphetamine uses in the short two months’ time from leaving treatment to the date of trial.”

¶36 The court also concluded that “Mother’s attendance at therapy up until April of 2021 can be described as inconsistent at best.” In particular, the court noted DCFS’s attempts to help Mother get into an inpatient treatment facility and Mother’s initial resistance to inpatient treatment.

¶37 The court also made findings about Mother’s efforts and progress. It found that “by all accounts,” Mother did well at the inpatient treatment facility and “gave the program her all, attended all groups, individual sessions and case management meetings and that she excelled in her program and appeared to grow in her confidence and sobriety.” The court also found that “Mother completed a parenting class, consistently participated in family team meetings, kept in regular contact with DCFS, allowed DCFS to conduct home visits, obtained proper housing, attended visits with the [Children], and completed some adult education classes.” And the court concluded “that Mother appears to have good parental instincts and was always appropriate and attentive during visits with the [Children].” The court also stated that it was “very clear” that Mother “love[s] the [Children] very much.”

¶38 The court then addressed whether DCFS made “reasonable efforts” to provide reunification services. See Utah Code Ann. § 80-4-301(3)(a) (LexisNexis Supp. 2022).12 The court concluded that DCFS did make reasonable efforts, such as “holding regular family team meetings, completing regular home visits,” helping Mother get into a treatment facility, and providing transportation. The court also noted that Mother never argued that DCFS failed to make reasonable efforts. And the court pointed out that because Mother was provided reunification services for A.W., she was “afforded an opportunity to take full advantage of these ‘additional’ services and ‘additional’ time to remedy the safety concerns that brought the [Children]” into DCFS custody.

¶39 Having made these findings, the court then engaged in the two-part inquiry for termination of parental rights, determining (1) whether a statutory ground for termination exists and, (2) if so, whether termination is in the best interest of the child. See In re B.T.B., 2020 UT 60, ¶ 62, 472 P.3d 827.

¶40 On the question of whether grounds for termination existed, the court determined that four separate grounds existed:

• First, the court found that Mother’s use of illegal drugs “constituted abuse and neglect of the [Children].” See Utah Code Ann. § 80-4-301(1)(b) (listing “that the parent has abused or neglected the child” as a ground for termination). In support of this, the court relied on Mother’s drug use while pregnant and her “ongoing continued use of methamphetamines.”

• Second, the court found that Mother was an unfit parent because her “habitual use of methamphetamines and inability to maintain sobriety for any significant amount of time during the pendency of this matter render[s] [her] unable to properly care for the [Children].” See id. § 80-4-301(1)(c) (listing “that the parent is unfit or incompetent” as a ground for termination).

• Third, the court found that the Children “are being cared for in an out-of-home placement under the supervision of the juvenile court,” Mother is “either unwilling or unable to remedy the circumstances that caused the [Children] to be in an out-of-home placement notwithstanding reasonable and appropriate reunification efforts by DCFS, and there is a substantial likelihood that Mother … will not be capable of exercising proper and effective parental care in the near future.” See id. § 80-4-301(1)(d)(i) (listing a ground for termination applicable when children are “being cared for in an out-of-home placement under the supervision of the juvenile court”). Relevant here, the court found that despite nearly two years of reunification services, Mother was “still in active methamphetamine addiction and use, which is the entire reason the [Children] were placed in DCFS custody to begin with.” The court further found that “more than a year after subjecting the [Twins] to fetal exposure of methamphetamines, Mother did the same thing to yet another child, all while participating in reunification services with DCFS.”

• Fourth, the court found that Mother “demonstrated a failure of parental adjustment.” See id. § 80-4-301(1)(e) (listing “failure of parental adjustment” as a ground for termination”); id. § 80-4-102(2) (defining “failure of parental adjustment”). Here, the court again relied on its conclusion that “with respect to Mother’s … methamphetamine addiction, very little if any progress has been made.”

¶41 Because it found that grounds for termination existed, the court then moved to the question of whether termination of Mother’s parental rights was in the Children’s best interest. As part of this analysis, the court considered whether “efforts to place the child with kin who have, or are willing to come forward to care for the child, were given due weight.” (Quoting Utah Code Ann. § 80-4-104(12)(b)(ii) (LexisNexis Supp. 2022).) The court concluded that efforts to place the Children with kin were given due weight. With respect to Grandparents, the court stated that Step-Grandfather “did not pass the DCFS background check and, as a result, [Grandparents’] request for placement was denied.” It further explained that the “denial was administratively appealed” and that Grandparents lost the appeal. And it finally noted that when Mother asked the court to “waive the failed background check” and place the Children with Grandparents anyway, the court “denied this request after considering all of the information and argument from the parties.” The court accordingly concluded that “due weight” had been given to efforts to place the Children with Grandparents but that the placement “did not occur due to [Step-Grandfather] failing his background check.”13

¶42 The court then considered whether termination was “strictly necessary” to promote the Children’s best interest. See Utah Code Ann. § 80-4-104(12)(b) (LexisNexis Supp. 2022); see also In re B.T.B., 2020 UT 60, ¶ 66, 472 P.3d 827. On this, the court made several findings about the Children’s relationship with their foster parents, including:

• The Twins “have been with the foster parents nearly their entire lives and [B.W.] for nearly half of his young life.”

• The Children “have thrived in the care of the foster parents. [B.W.] has made great strides in his speech through regularly working with a speech therapist. [N.W.] has an extremely rare condition … which results in many developmental delays and requires extra precautions and care. The foster parents have spent many hours researching the condition and how they can best care for [N.W.]”

• The Children “have formed a strong familial bond with the foster parents and look to the foster parents as their natural parents.”

• “The foster parents have treated the [Children] as their own and have tailored their lives so that one of their primary objectives is to provide for the needs and safety of the [Children].”

• “The [Children’s] sibling, A.W.[,] is also in the care of the foster parents.”

¶43 Based on these findings, the court concluded that “it is clearly in the [Children’s] best interests to have parental rights terminated so that they may be adopted.” The court further explained, “Given the young age of the [Children] and the amount of time they have been in the home of the foster parents in relation to their young ages, it is strictly necessary to terminate parental rights so the [Children] may be adopted and receive the permanency they deserve.” The court thus terminated Mother’s parental rights in the Children. Mother now appeals.

ISSUES AND STANDARDS OF REVIEW

¶44 Mother first challenges the juvenile court’s determination that grounds for termination existed. She next challenges the juvenile court’s best interest determination, arguing that the court erred when it “failed to require clear and convincing evidence to preclude a kinship placement with Grandmother” and “concluded that it was strictly necessary to terminate Mother’s parental rights.”

¶45 “Whether a parent’s rights should be terminated presents a mixed question of law and fact.” In re E.R., 2021 UT 36, ¶ 7, 496 P.3d 58 (quotation simplified). We will thus overturn a juvenile court’s termination decision only if “it is against the clear weight of the evidence or leaves [us] with a firm and definite conviction that a mistake has been made.” Id. (quotation simplified). Put differently, we will overturn a termination decision only if the juvenile court “either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” Id. (quotation simplified); see also id. ¶ 12.

ANALYSIS

¶46 In the Termination of Parental Rights Act (the Act), our legislature set forth two findings that a juvenile court must make before terminating parental rights. See Utah Code Ann. § 80-4-103(2)(c) (LexisNexis Supp. 2022); see also In re B.T.B., 2020 UT 60, ¶ 46, 472 P.3d 827. First, the juvenile court must find that at least one ground for termination exists under Utah Code section 80-4-301. See In re B.T.B., 2020 UT 60, ¶ 46, 472 P.3d 827; In re J.M., 2020 UT App 52, ¶ 30, 463 P.3d 66. Second, the court must find that termination is in the best interest of the child. See In re B.T.B., 2020 UT 60, ¶ 46, 472 P.3d 827. Both findings must be supported by clear and convincing evidence. See Utah Code Ann. § 80-4-103(2)(a); In re B.T.B., 2020 UT 60, ¶ 48, 472 P.3d 827.

¶47 In this case, the court terminated Mother’s parental rights in the Children after finding that four grounds for termination existed and that termination was in the Children’s best interest. Mother challenges both parts of that ruling.

I. Grounds for Termination

¶48 Utah Code section 80-4-301 lists several possible grounds for terminating parental rights. The juvenile court found that four of them existed with respect to Mother: “that the parent has neglected or abused the child,” Utah Code Ann. § 80-4-301(1)(b) (LexisNexis Supp. 2022); “that the parent is unfit or incompetent,” id. § 80-4-301(1)(c); “that the child is being cared for in an out-of-home placement” and additional requirements have been met, id. § 80-4-301(1)(d)(i); and “failure of parental adjustment,” id. § 80-4-301(1)(e).

¶49 Mother challenges the court’s finding of each ground, contending that there wasn’t clear and convincing evidence to support any of them. But we conclude that the evidence was sufficient with respect to at least one of the grounds—failure of parental adjustment—and we accordingly reject Mother’s argument. See In re J.M., 2020 UT App 52, ¶ 30, 463 P.3d 66 (explaining “that the presence of a single statutory ground is sufficient to fulfill the first element of the termination test”).14

¶50 As defined by the Act, failure of parental adjustment “means that a parent or parents are unable or unwilling within a reasonable time to substantially correct the circumstances, conduct, or conditions that led to placement of their child outside of their home, notwithstanding reasonable and appropriate efforts made by the division to return the child to the home.” Utah Code Ann. § 80-4-102(2) (LexisNexis Supp. 2022). Here, the juvenile court found that Mother demonstrated a failure of parental adjustment because, although she made “significant progress with a number of requirements on the child and family plan, [she was] still in active methamphetamine addiction and use, which is the entire reason the [Children] were placed in DCFS custody to begin with.” The court particularly focused on Mother’s testimony that she used methamphetamine while pregnant with A.W. and that “in the two months leading up to trial, she used methamphetamine on five occasions.”

 

¶51 After reviewing the record, we cannot conclude that the court’s finding that Mother demonstrated a failure of parental adjustment went “against the clear weight of the evidence.” In re E.R., 2021 UT 36, ¶ 7, 496 P.3d 58 (quotation simplified). As explained, DCFS filed a petition for protective supervision services a few weeks after the Twins’ birth, after the Twins’ umbilical cords tested positive for methamphetamine and amphetamine. The juvenile court granted the petition, adjudicated the Children as abused and neglected, and ordered Mother to submit to drug testing as part of a child and family plan. Two months later, the court removed the Children from Mother and placed them in DCFS custody because Mother missed drug tests and tested positive for methamphetamine.

¶52 Again, this ground looks to whether the parent was able to “substantially correct” the “conduct” or “conditions that led to placement of [the] child outside of their home.” Utah Code Ann. § 80-4-102(2). So here, since the Children had been removed from the home because of Mother’s positive and missed drug tests, the question before the court was whether Mother had “substantially corrected” that behavior between their removal in April 2020 and the termination hearing in November 2021.

¶53 The record supports the court’s conclusion that Mother hadn’t. Indeed, the record shows that up through the termination hearing, Mother continued to struggle with drug testing and drug use. As the court found, “in 2020, Mother had 36 missed call-ins, 19 missed tests, 5 tests that were positive for methamphetamine[,] including on dates when she would have been pregnant with A.W., 1 test that was positive for alcohol, 1 test that was positive for THC[,] and 1 diluted test.” From January to March 2021, Mother had 4 missed call-ins and 2 missed tests. “In April 2021, Mother failed to test on 4 occasions, failed to call in on two occasions, and tested positive for methamphetamine” once. From May to August 2021, Mother was in the inpatient treatment facility, where she reportedly did very well. But upon leaving the facility, Mother “almost immediately returned” to live with the alleged father and “very quickly relapsed on methamphetamine.” Indeed, in “the short two months’ time from leaving treatment to the date of trial,” Mother “had 3 relapses and 5 methamphetamine uses.” Mother has not challenged these findings, and they support a finding that Mother was “unable or unwilling within a reasonable time to substantially correct the circumstances, conduct, or conditions that led to placement of [the Children] outside of [her] home.” Id.

¶54 Mother nevertheless argues that the court improperly took a “ ‘zero-tolerance’ approach” and failed “to in any way take into account Mother’s efforts and progress.” But the court didn’t take a zero-tolerance approach. Rather, the court concluded that Mother was unable or unwilling to substantially correct her drug use after making findings about Mother’s repeated use of methamphetamine, including specific findings about her use while pregnant and again in the few months between her inpatient treatment and the termination hearing. The court also didn’t fail to “take into account Mother’s efforts and progress.” In its order, the court acknowledged that Mother had “made significant progress with a number of requirements on the child and family plan” and that Mother had “successfully completed” the inpatient treatment program. But the court then found that Mother “very quickly relapsed on methamphetamine” after leaving the facility and that Mother was still “in active methamphetamine addiction and use.” In short, the court recognized Mother’s progress, but it nevertheless found that even with this progress, her ongoing methamphetamine use still demonstrated that she was either unwilling or unable to substantially correct her drug use.

¶55 Mother also argues that she didn’t “willfully refuse to deal with her drug issue, but rather really tried to stay clean.” But a court can find failure of parental adjustment based on a parent’s unwillingness or inability to “substantially correct the circumstances, conduct, or conditions that led to placement of [the] child outside of their home.” Id. In this sense, a parent’s unsuccessful efforts, even if sincere, might not be sufficient to prevent a finding of failure of parental adjustment if the behavior that led to the child’s removal is not substantially corrected. See id. As explained, the court’s finding that Mother was either unwilling or unable to substantially correct her drug use does not go against the clear weight of the evidence, given that Mother continued to miss tests and continued to test positive even while benefiting from reunification services, and given that she “very quickly relapsed on methamphetamine” after spending over three months at an inpatient treatment facility. In short, the evidence showed that Mother either could not stop using drugs because of addiction, in which case she was unable to substantially correct the behavior, or that she was choosing to not stop using drugs, in which case she was unwilling. Either way, the court’s finding did not go against the clear weight of the evidence.

¶56 Lastly, Mother contends that her relapses “should only be disqualifying if the relapse renders her incapable of taking care of her children.” For this proposition, Mother cites Utah Code subsection 80-4-302(2)(c), which states, “In determining whether a parent or parents are unfit or have neglected a child the juvenile court shall consider: … habitual or excessive use of intoxicating liquors, controlled substances, or dangerous drugs that render the parent unable to care for the child. …” See id. § 80-4-302(2)(c) (LexisNexis Supp. 2022). According to Mother, the court was only allowed to ground its termination decision in her drug use if it made specific findings that the drug use made her “unable to care” for the Children. See id.

¶57 But we have previously stated that the considerations listed under subsection 80-4-302(2) “apply to two specific grounds for termination under subsection [80-4-301(1)]—whether a parent is ‘unfit or incompetent’ pursuant to subsection [80-4-301(1)(c)], and whether a parent ‘has neglected or abused the child’ pursuant to subsection [80-4-301(1)(b)].” In re L.A., 2017 UT App 131, ¶ 33, 402 P.3d 69. This is because the statute only requires the juvenile court to take the listed considerations into account “[i]n determining whether a parent or parents are unfit or have neglected a child.” Utah Code Ann. § 80-4-302(2) (emphasis added). So under our controlling precedent, subsection 80-4-302(2) is inapplicable to the ground for termination at issue here, which is failure of parental adjustment. The court was thus not required to consider whether Mother’s drug use rendered her “unable to care for” the Children, and we need not consider Mother’s argument on that point. See id.see also In re L.A., 2017 UT App 131, ¶ 33, 402 P.3d 69.

¶58 In short, there was sufficient evidence of Mother’s ongoing drug use, thereby also supporting the court’s finding that Mother was “unable or unwilling within a reasonable time to substantially correct the circumstances, conduct, or conditions that led to placement of [the Children] outside of their home.” Utah Code Ann. § 80-4-102(2). We are thus unconvinced that the court “failed to consider all of the facts” or that the court’s decision was “against the clear weight of the evidence.” In re E.R., 2021 UT 36, ¶ 7, 496 P.3d 58 (quotation simplified).

II. Best Interest

¶59 After finding that grounds for termination existed, the juvenile court determined that termination of Mother’s parental rights and adoption by the foster family was in the Children’s best interest. On appeal, Mother argues that there was not clear and convincing evidence that termination of Mother’s parental rights, as opposed to placement with Grandparents, was in the Children’s best interest. Relatedly, she asks us to “remand with instructions to the juvenile court to consider the viability of guardianship or other custodial arrangements with Grandmother.” We decline this request and instead affirm the juvenile court’s best interest determination.15

¶60 If a juvenile court determines that grounds for termination exist, the court must then consider whether termination is in the child’s best interest. See In re B.T.B., 2020 UT 60, ¶ 46, 472 P.3d 827; see also Utah Code Ann. § 80-4-103(2)(c) (explaining that a court should “consider the welfare and best interest of the child of paramount importance in determining whether to terminate parental rights”). This consideration should be directed by “two related pieces of important guidance” provided by our legislature. In re J.J.W., 2022 UT App 116, ¶ 27, 520 P.3d 38.

¶61 First, “[a] child’s need for a normal family life in a permanent home, and for positive, nurturing family relationships is usually best met by the child’s natural parents.” Utah Code Ann. § 80-4-104(8) (LexisNexis Supp. 2022). There is accordingly “a strong preference for families to remain together.” In re J.J.W., 2022 UT App 116, ¶ 27, 520 P.3d 38. Second, a court should terminate parental rights only when doing so is “strictly necessary” “from the child’s point of view.” Utah Code Ann. § 80-4-301(1); see also In re J.J.W., 2022 UT App 116, ¶ 28, 520 P.3d 38. Put differently, “termination must be strictly necessary to promote the child’s best interest.” In re B.T.B., 2020 UT 60, ¶ 60, 472 P.3d 827. Because this analysis occurs “from the child’s point of view,” “the court’s focus should be firmly fixed on finding the outcome that best secures the child’s well-being.” Id. ¶ 64.

¶62 When considering whether termination is strictly necessary, a juvenile court must consider, “among other relevant factors,” whether “efforts to place the child with kin who have, or are willing to come forward to care for the child, were given due weight.” Utah Code Ann. § 80-4-104(12)(b)(ii). Our supreme court has clarified that this part of the inquiry also requires courts to explore whether other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating parental rights. In some cases, alternatives will be few and unsatisfactory, and termination of the parent’s rights will be the option that is in the child’s best interest. But in other cases, courts should consider whether other less-permanent arrangements might serve the child’s needs just as well. In re B.T.B., 2020 UT 60, ¶ 67, 472 P.3d 827 (quotation simplified).16

¶63 Two of our recent cases shed light on how a court should consider kinship placements: In re A.H., 2022 UT App 114, 518 P.3d 993, and In re J.J.W., 2022 UT App 116, 520 P.3d 38.

¶64 In the first case, the State moved to terminate the rights of a mother and father to their seven children. In re A.H., 2022 UT App 114, ¶ 16, 518 P.3d 993. The juvenile court did not terminate the parents’ rights in the oldest five children, and those children were placed with their grandparents “under an order of permanent custody and guardianship.” Id. ¶ 21. But the court did terminate the parents’ rights in the youngest two children, and the court did so even though the grandparents were willing and able to care for those younger children. See id. ¶¶ 26, 29. The court’s decision regarding the younger children was based on its finding that it was in their best interest to be adopted by their foster family. Id. ¶ 29. We reversed on appeal, however, concluding “that the juvenile court’s best-interest determination was against the clear weight of the evidence presented at trial.” Id. ¶ 57. We did so because there was not clear and convincing evidence that terminating the parents’ rights in the younger children “was strictly necessary, especially given the presence of another available and acceptable option—permanent guardianship with [the grandparents], alongside their five siblings—that would not require permanent severance of familial bonds and that would serve the [younger children’s] best interest at least as well as adoption.” Id.

¶65 In the second case, a district court terminated a father’s parental rights after determining that it was in the child’s best interest to be adopted by his grandparents. In re J.J.W., 2022 UT App 116, ¶¶ 13, 16, 520 P.3d 38. On appeal, we held that the “court fell into legal error when it failed to expressly consider other apparent reasonable options short of termination that might serve [the child’s] best interest just as well.” Id. ¶ 37. More specifically, we concluded that “the court erred by failing to explain, on the record, why a permanent custody and guardianship arrangement” with the child’s grandparents “could not serve [the child’s] best interest, and why termination of [the father’s] parental rights—as opposed to imposition of a guardianship—was strictly necessary to further that interest.” Id. We accordingly vacated the termination order and remanded “the case for a renewed best-interest analysis.” Id.

¶66 From our review of these cases and the statutes that they interpreted, three principles emerge that matter here.

¶67 First, courts have an obligation to consider proposed kinship placements, and if a court rejects a kinship placement, it must give reasons on the record for doing so. See id. ¶ 32 (faulting a court for rejecting a kinship placement without explaining “why it rejected that option”); see also In re A.H., 2022 UT App 114, ¶ 37, 518 P.3d 993 (“Courts that order termination of parental rights without appropriately exploring feasible alternatives to termination have not properly applied the second part of the two-part termination test.” (quotation simplified)); In re B.T.B., 2020 UT 60, ¶ 74, 472 P.3d 827 (explaining that strict necessity “requires the court to find, on the record, that no other option can achieve the same welfare and best interest for the child” as termination).

¶68 Second, although there’s a statutory preference for kinship placements, and although courts must appropriately explore kinship placements as a result, courts that explore such options may then conclude, on the facts before them, that a different option is in fact in a child’s best interest. See In re A.H., 2022 UT App 114, ¶ 37, 518 P.3d 993 (“In some cases, alternatives will be few and unsatisfactory, and termination of the parent’s rights will be the option that is in the child’s best interest.” (quotation simplified)); see also In re J.J.W., 2022 UT App 116, ¶ 29, 520 P.3d 38 (same). On this, In re A.H. stands as something of an illustrative contrast. There, we explained that if “a completely appropriate kinship placement” exists, it “becomes significantly more difficult” to show that termination is strictly necessary. 2022 UT App 114, ¶ 49, 518 P.3d 993. And we accordingly reversed in that case because there were “no concerns” with the proposed kinship placement and there was accordingly not clear and convincing evidence that termination was strictly necessary. Id. ¶¶ 50, 57. But if a case presents itself in which a court does appropriately consider the proposed kinship options and yet concludes that those options are not completely appropriate based on valid concerns, the court could then reject the proposed kinship placement and find that termination is strictly necessary. See id. ¶ 37; see also In re B.T.B., 2020 UT 60, ¶ 66, 472 P.3d 827; In re J.J.W., 2022 UT App 116, ¶ 29, 520 P.3d 38.

¶69 Third, if a court has complied with its statutory obligations, its resultant best interest determination is entitled to deference. See In re J.J.W., 2022 UT App 116, ¶ 18, 520 P.3d 38; see also In re E.R., 2021 UT 36, ¶ 22, 496 P.3d 58. This is because the best interest determination “is a factually intense inquiry dependent on the unique circumstances and needs of each child.” In re E.R., 2021 UT 36, ¶ 22, 496 P.3d 58 (quotation simplified). Furthermore, “the juvenile court has a superior perspective in light of its view of the demeanor of both parents and children.” Id. ¶ 23. For these reasons, “we do not lightly reverse a court’s best-interests determination.” In re A.H., 2022 UT App 114, ¶ 38, 518 P.3d 993. But to be clear, a juvenile court’s determinations are not “afforded a high degree of deference”; rather, “the deference afforded to the juvenile court is the same level of deference given to all lower court findings of fact and fact-like determinations of mixed questions.” In re E.R., 2021 UT 36, ¶¶ 29–30, 496 P.3d 58. Accordingly, we will overturn a juvenile court’s decision “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). In In re J.J.W., for example, we remanded because the district court failed to consider whether a kinship placement could serve the child’s best interest. 2022 UT App 116, ¶ 37. And in In re A.H., we reversed where the juvenile court did consider the kinship placement but its decision went “against the clear weight of the evidence presented at trial.” 2022 UT App 114, ¶ 57, 518 P.3d 993.

¶70 With these principles in mind, we review the juvenile court’s best interest determination in this case and affirm.

¶71 First, unlike what occurred in In re J.J.W., the court here did “consider” and “discuss” the possibility of a kinship placement (namely, one with Grandparents). See 2022 UT App 116, ¶ 31, 520 P.3d 38. When Mother first requested that the Children be placed with Grandparents, the court denied that request because Step-Grandfather could not pass a background check. But the minutes for the hearing indicate that the court planned to “continue to work on placement clearance of” Grandparents. And the minutes from later hearings indicate that placement with Grandparents continued to be a topic of discussion among the parties and the court. Notably, the parties informed the court that although Step-Grandfather was able to get three of his LIS cases overturned, two could not be overturned because of their significance. In its termination order, the court documented this history, explaining that Step-Grandfather “did not pass the DCFS background check and, as a result, [Grandparents’] request for placement was denied.” The court explained further: “The denial was administratively appealed, which [Grandparents] lost. Thereafter, Mother … asked the Court to waive the failed background check and place the [Children] in [Grandparents’] direct custody. The Court denied this request after considering all of the information and argument from the parties.” And it later concluded that “due weight was given to possible kin placements, but they did not occur due to [Step-Grandfather] failing his background check.”

¶72 Despite all this, Mother argues that the court’s consideration was inadequate because the court did not further consider Grandparents’ apparent willingness to comply with a safety plan and Step-Grandfather’s offer to complete a sexual behavioral risk assessment. Relatedly, Mother points out “that Step-Grandfather worked out of the house six days a week” and thus claims “that his presence in Grandmother’s household would therefore be minimal.” But there is nothing in the record to suggest that the court didn’t consider this information. Rather, the record indicates that the court considered it but still concluded that Grandparents were an inappropriate placement given the import of Step-Grandfather’s LIS cases and background.

¶73 In short, the juvenile court repeatedly considered the possibility of placing the Children with Grandparents. It is thus clear to us that the court fully complied with its obligation to “appropriately explor[e]” whether they were an appropriate placement option. See In re A.H., 2022 UT App 114, ¶ 37, 518 P.3d 993.

¶74 Second, unlike what occurred in In re A.H., there were valid concerns in this case with Grandparents. See id. ¶ 50 (explaining that there were “no concerns” with the grandparents and that the juvenile court even found that they were “certainly appropriate caregivers”). As explained above, the juvenile court rejected Grandparents as a placement option because Step-Grandfather could not pass the DCFS background check due to his cases in the LIS. We see no basis for invalidating the court’s conclusion about the import of Step-Grandfather’s background.

¶75 If DCFS “makes a supported finding that a person committed a severe type of child abuse or neglect,” it enters “the name and other identifying information of the perpetrator with the supported finding” into the LIS. Utah Code Ann. § 62A-4a-1005(1)(b)(i) (LexisNexis Supp. 2021). A “supported finding” “means a finding by [DCFS] based on the evidence available at the completion of an investigation that there is a reasonable basis to conclude that abuse, neglect, or dependency occurred.” Id. § 62A-4a-101(42). If the alleged perpetrator is “18 years of age or older,” then “severe type of child abuse or neglect” means “chronic abuse,” “severe abuse,” “sexual abuse,” “sexual exploitation,” “abandonment,” “chronic neglect,” or “severe neglect.” Id. § 62A-4a-1002(1)(i) (2018). If the alleged perpetrator is “under the age of 18,” then “severe type of child abuse or neglect” means “serious physical injury, as defined in Subsection 76-5-109(1), to another child which indicates a significant risk to other children” or “sexual behavior with or upon another child which indicates a significant risk to other children.” Id. § 62A-4a-1002(1)(ii).17

¶76 As part of this process, DCFS must “serve notice of the finding on the alleged perpetrator.” Id. § 62A-4a-1005(1)(a) (Supp. 2021). The alleged perpetrator may then “file a written request asking [DCFS] to review the findings made,” “immediately petition the juvenile court under Section 80-3-404,” or “sign a written consent to … the supported finding” and entry in the LIS. Id. § 62A-4a-1005(3)(a). DCFS must remove an alleged perpetrator’s name and information from LIS “if the severe type of child abuse or neglect upon which the [LIS] entry was based: (A) is found to be unsubstantiated or without merit by the juvenile court under Section 80-3-404; or (B) is found to be substantiated, but is subsequently reversed on appeal.” Id. § 62A-4a-1005(e)(i). A finding is “substantiated” if a juvenile court determines “based on a preponderance of the evidence that abuse or neglect occurred.” Id. § 62A-4a-101(40).

¶77 Mother is correct that the record does not include the underlying facts of the LIS cases, and it may have been helpful for the analyses of both the juvenile court and our court if such information had been provided below. Nevertheless, the record is still sufficiently clear on several key things. One is that Step-Grandfather at one point had five cases in the LIS. These cases would have necessarily required a finding from DCFS that Step-Grandfather committed “a severe type of child abuse or neglect.” Id. § 62A-4a-1005(1). Another is that DCFS made efforts to help Step-Grandfather get the cases overturned, that three of the cases were overturned, but that two cases were still upheld because they were “of such significance that they cannot be overturned.”18 And finally, Grandmother’s proffered testimony was that there “was a successful reunification” in at least one of those cases, which meant that, whatever it was, the conduct at issue was serious enough that Step-Grandfather’s own children had been removed from his custody at some point.

¶78 We simply cannot fault the juvenile court for finding that it was not in the Children’s best interest to be placed in a home with somebody who, despite having tried to be removed from the LIS, nevertheless remained in the LIS based on two prior cases that were “of such significance that they cannot be overturned.” See In re J.P., 2021 UT App 134, ¶¶ 11, 20–23, 502 P.3d 1247 (upholding a juvenile court’s determination that placement with relatives was inappropriate where one member of the household had a “history of violence”). Indeed, beyond the obvious safety concerns raised by the LIS cases, we further note some legislative support for the court’s assessment of their significance to the question before it. By statute, a person who is listed in the LIS “may be disqualified from adopting a child, receiving state funds as a child care provider, or being licensed by” DCFS. Utah Code Ann. § 62A-4a-1005(2)(a)(v). While Mother points out that a kinship placement is not precisely the same thing as an adoption or being licensed by DCFS, this statute still evidences the legislature’s conclusion that placement on the LIS should result in some restriction of a person’s ability to have sustained access to children. Given this, we don’t see why a juvenile court couldn’t likewise conclude that there is good reason to not place children in the care of someone who is listed in the LIS.

¶79 Mother nevertheless contends that the facts underlying the LIS cases could have been fairly benign and therefore an invalid basis for not placing the Children with Grandparents. But if that were true, Step-Grandfather could have testified at the termination hearing, provided more information, and thus explained to the court himself why the LIS cases shouldn’t preclude placement. But he didn’t. Because of this, what the court was left with was that Step-Grandfather still had LIS cases that were based on a finding that he committed “a severe type of child abuse or neglect,” and that almost eighteen months after learning that these cases could prevent placement, two of the cases were still in the LIS because of their significance. Given all this, we decline to fault the court for not delving deeper into evidence that Mother could have provided but didn’t.19

¶80 Third and finally, given the court’s consideration of Grandparents and the information that it received throughout the proceedings and then noted in its order, we defer to its ultimate conclusion that although there was a potential kinship option, termination was in the Children’s best interest. See In re E.R., 2021 UT 36, ¶ 22, 496 P.3d 58. As explained above, DCFS found that Step-Grandfather committed “a severe type of child abuse or neglect” and that two of the cases could not be overturned because of their significance. Faced with those facts, the juvenile court could and indeed did validly conclude that placement with Grandparents would be “unsatisfactory,” In re B.T.B., 2020 UT 60, ¶ 67, 472 P.3d 827 (quotation simplified), and not “acceptable,” In re A.H., 2022 UT App 114, ¶ 49, 518 P.3d 993.

¶81 Having properly rejected the proposed kinship placement, the court then explained why adoption was in the Children’s best interest. It found that the Children had “thrived in the care of the foster parents” and “formed a strong familial bond with the foster parents and look to the foster parents as their natural parents.” The court also explained that N.W. has a rare chromosomal syndrome and that the foster parents have spent time researching the condition and learning how to best care for N.W. And with respect to the Children, the court found that the foster parents “treated [the Children] as their own” and “tailored their lives so that one of their primary objectives is to provide for the needs and safety of” the Children. These findings amply demonstrate that adoption by the foster parents was indeed a viable and positive option for the Children.

¶82 Given the findings detailed above, Mother has not persuaded us that the court “failed to consider all of the facts” or that it “considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” In re E.R., 2021 UT 36, ¶ 7, 496 P.3d 58 (quotation simplified). We accordingly decline to disrupt the court’s determination that it was in the Children’s best interest to be adopted by their foster family and that termination of Mother’s parental rights was strictly necessary to achieve that outcome.

CONCLUSION

¶83 The court’s finding that grounds for termination existed was not against the clear weight of the evidence, nor was its determination that terminating Mother’s parental rights was strictly necessary to promote the Children’s best interest. The decision below is accordingly affirmed.

——————–

1 When the Twins were born, Mother was living with the Children’s alleged father. The alleged father participated throughout the proceedings, and at the close of the same termination proceeding at issue in this appeal, the juvenile court terminated his rights, if any, in the Children. In a separate appeal, this court upheld that decision based on the alleged father’s failure to establish paternity. See Order, Case No. 20210915-CA (Feb. 18, 2022).

Mother was married to another man when each of the Children were born. This made him their presumptive father under the Utah Uniform Parentage Act. See Utah Code Ann. § 78B-15-204(1)(a) (LexisNexis 2018). But although this man was properly served, he never appeared. The juvenile court thus determined that he had abandoned the Children and terminated his parental rights as well. That portion of the court’s order is not at issue in this appeal.

The Management Information System “contain[s] all key elements of each family’s current child and family plan” and “alert[s] caseworkers regarding deadlines for completion of and compliance with policy, including child and family plans.” Utah Code Ann. § 62A-4a-1003(3)(a), (b) (LexisNexis Supp. 2021).

Effective September 1, 2022, several sections relevant to the LIS were repealed and renumbered. Compare id. §§ 62A-4a-101, -1005, -1006, with id. §§ 80-2-102, -708, -1002 (Supp. 2022). We cite to the versions in effect at the time of the termination hearing.

Although not entirely clear from the record, it appears that it was DCFS that administratively overturned three of the LIS cases against Step-Grandfather. See generally Utah Code Ann. § 62A-4a-1005(3)(i) (explaining that “the alleged perpetrator” may “file a written request asking [DCFS] to review the findings made”).

The Children were initially placed in the care of a foster mother. When the foster mother was no longer able to care for all the Children, the Twins went to live with another foster family. In either April or May 2020, all the Children went to live with a new foster family, where they remained through the duration of the proceedings.

The termination decision at issue in this appeal applied only to Mother’s parental rights in the Children. But because the juvenile court’s decision in this case was partly based on Mother’s choices while pregnant with A.W., we include those relevant facts.

Unless a statutory exception applies, “the juvenile court may not extend reunification services beyond 12 months after the day on which the minor is initially removed from the minor’s home.” Utah Code Ann. § 80-3-409(6) (LexisNexis Supp. 2022). As the juvenile court later explained in its termination decision, Mother was provided with separate reunification services with respect to A.W., so she was provided “ ‘additional’ services and ‘additional’ time to remedy the safety concerns that brought the [Children] in this matter into DCFS custody.”

The supervised visits occurred at either a DCFS office or a park, but the DCFS caseworkers periodically made visits to Mother’s home.

Grandmother, whose testimony was offered via proffer, would have testified that Mother had planned to move in with her after leaving the inpatient treatment facility, that there was room for Mother to move in, but that Mother never came to live with her.

“PrimeTime 4 Kids is an early intervention program serving children 0–2 and their families. … Early intervention is a federally mandated program that is established to help children 0–2 with developmental disabilities.” PrimeTime 4 Kids, https://primetime4kids.org/ [https://perma.cc/HC8T-U7GF].

10 The alleged father also testified, but his testimony was relevant to his asserted parental rights, which are not at issue in this appeal.

11 The juvenile court judge that presided over the termination hearing was new to the case.

12 Because there have been no material changes to the relevant statutory provisions, we cite the current version unless otherwise noted.

13 The court also found that “one of Mother’s cousins expressed a desire to have the [Children] placed with her; however, the cousin never filled out the required background check.” Mother has not challenged this aspect of the court’s ruling.

14 The juvenile court found that DCFS made reasonable efforts to return the Children to Mother. It also found that Mother received “ ‘additional’ services and ‘additional’ time” due to A.W.’s birth. Mother did not challenge those findings below or on appeal.

15 In her briefing, Mother seems to separately argue that the Children should have been placed with Grandmother alone, even if Step-Grandfather was not a good placement option. But the court’s order, as well as minute entries from prior hearings, indicate that Mother and Grandparents collectively requested that the court place the Children with Grandmother and Step-Grandfather together. Regardless, even if the request was that the Children be placed with only Grandmother, it was still appropriate for the court to consider Step-Grandfather’s background since he lived with Grandmother. Cf. In re J.P., 2021 UT App 134, ¶¶ 11, 20–23, 502 P.3d 1247 (affirming a juvenile court’s determination that a placement was inappropriate where one member of the household had a “history of violence”).

16 Our supreme court was writing generally about the strict necessity requirement and not specifically about the kinship inquiry. But we take its analysis to apply to the kinship inquiry, which is, after all, a part of strict necessity. See In re J.J.W., 2022 UT App 116, ¶ 29 (applying this language to the kinship inquiry); In re A.H., 2022 UT App 114, ¶ 37, 518 P.3d 993 (same).

17 Section 62A-4a-1002 has been repealed. See In re A.C., 2022 UT App 121, ¶ 6 n.6, 521 P.3d 186. The definition of “severe type of child abuse or neglect” can now be found in Utah Code section 80-1-102(78)(a) (LexisNexis Supp. 2022).

18 The State claimed that one of the cases involved sexual abuse, but Grandmother would have testified that the cases were “not … for any form of sexual abuse.” Our resolution of this issue does not turn on whether the cases involved sexual abuse, so we need not resolve this dispute.

19 At oral argument, Mother suggested that Step-Grandfather couldn’t have testified about the cases because they happened long ago and “he didn’t know” what the cases were about. If it were true that Step-Grandfather didn’t remember the underlying facts of the cases, he could have requested information from DCFS. See Utah Code Ann. § 62A-4a-1006(4)(c)(ii)(B) (explaining that DCFS can access the LIS to “respond to a request for information from a person whose name is listed in” the LIS).

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In Re K.T. 2023 UT App 5 – Substantiation of Child Abuse

2023 UT App 5

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF K.T.,

A PERSON UNDER EIGHTEEN YEARS OF AGE.

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

Opinion

No. 20210553-CA

Filed January 20, 2023

Third District Juvenile Court, Summit Department

The Honorable Elizabeth M. Knight No. 1190244

Gregory W. Stevens, Attorney for Appellant

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

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

CHRISTIANSEN FORSTER, Judge:

¶1 Appellant J.K. (Mother) appeals the juvenile court’s order substantiating several database findings of abuse entered by the Division of Child and Family Services (DCFS). We affirm.

BACKGROUND

¶2      In August 2020, the State filed with the juvenile court a Verified Petition for Protective Supervision requesting the court to find Mother’s son, K.T., “abused, neglected and/or dependent and to grant protective supervision of [K.T.] to DCFS.” The petition alleged that DCFS had on three separate occasions previously supported findings of abuse of K.T. against Mother.[1] In addition to the request for protective supervision of K.T., the petition requested that the juvenile court enter an order “[s]ubstantiating[2] the DCFS supported finding(s) pursuant to Utah Code Ann. § 78A-6-323,” now recodified at Utah Code section 80-3-404.[3]

¶3 In March 2021, following discussions with Mother, the State filed with the juvenile court an Amended Verified Petition for Protective Supervision. The amended petition again asked the court to find K.T. “neglected and/or dependent and to grant protective supervision of [K.T.] to DCFS,” but it eliminated the prior request that the court find K.T. to be “abused.” The amended petition repeated the original petition’s request that the court enter a finding “[s]ubstantiating the DCFS supported finding(s) pursuant to Utah Code” section 80-3-404.

¶4 The parties thereafter appeared before the juvenile court to adjudicate the amended petition. At the outset of the hearing, the State indicated it had reached an agreement with Mother to submit the amended petition “for [a] finding of neglect” and requested, without objection, that “the issue of substantiating the DCFS supported findings” be “set over.” Thereafter, Mother admitted many of the allegations of the amended petition. But pursuant to rule 34(e) of the Utah Rules of Juvenile Procedure, she declined to either admit or deny the allegations that DCFS had previously supported findings of abuse by Mother against K.T.[4] The parties then presented argument. The State argued for a finding of neglect, while Mother argued for a finding of dependency. After the hearing, the court entered a finding of neglect[5] and granted “[p]rotective supervision of [K.T.] . . . to DCFS.”[6] The court “reserve[d] the issue of substantiating the DCFS supported findings for the next hearing.”

¶5 In June 2021, the case came before the juvenile court for a disposition hearing, during which the State requested that the court address the substantiation issue. The court entertained argument and took the matter under advisement. It thereafter entered a written order substantiating the three DCFS supported findings of abuse by Mother contained in both the original and amended petitions. Specifically, it substantiated the supported findings that K.T. had suffered emotional abuse, physical abuse, and chronic emotional abuse.

ISSUES AND STANDARDS OF REVIEW

¶6 Mother now appeals the juvenile court’s order substantiating the DCFS supported findings of abuse and raises three issues for our review. The first two issues present questions as to the statutory authority of the juvenile court. Mother first argues the juvenile court exceeded its statutory authority to substantiate the DCFS findings of abuse because the amended petition alleged only neglect or dependency and the court had adjudicated only a finding of neglect. “Questions of jurisdiction and statutory interpretation are questions of law that we review for correctness, giving no particular deference to lower court decisions.” In re B.B.G., 2007 UT App 149, ¶ 4, 160 P.3d 9.

¶7 In a similar vein, Mother next argues the State and the juvenile court were bound by the stipulation of the parties to submit the amended petition only for “a finding of neglect.” When “the facts [are] stipulated, we review the conclusions drawn by the juvenile court for correctness.” In re B.T., 2009 UT App 182, ¶ 5, 214 P.3d 881 (quotation simplified).

¶8 Lastly, Mother alternatively argues her trial counsel was ineffective for not advising her that the juvenile court could deviate from its legal adjudication of neglect and later substantiate for abuse. “An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law.” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162.

ANALYSIS

I.

¶9 We turn first to Mother’s argument that the juvenile court exceeded its statutory authority in substantiating the DCFS findings for abuse because the amended petition alleged only neglect or dependency and the court had adjudicated K.T. as neglected. We are unpersuaded by this argument because it conflates the State’s request that the court adjudicate K.T. as neglected with its independent request that the court substantiate the DCFS supported findings of abuse. The State’s request to adjudicate K.T. as neglected so as to bring the child within the jurisdiction of the court and under the protective supervision of DCFS was separate from its request that the court substantiate DCFS’s finding that K.T. had suffered a severe type of child abuse. As explained below, the juvenile court had independent statutory authority to adjudicate both issues.

¶10 In Utah, proceedings concerning abuse, neglect, and dependency are governed by Chapter 3 of the Utah Juvenile Code (the UJC). Pursuant to Chapter 3, “any interested person may file an abuse, neglect, or dependency petition” in the juvenile court. Utah Code Ann. § 80-3-201(1) (LexisNexis Supp. 2022). Among other things, the petition must include “a concise statement of facts, separately stated, to support the conclusion that the child upon whose behalf the abuse, neglect, or dependency petition is brought is abused, neglected, or dependent.” Id. § 80-3-201(4)(a). After the petition is filed, the court may, upon making specific findings, “order that the child be removed from the child’s home or otherwise taken into protective custody.” Id. § 80-3-204(2). If the court so orders, a shelter hearing must then be held to determine whether continued removal and placement of the child in DCFS’s temporary custody are necessary. See id. § 80-3-301.

¶11 After the shelter hearing, the juvenile court conducts an adjudication hearing. See id. § 80-3-401. An adjudication is a determination of the merits of the State’s petition of abuse, neglect, or dependency. “If, at the adjudication hearing, the juvenile court finds, by clear and convincing evidence, that the allegations contained in the abuse, neglect, or dependency petition are true, the juvenile court shall conduct a dispositional hearing.” Id. § 80-3-402(1); see also In re S.A.K., 2003 UT App 87, ¶ 14, 67 P.3d 1037 (“In child welfare proceedings, if the petition’s allegations of neglect, abuse, or dependency are found to be true in the adjudication hearing, those findings provide the basis for determining the consequences in the disposition hearing.”). “The dispositional hearing may be held on the same date as the adjudication hearing . . . .” Utah Code Ann. § 80-3-402(2). Dispositions available after adjudication include, among other things, vesting custody of an abused, neglected, or dependent minor in DCFS or any other appropriate person. Id. § 80-3405(2)(a)(i). Thus, an adjudication of abuse, neglect, or dependency brings the child and family within the juvenile court’s jurisdiction.

¶12 A separate chapter of the UJC addresses child welfare services. Chapter 2 creates DCFS and establishes its statutory authority and responsibilities. Among these is its responsibility to investigate reports that a child is abused, neglected, or dependent and to enter findings at the conclusion of its investigations. See id. § 80-2-701. A “supported” finding by DCFS is based on evidence available at the completion of an investigation indicating that “there is a reasonable basis to conclude that abuse, neglect, or dependency occurred.” Id. § 80-1-102(89). Chapter 2 requires that DCFS notify alleged perpetrators of supported findings and establishes a procedure for challenging such findings. Id. §§ 80-2707, -708. In cases involving a supported finding of a severe type of child abuse, the statute also gives DCFS authority to file a petition in the juvenile court seeking substantiation of a supported finding. Id. § 80-2-708(1)(c).

¶13 Part 10 of Chapter 2 governs DCFS’s record-keeping responsibilities. DCFS uses a database known as the Management Information System to track child welfare and protective services cases. See id. § 80-2-1001(3), (4). DCFS uses a subset of that system known as the Licensing Information System (the LIS) to track cases for licensing purposes. See id. § 80-2-1002(1)(a)(i). In cases involving a severe type of child abuse or neglect, DCFS enters supported findings into the LIS and the alleged perpetrator thereafter “may be disqualified from adopting a child, receiving state funds as a child care provider, or being licensed by DCFS, a human services program, a child care provider or program, or a covered health care facility.” State v. A.C., 2022 UT App 121, ¶ 3, 521 P.3d 186 (quotation simplified).

¶14 All these statutes were in play in these proceedings. On three separate occasions prior to the State’s filing of the petition, DCFS had investigated Mother for abuse of K.T. Following each of its three investigations, DCFS had supported a finding of abuse of K.T. against Mother. One of those supported findings was of “chronic emotional abuse” of K.T., which falls within the statutory definition of a “severe type of child abuse” under Utah Code section 80-1-102(78)(a)(i)(A) that then must be entered into the LIS.

¶15 The amended petition removed the request that the juvenile court adjudicate K.T. as abused. Instead, it requested that the court adjudicate K.T. as neglected. But the amended petition also recited DCFS’s history with K.T., stating that DCFS had previously supported findings of abuse against Mother, and requested that the court substantiate these supported findings of abuse. Adjudicating both requests for relief fell squarely within the juvenile court’s express statutory authority. Indeed, Mother identifies no statutory provision limiting the court’s authority to substantiate DCFS findings of abuse based on the outcome of the State’s independent request to adjudicate the status of an allegedly abused, neglected, or dependent child.

¶16 Mother’s argument that the juvenile court’s substantiation decision must be consistent with its adjudication decision in a related petition for abuse, neglect, or dependency is also inconsistent with the burdens of proof dictated by the UJC. While the juvenile court may adjudicate a minor as abused, neglected, or dependent based only on clear and convincing evidence, it can substantiate a DCFS finding based on a mere preponderance of the evidence. Compare Utah Code Ann. § 80-1-102(87), with id. § 80-3-402(1). These different standards give rise to the distinct possibility that a juvenile court could decline to adjudicate a minor as abused, while still substantiating a DCFS finding of abuse based on the lower burden of proof.

¶17 Despite the absence of a statutory provision linking the outcome of the amended petition to the outcome of a request for substantiation, Mother argues the juvenile court’s ruling on the neglect petition ended the court proceedings, “leaving no question open for further judicial action.” (Quoting In re M.W., 2000 UT 79, ¶ 25, 12 P.3d 80.) But this argument is directly contrary to the statutory language. Utah Code section 80-3-404 addresses the responsibility of the juvenile court to adjudicate DCFS supported findings of severe child abuse or neglect and their inclusion in or removal from the LIS. Upon the filing of “an abuse, neglect or dependency petition . . . that informs the juvenile court that [DCFS] has made a supported finding that an individual committed a severe type of child abuse or neglect, the juvenile court shall . . . make a finding of substantiated, unsubstantiated, or without merit” and include the finding in a written order. Utah Code Ann. § 80-3-404(1) (emphasis added). This provision also allows joinder of proceedings for adjudication of supported findings of severe abuse or neglect with those that do not constitute severe abuse. Id. § 80-3-404(3). And it does not limit the juvenile court’s ability to substantiate findings of severe abuse to those cases in which the court has granted a petition to adjudicate a child as abused. In short, the juvenile court was required to rule on the State’s substantiation request.[7]

II.

¶18 Next, Mother argues the State and juvenile court were bound by the facts and legal conclusions contained in the amended petition to which the parties had stipulated. Mother reasons that because the parties had stipulated to a finding of neglect, the juvenile court could not substantiate DCFS’s supported findings of abuse.

¶19 Mother’s argument is inconsistent with both the language of the amended petition and the course of the proceedings before the juvenile court. At the hearing on the amended petition, the State informed the court that the State and Mother had agreed to submit the matter to the court for a “finding of neglect” and that they “would ask also the Court to reserve the issue of substantiating the DCFS supporting findings at this point in time and set that over for disposition.” In connection therewith, Mother agreed to admit the allegations of the amended petition except those in paragraphs 5 and 6. Paragraph 5 alleged DCFS’s history with the family, including DCFS’s supported findings of abuse. Paragraph 6 alleged additional facts supporting the conclusion that K.T. was neglected or dependent.

¶20 Although Mother declined to admit the allegations of paragraphs 5 and 6, she did not deny them. Instead, she proceeded pursuant to rule 34(e) of the Utah Rules of Juvenile Procedure by neither admitting nor denying them. But as the juvenile court expressly informed Mother at the hearing, Mother’s decision not to deny those allegations had legal significance since “[a]llegations not specifically denied by a respondent shall be deemed true.” See Utah R. Juv. P. 34(e). The court was therefore free to base its decision on all the allegations of the amended petition, including those in paragraph 6 regarding DCFS’s supported findings of abuse. Because the parties’ stipulation was not inconsistent with the court’s ruling, it did not err.

III.

¶21 Lastly, we turn to Mother’s argument that her trial counsel was ineffective for not advising her that the juvenile court could deviate from its adjudication of neglect and substantiate DCFS’s findings of abuse for entry into the LIS. To prevail on an ineffective assistance of counsel claim, Mother must show that counsel’s performance was deficient and that this deficient performance prejudiced her defense. See In re C.M.R., 2020 UT App 114, ¶ 19, 473 P.3d 184. A reviewing court must “indulge in a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance, and that under the circumstances, the challenged action might be considered sound trial strategy.” State v. J.A.L., 2011 UT 27, ¶ 25, 262 P.3d 1 (quotation simplified).

¶22 After indulging these presumptions, we are unable to conclude that counsel’s performance was deficient because there are many sound reasons why Mother’s decision to settle the petition with a finding of neglect, while allowing the juvenile court to resolve the substantiation issue, was sound strategy. The petition sought a finding that K.T. had been abused, and it was possible, if not likely, that proceeding to trial on the original petition could have resulted in both an adjudication of abuse and a substantiation of the abuse claims against Mother. The fact that Mother now regrets her decision to settle does not lead to the conclusion that counsel performed deficiently. Mother appeared before the juvenile court, and the court explained her rights and questioned her about the voluntariness of her decision. Nothing in the record suggests that Mother’s decision to settle was the result of ineffective assistance of counsel.

CONCLUSION

¶23 The juvenile court acted well within its statutory authority in substantiating DCFS’s findings of child abuse, and the court was entitled to consider all the allegations of the amended petition when determining whether to substantiate that finding. Mother has not demonstrated how her decision to settle was the result of ineffective assistance of counsel. Accordingly, we affirm.

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

 

[1] As relevant here, “abuse” is defined as “nonaccidental harm of a child” or “threatened harm of a child.” Utah Code Ann. § 80-1102(1)(a)(i) (LexisNexis Supp. 2022). “‘Supported’ means a finding by [DCFS] based on the evidence available at the completion of an investigation, and separate consideration of each allegation made or identified during the investigation, that there is a reasonable basis to conclude that abuse, neglect, or dependency occurred.” Id. § 80-1-102(89).

[2] “‘Substantiated’ or ‘substantiation’ means a judicial finding based on a preponderance of the evidence, and separate consideration of each allegation made or identified in the case, that abuse, neglect, or dependency occurred.” Id. § 80-1-102(87).

[3] The statutory provisions of Title 78A of the Utah Code that were in effect at the time of the juvenile court proceedings have since been renumbered and recodified as part of the Utah Juvenile Code, which is now found in Title 80 of the Utah Code. Because the provisions relevant to our analysis have not been substantively amended, we cite the recodified version for convenience.

[4] Under rule 34(e) of the Utah Rules of Juvenile Procedure, “[a] respondent may answer by admitting or denying the specific allegations of the petition, or by declining to admit or deny the allegations. Allegations not specifically denied by a respondent shall be deemed true.” Utah R. Juv. P. 34(e).

Here, the juvenile court took great care to ensure that Mother understood the consequences of not denying these allegations. The court informed Mother that it was “going to find [the allegations] to be true, even though [she was] not admitting nor denying [them].” When Mother indicated she did not understand, the court took a break to allow Mother to confer with her counsel. Following the break, the court confirmed that Mother had ample opportunity to discuss the issue with counsel and understood what was happening with respect to the allegations at issue.

[5] Although the juvenile court entered a finding of neglect pursuant to the stipulation of the parties, it indicated the evidence was also sufficient to support a finding of abuse.

[6] Even though the court placed K.T. under the protective supervision of DCFS, K.T. remained in his father’s custody.

[7] Mother also argues the juvenile court erred by not ruling on the State’s substantiation request at the time it adjudicated the petition for neglect. But Mother did not preserve this argument below. When the State raised the substantiation request at the adjudication hearing and asked that it be continued to a later hearing, Mother did not object.

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In Utah is there a minimum age at which minor children can be left at home or allowed to walk to school by themselves?

No. There is no minimum age at which child can be left unsupervised in Utah. Child and Family Services uses the following definition to evaluate each situation:

Non-Supervision – The child is subjected to accidental harm or an unreasonable risk of accidental harm due to failure to supervise the child’s activities at a level consistent with the child’s age and maturity. Included below is a link to the Utah department of child and family services’ frequently asked questions page for more information.

https://dcfs.utah.gov/resources/faq/

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

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

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

In re A.H. – 2021 UT App 57 

THE UTAH COURT OF APPEALS 

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

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

Opinion 

No. 20190846-CA 

Filed May 28, 2021 

Third District Juvenile Court, Salt Lake Department 

The Honorable Mark W. May 

No. 1148287 

Colleen K. Coebergh, Attorney for Appellant 

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

Martha Pierce and Dixie Jackson, Guardians ad Litem 

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

POHLMAN, Judge: 

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

BACKGROUND1  

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

The Initial Verified Child Welfare Petition 

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

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

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

The Period of Reunification Services 

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

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

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

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

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

The Petition to Terminate Parental Rights and the Termination Trial 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ISSUES AND STANDARDS OF REVIEW 

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

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

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

ANALYSIS 

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

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

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

  1. Ineffective Assistance

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

¶35 “To prevail on an ineffective assistance of counsel claim, [Father] must show that (1) ‘counsel’s performance was deficient’ and (2) this ‘deficient performance prejudiced the defense.’” See In re C.M.R., 2020 UT App 114, ¶ 19, 473 P.3d 184 (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)); see also In re E.H., 880 P.2d 11, 13 (Utah Ct. App. 1994) (stating that parents are entitled to effective assistance of counsel in child welfare proceedings and adopting “the Strickland test to determine a claim for ineffective assistance of counsel in proceedings involving termination of parental rights”). “Because failure to establish either prong of the [Strickland] test is fatal to an ineffective assistance of counsel claim, we are free to address [Father’s] claims under either prong.” See In re C.M.R., 2020 UT App 114, ¶ 19 (cleaned up). 

¶36 Father has identified some questionable decisions on trial counsel’s part. But even if trial counsel did perform deficiently, we resolve Father’s ineffective assistance claims on the prejudice prong. 

¶37 To establish prejudice, Father “must ‘demonstrate a reasonable probability that the outcome of [his] case would have been different absent counsel’s error. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding.’” See id. ¶ 21 (quoting State v. Scott, 2020 UT 13, ¶ 43, 462 P.3d 350). In evaluating the likelihood of a different result, we “consider the totality of the evidence before the judge,” bearing in mind that “[s]ome errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect.” Strickland, 466 U.S. at 695–96. 

¶38 Father has not carried his burden of demonstrating prejudice. “To establish ineffective assistance of counsel in parental rights termination proceedings, it is imperative that a parent demonstrate deficient performance and prejudice for each ground justifying termination.” In re B.H., 2003 UT App 160U, para. 4. Thus, because the juvenile court found five statutory grounds warranting the termination of Father’s parental rights, Father must explain why the court’s finding on each ground likely would have been different but for trial counsel’s alleged deficient performance. See Utah Code Ann. § 78A-6-507(1) (LexisNexis 2018) (stating that the court may terminate parental rights upon finding “any one” ground for termination). He has not even attempted to do so. 

¶39 Instead, Father generally asserts that trial counsel’s tactics “detracted from the fact that [Father] had done everything necessary to cure the domestic violence situation found in the initial adjudication” and that trial counsel “set the stage” for the court to believe Father “doesn’t get it,” because the defense cast blame on Mother for the domestic violence incident. (Cleaned up.) But the juvenile court acknowledged that Father “spent a lot of time presenting evidence” of his continued work on services up to the time of trial, and the court gave Father credit for his progress, finding that he had “largely rehabilitated himself” by the time of trial. And apart from trial counsel’s arguments, the court had other evidence that Father did not progress in important ways. For example, the court found “the initial parenting class was not successful, even according to [Father],” and Father’s visits with the Children never progressed to unsupervised visits. What’s more, the court found that Father did not seriously engage in services in a timely manner. Father’s delay was especially problematic in this case because it had a significant destructive effect on his parent-child relationship with A.H. and prevented him from developing any parent-child relationship with N.H. 

¶40 Referring to the approximately twelve-month timeframe after a child’s removal during which a parent must show progress in changing the conduct or condition that required the removal, the court explained the importance of “removing the child from the legal limbo of State custody as soon as possible so as to provide that child with a permanent and stable home.” (Quoting In re M.L., 965 P.2d 551, 560 (Utah Ct. App. 1998).) The court further recognized the connection between “a parent’s inaction over a long period of time” and “the deterioration of the parent-child relationship during that time period.” (Quoting In re M.L., 965 P.2d at 560.) The court’s approach was consistent with Utah caselaw, which directs that “the weight which a juvenile court must give any present ability evidence is necessarily dependent on the amount of time during which the parent displayed an unwillingness or inability to improve his or her conduct and on any destructive effect the parent’s past conduct or the parent’s delay in rectifying the conduct has had on the parent’s ability to resume a parent-child relationship with the child.” See In re B.R., 2007 UT 82, ¶ 13, 171 P.3d 435 (cleaned up). In this case, even if trial counsel had done more to emphasize Father’s rehabilitation or less to emphasize Father’s rationalization of the domestic violence incident, it is unlikely that the juvenile court would have changed its view regarding the destruction of the parent-child relationships. See Utah Code Ann. § 78A-6-507(1)(e); In re M.L., 965 P.2d at 561–62 (instructing that in considering a failure of parental adjustment, the court must weigh a parent’s present ability evidence “in light of the parent’s past conduct and its debilitating effect on the parent-child relationship”). 

¶41 Father also suggests that his trial counsel’s performance was prejudicial because trial counsel elicited testimony about Father’s financial condition and Father’s earlier physical discipline of another child that “then served as grounds for termination.” But even without the testimony elicited by Father’s counsel about Father’s finances, the State introduced evidence that Father was employed yet had paid no child support since the time the Children were taken into DCFS custody. Thus, Father’s testimony may not have been helpful, but Father has not shown that without it the court was reasonably likely to find that Father had made more than token efforts to financially support the Children. See Utah Code Ann. § 78A-6-507(1)(f).7 As to Father’s physical discipline of another child, the court made a finding that this incident had occurred seven years earlier. But this finding does not appear to have played a significant role in the court’s decisions regarding the grounds for termination. The court did not mention it again and instead repeatedly emphasized the destructive effect Father’s neglect and inaction had on the Children. Given the totality of the circumstances, it is not reasonably likely that the court would have viewed Father and his relationship with the Children any differently had counsel not introduced these two pieces of evidence. 

¶42 Additionally, our own review of the record indicates that Father was not prejudiced by his trial counsel’s performance. The court understood and analyzed the facts, most of which are unchallenged on appeal. In a detailed written decision, the court carefully applied the correct law and was not misled by any confusion that trial counsel may have had. Despite Father’s strides, the court still had numerous concerns about Father, and its decision to terminate Father’s parental rights was driven largely by Father’s own untimely efforts to engage in services. 

¶43 Indeed, termination for failure of parental adjustment is well supported in the evidence. Citing Utah Code section 78A-6-507(1)(e), the court found that Father was “unable or unwilling within a reasonable time to substantially correct the circumstances, conduct or conditions that led to the placement of [the Children] outside of” his home. Although DCFS provided reasonable and appropriate reunification services to Father, Father did not take the various services seriously for almost a year. See infra ¶¶ 46–49. For example, Father did not comply with the drug-testing requirement for more than eleven months—around two months before the second permanency hearing. He also “purposely refused” multiple times to allow DCFS to inspect his home until after services were terminated. And even when DCFS “made a push to return” the Children to Father, he “showed little interest” in the attempts to reunify. Cf. In re C.Z., 2021 UT App 28, ¶ 24 (affirming the juvenile court’s conclusion that “the father’s efforts were far too little far too late” (cleaned up)). Importantly, Father’s delay caused damage to his parent-child relationships with both of the Children. 

¶44 Furthermore, Father largely ignored the court’s no-contact order with Mother, and he had “chosen to remain” in a volatile relationship with her—a relationship that involved domestic violence. Given that the Children were removed after a domestic violence incident, Father’s refusal to distance himself from Mother showed his unwillingness to correct the circumstances that led to the Children’s removal. Cf. id. ¶¶ 25–26 (“The father’s choice to remain involved with the mother—whether romantically or as a co-parent—placed the child at continued risk.”). In light of this strong evidence that Father exhibited a failure of parental adjustment, we conclude that it is unlikely that trial counsel’s performance had any impact on the court’s findings or conclusion on this ground for termination. In other words, even if counsel had performed more effectively in the ways Father identifies, it is not reasonably likely that the court would not have found at least one ground upon which to base its termination of Father’s parental rights. 

¶45 In short, our confidence in the outcome of this case is not undermined by any of trial counsel’s perceived shortcomings. Father’s claims of ineffective assistance are therefore unavailing. 

  1. Reunification Efforts

¶46 Next, Father contends that DCFS did not provide reasonable reunification services to him and that the juvenile court erred in finding to the contrary. Father asserts that despite knowing he needed help with his parenting skills given A.H.’s disabilities and N.H.’s attachment issues, DCFS did not provide additional support “until it was too late.” In particular, Father points out that the PCCIT sessions began during an extension period for reunification services and only one month before the second permanency hearing, at which the court terminated services. He further argues that DCFS’s efforts were unreasonable because its delay in providing PCCIT until he was “up against the permanency deadline” limited his success in the time allotted and “virtually assured termination of reunification services.” 

¶47 “Generally, as long as DCFS has made a fair and serious 

attempt to reunify a parent with a child prior to seeking to terminate parental rights, [DCFS] has complied with its statutory obligation.” In re A.W., 2018 UT App 217, ¶ 29, 437 P.3d 640 (cleaned up). But the process of reunification is recognized as “a two way street which requires commitment on the part of the parents, as well as the availability of services from the State.” In re K.K., 2017 UT App 58, ¶ 5, 397 P.3d 745 (per curiam) (cleaned up). Reunification services ordinarily last twelve months after a child’s removal, but the juvenile court may, under certain conditions, extend services for up to 180 days. Utah Code Ann. § 78A-6-314(6)–(7) (LexisNexis 2018). Ultimately, “reasonableness is an objective standard that depends upon a careful consideration of the facts of each individual case,” and the juvenile court thus has “broad discretion in determining whether DCFS made reasonable efforts to reunify” a parent with a child. In re K.K., 2017 UT App 58, ¶ 5 (cleaned up); accord In re A.W., 2018 UT App 217, ¶ 29. 

¶48 Here, DCFS provided numerous services to Father for more than a year, including drug testing, substance abuse treatment, psychological evaluation, domestic violence treatment, anger management classes, parenting classes, and weekly supervised visitation with the Children. The juvenile court extended these services, and it found that Father “actually engaged in the services,” knew what services needed to be completed, and “knew what was expected” of him. Yet Father, by his own fault, “took a lackadaisical approach to completing the services on time because he was relying on [Mother] to get the [C]hildren back.” The caseworker’s “[c]ajoling” at visits had “little effect” on Father. As discussed, DCFS’s provision of services is “a two way street which requires commitment on the part of the parents.” In re K.K., 2017 UT App 58, ¶ 5 (cleaned up). 

But the court found that Father “did not take reunification services seriously for nearly a year.” While DCFS’s provision of various services and attempts to help Father were reasonable, Father bore the responsibility of participating in and completing those services, and it was Father’s “lackadaisical” and belated efforts that fell short. 

¶49 Father also complains that DCFS unreasonably delayed PCCIT, especially when the juvenile court found that the therapy “could have been provided earlier.” But Father overlooks that the court also found that PCCIT “was limited because the initial parenting class was not successful, even according to [Father].” Given Father’s lack of progress in parenting class and his overall lack of timely efforts, we cannot say that DCFS’s services were unreasonable under the circumstances. We thus reject this challenge to the court’s decision. 

III. Grounds for Termination 

¶50 Finally, Father asserts that the juvenile court erred in terminating his parental rights on the ground of unfitness. He suggests that this ground is unsupported by the evidence because he had made significant progress by the time of trial and the court had returned Am.H. to his care. He also claims that the court erroneously deemed him an unfit parent when he merely failed to be a “model parent.” See generally Utah Code Ann. § 78A-6-503(4) (LexisNexis 2018) (stating that a parent’s fundamental liberty interest “does not cease to exist simply because a parent may fail to be a model parent”). 

¶51 To the extent that Father pursues a sufficiency of the evidence challenge, he has not carried his burden on appeal. Although he discusses unfitness and mentions neglect, he has not undertaken an analysis of each ground supporting the court’s termination decision. “And we will not reverse a ruling of a lower court that rests on independent alternative grounds where the appellant challenges less than all of those grounds.” In re J.M., 2020 UT App 52, ¶ 30, 463 P.3d 66 (cleaned up). 

¶52 To the extent Father believes that the court terminated his 

rights based solely on his failure to be a model parent, we are not persuaded. The court made detailed findings in support of five grounds for termination, and this case involves much more serious problems than Father’s mere failure to be a model parent. Thus, we reject Father’s challenge to the grounds for termination. 

CONCLUSION 

¶53 Father has not shown that he was prejudiced by his trial counsel’s performance, and we therefore reject his claims of ineffective assistance of counsel. Father also has not established error in the juvenile court’s decisions regarding DCFS’s reasonable efforts and the grounds for termination. Accordingly, we affirm the court’s decision terminating Father’s parental rights as to A.H. and N.H. 

 

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

 

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Do you automatically lose your kid if CPS takes you to court?

No, but if CPS or DCFS or DFS or whatever your jurisdiction calls that particular agency of the state filed an action in court to place your children in foster care and/or to terminate your parental rights, the odds are against you. If you are innocent of the charges against you (that does happen at a surprising rate, though we all need to acknowledge that there are plenty of legitimate times CPS will intervene on behalf of the child for that child protection) and you are being given the runaround (or worse, being chewed up by a bureaucratic machine that isn’t interested in the truth), lawyer up. It is all but guaranteed that you couldn’t defend yourself successfully without a good (a good) lawyer’s help.

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

https://www.quora.com/Do-you-automatically-lose-your-kid-if-CPS-takes-you-to-court/answer/Eric-Johnson-311?prompt_topic_bio=1

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2021 UT App 28 – Utah Ct. Appeals – In re C.Z.

2021 UT App 28 – THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF C.Z., A PERSON UNDER EIGHTEEN YEARS OF AGE.
M.Z., Appellant,
v.
STATE OF UTAH, Appellee.

Opinion
No. 20200227-CA
Filed March 12, 2021

Third District Court, Salt Lake Department
The Honorable Mark W. May
No. 1156353

Colleen K. Coebergh, Attorney for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem

JUDGE DIANA HAGEN authored this Opinion, in which JUDGE GREGORY K. ORME and SENIOR JUDGE KATE APPLEBY concurred.[1]

HAGEN, Judge:

¶1 M.Z. (the father) appeals the juvenile court’s termination of his parental rights to his son, C.Z. (the child). We conclude that the State proved by clear and convincing evidence that the father had not remedied the circumstances that led to the child’s removal and affirm the juvenile court’s termination of the father’s parental rights.

BACKGROUND

¶2        The child was born in May 2017.[2] In December 2017, C.Z.’s mother (the mother) was charged with aggravated assault and domestic violence in the presence of a child for stabbing the father in the chest in front of the child. At the time, the mother was already under juvenile court jurisdiction for criminal trespass and habitual truancy. The juvenile court issued a no-contact order between the mother and the father and ordered that the child be assessed as “at risk of removal” from the mother’s care.

¶3        Throughout January and February 2018, the Division of Child and Family Services (DCFS) “worked with the family in devising a safety plan for the child to remain” in the home with the mother. DCFS reported that the mother had several “thinking errors,” including her beliefs that she did not need to abide by the no-contact order, did not need therapy, and that there was no harm in smoking marijuana while breastfeeding the child. DCFS also reported that the father and mother had smoked marijuana in the presence of the child on multiple occasions, including one instance where the father was caught smoking in the mother’s family’s house, resulting in the family’s eviction. At the end of February, the mother was ordered “to be held in the Salt Lake Valley Detention Center” for a brief period.

¶4        In March 2018, DCFS again attempted to meet with the mother to establish a safety plan so the child could remain in her custody. The mother missed the meeting, and DCFS received a report that she had been smoking marijuana and had violated the no-contact order by spending the weekend with the father. As a result, the State filed a motion for the child’s expedited placement in temporary custody. At the shelter hearing, the juvenile court granted the motion, placing the child in the temporary custody of DCFS. At a follow-up hearing later that month, the court made official findings. In relation to the mother, the court found the child was “neglected” under Utah Code subsection 78A-6-105(41). In relation to the father, the court found the child was “[d]ependent” under Utah Code subsection 78A-6-105(14), meaning that the child was deemed “homeless or without proper care through no fault of the child’s parent, guardian, or custodian.”

¶5        Two months later, in May of 2018, the court held a disposition hearing to establish permanency goals for the child pursuant to Utah Code section 78A-6-312. The court determined that the child’s primary permanency goal would be “first and foremost reunification” with the parents and “the concurrent plan” would be “adoption.” The court ordered DCFS to “provide reunification services to the parents consistent with the services identified in the service plan.” The court ordered all parties to follow the service plan, which included a requirement that the parents complete domestic violence assessments. After father’s counsel raised concerns that the father would “get assessed as a perpetrator rather than a victim,” the court ordered that the plan be “amended to have the father participate in a [domestic violence] class as a victim.”

¶6        At the first child welfare review hearing in July 2018, the court authorized unsupervised visits for the father, but not for the mother, whose parent-time continued to be supervised. The caseworker noted that the parents still seemed to be spending time together and suggested couples therapy if they hoped to co-parent someday. The court lifted the no-contact order but warned the parents that it was for the purpose of domestic violence therapy only and “that doesn’t mean you drop by any time you want.” At the next child welfare review hearing, in September 2018, the court found that both parents were “doing really well” and “marching toward reunification.”

¶7        The steady progress did not continue, however. At the third child welfare review in December 2018, the court found that the mother was smoking marijuana again, the father was not following through with his therapy and, most alarming, there had been another domestic violence incident in the presence of the child on Thanksgiving Day. The parents, apparently living together again, fought about the child’s nap, and the mother hit the father in the face. He responded by pushing her away by the throat. She grabbed him by the hair and tried to prevent him from leaving. Once he got away, the father ran to a nearby school, where the responding police officer found him with a bloody nose and no shoes. The officer cited the mother as “the predominant aggressor” but allowed the father to remain in the home because, the officer later testified, the father “basically wanted to go back because he said his child was a ward of the State, that this was the only time they got to spend time with him.” The juvenile court warned both parents this was “a step back” and warned the father in particular about the domestic violence, saying, “You have to go to therapy. . . . [Y]ou’ve got to do all these things” and there is “not a lot of time left.” The court informed both parents that, if it was not safe for the child to return home by the time of the final permanency hearing, the court would have no choice but to “terminate services” toward reunification and instead move toward adoption, and “[n]obody wants to go down that road.”

¶8        The final child welfare review hearing was sixty days later, in February 2019. Report of the parents’ progress was still mixed. The State expressed ongoing concerns about the father’s ability to “hold boundaries with Mom and keep kiddo safe.” The DCFS caseworker also reported that the father’s attendance at therapy had not been consistent, although father’s counsel complained that the father still had not received enough of the type of specialized domestic violence therapy he needed as a victim. The court informed the parents that if the permanency hearing were that day, it could not return the child to them. The court warned the father, in particular, that if reunification of the child with the mother was not going to be possible, the father had better start giving “full effort” and decide, “Is this what you want?”

¶9        At the permanency hearing on March 19, 2019, the court found that “return to the home would be contrary to the welfare of the child at [that] time.” But, the court did find, by a preponderance of the evidence that there had been substantial compliance, reunification was probable within ninety days, and an extension would be in the best interest of the child. The court warned the parents that the report in ninety days had “better be a great report.”

¶10 At the continued permanency hearing on May 30, 2019, the DCFS caseworker reported that the father “had been fully engaged” and wanted reunification to continue, but the mother had “reached the point that she believe[d] that she’s not in the child’s best interest” and was ready to relinquish her parental rights voluntarily. The caseworker also expressed concern that the parents were apparently living together even though the father reported moving out of the mother’s residence several months earlier. The guardian ad litem reported that she did not feel it was safe to return the child to either parent that day. She had particular concern about the father’s “relationship with the mother.” The court gave the father one more extension, but with the following warning:

[T]here’s continued domestic violence . . . . [E]ven if [the father] is the victim, he was stabbed the first time and he went back into that relationship with his child, and then there’s been another domestic violence incident, and they’re still together . . . . He is supposed to be in treatment, and he hasn’t gone .

. . .

. . . .

Dad, you have to get in treatment. I mean that’s the bottom line. I don’t need any more excuses. You have to be in treatment. You keep going back to a toxic relationship, and if you’re going to do that, then whatever her baggage is is your baggage. That’s the way the law works.

¶11 At that final permanency hearing in August 2019, the court found that returning the child to the father would create a substantial risk of detriment to the child’s physical or emotional well-being. The court explained, “[T]he law is pretty firm and . . . at this point I can’t give another extension, and it’s not safe today to send the child home. So under the law, . . . I have to terminate reunification services, I have to change the goal to adoption.”

¶12 The State filed a petition for termination of parental rights, and the court set the matter for trial. In the interim, the mother voluntarily relinquished her parental rights.

¶13 At trial in January 2020, the State presented evidence of the father’s continued unhealthy relationship with the mother. The father’s therapist, provided by DCFS, testified that the father had “symptoms of post-traumatic stress disorder” as a result of “having been attacked by” the mother. Nevertheless, the father testified that the mother had accompanied him on the last few visits with the child, after she voluntarily relinquished her parental rights. The foster parent, who dropped off the child for visits with the father, testified that the mother was with the father at every visit in December and January. When the State asked the father why the mother went along, he answered twice that the mother “wanted to see” the child and the father had never gotten a clear answer from the case worker as to whether that was allowed. The child’s guardian ad litem asked the court to expressly order that the mother was not allowed to attend visits with the child.

¶14 In February 2020, the juvenile court entered an order terminating the father’s parental rights. Applying a clear-and-convincing-evidence standard, the court made extensive factual findings and concluded that those findings supported four statutory grounds for termination: (1) that the father had been “an unfit or incompetent parent of his child”; (2) that the child had “been cared for in an out-of-home placement under the supervision” of DCFS, the father had “substantially neglected, willfully refused, or ha[d] been unable or unwilling to remedy the circumstances that cause[d] the child to be in an out-of-home placement,” and “there [was] a substantial likelihood that the parent [would] not be capable of exercising proper and effective parental care in the near future”; (3) that there had been a failure of parental adjustment; and (4) that the father had made “only token efforts to provide support” for the child. See Utah Code Ann. § 78A-6-507(1)(c)–(f) (LexisNexis Supp. 2020). The court concluded that, “based on the totality of the evidence, it [was] in [the child’s] best interest to be adopted by the foster parents” and that it was “strictly necessary to terminate the father’s parental rights to permit that adoption.”

ISSUE AND STANDARD OF REVIEW

¶15 The father contends that the juvenile court erred in terminating his parental rights. “Whether a parent’s rights should be terminated presents a mixed question of law and fact.” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435. “The ultimate conclusion that a parent is unfit or that other grounds for termination have been established is a legal question.” In re L.M., 2019 UT App 174, ¶ 5, 453 P.3d 651 (per curiam) (cleaned up). But because “such decisions rely heavily on the juvenile court’s assessment and weighing of the facts in any given case,” that “decision should be afforded a high degree of deference.” Id. (cleaned up). Thus, we will overturn the juvenile court’s decision only when that decision is “against the clear weight of the evidence.” Id. (cleaned up). A decision is against the clear weight of the evidence when the court “either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” See In re B.R., 2007 UT 82, ¶ 12. Indeed, “an appellate court must be capable of discriminating between discomfort over a trial court’s findings of fact—which it must tolerate—and those that require a court’s intercession. It must forebear disturbing the ‘close call.’” In re Z.D., 2006 UT 54, ¶ 33, 147 P.3d 401 (cleaned up).

ANALYSIS

¶16 Utah law recognizes that “the right of a fit, competent parent to raise the parent’s child without undue government interference is a fundamental liberty interest . . . and is a fundamental public policy of this state.” In re Adoption of K.A.S., 2016 UT 55, ¶ 25, 390 P.3d 278 (cleaned up); see also Utah Code Ann. § 62A-4a-201(1)(c) (LexisNexis Supp. 2020).[3] Indeed, there is a “strong . . . presumption that it is in a child’s best interests to be in the custody of his or her natural parent.” In re J.M.V., 958 P.2d 943, 947 (Utah Ct. App. 1998). But, “parental rights are not absolute. A parent’s rights must be balanced against the state’s important interest in protecting children from harm.” In re J.A., 2018 UT App 29, ¶ 44, 424 P.3d 913 (cleaned up).

¶17 In this case, the child was adjudicated dependent as to the father in March 2018, shortly after the initial shelter hearing that placed the child in DCFS custody. Utah Code Ann. § 78A-6­105(14) (LexisNexis Supp. 2020). A determination of dependency rebuts “the presumption that the child is best served by being in the parent’s custody.” In re J.M.V., 958 P.2d at 948. But even though the parental presumption does not apply, the petitioner—in this case, the State—always has the burden to “establish the facts” justifying termination by “clear and convincing evidence.” See Utah Code Ann. § 78A-6-506(3) (LexisNexis 2018).

¶18 “To terminate parental rights, a juvenile court must make two separate findings.” In re C.T., 2018 UT App 233, ¶ 12, 438 P.3d 100 (cleaned up). First, the “court must find by clear and convincing evidence that there is at least one statutory ground for termination.” Id. (cleaned up). Second, “the court must assess what is in the child’s best interest” and determine “whether termination is strictly necessary to promote the child’s welfare and best interest.” In re B.T.B., 2020 UT 60, ¶ 76, 472 P.3d 827.

¶19 The father’s arguments on appeal are limited to challenging the first step in the juvenile court’s analysis— whether a statutory ground for termination was established by clear and convincing evidence. Where the juvenile court finds multiple grounds for termination, “we will affirm when we are able to sustain one of the grounds and need not consider the other grounds relied on by the court.” In re D.M., 2020 UT App 59, ¶ 10, 462 P.3d 1278; see also Utah Code Ann. § 78A-6-507(1) (LexisNexis Supp. 2020) (stating that “the court may terminate all parental rights with respect to the parent if the court finds any one” statutory ground).

¶20 We focus our analysis on the juvenile court’s conclusion that termination of parental rights was justified because the father failed to remedy the circumstances causing the child’s removal under Utah Code subsection 78A-6-507(1)(d) (Supp. 2020).[4] To terminate parental rights on this ground, the court must find,

(i) that the child is being cared for in an out-of-home placement under the supervision of the court or the division;

(ii) that the parent has substantially neglected, willfully refused, or has been unable or unwilling to remedy the circumstances that cause the child to be in an out-of-home placement; and

(iii) that there is a substantial likelihood that the parent will not be capable of exercising proper and effective parental care in the near future.

Utah Code Ann. § 78A-6-507(1)(d).

¶21 In this case, the child was in an out-of-home placement under the supervision of the court and DCFS. The “circumstances” that had caused the child to be placed in foster care included the child’s dependency status and the child’s exposure to domestic violence. The evidence supports the juvenile court’s finding that the father failed to remedy either of those circumstances.[5]

¶22 First, the father was unable to remedy the circumstances that led to the removal of the child based on the dependency adjudication. To remedy those circumstances, the father needed to ensure that he could provide a home and proper care for the child. See id. §§ 78A-6-105(14), -507(1)(d).

¶23 Although the father made progress at maintaining employment and ending his drug use, he bounced back and forth between living with the mother and staying at his father’s house where the conditions were unsuitable for a child. Even if the father assumed until late in the child welfare proceedings that the mother would provide the primary home for the child, the court warned him to be prepared to step up when it appeared doubtful that the child would be reunited with the mother. The court found that the father, having gone through the two previous permanency hearings, was aware that by the final permanency hearing “changes in his life had to be in place” so “that it was safe for [the child] to return to him that day.”

¶24      Despite having eighteen months to achieve such stability, the father did not have appropriate housing or a plan for childcare until three days before the final permanency hearing. Given the father’s track record, the juvenile court was skeptical about the stability of these last-minute living and childcare arrangements. “The weight which a juvenile court must give any present ability evidence is necessarily dependent on the amount of time during which the parent displayed an unwillingness or inability to improve his or her conduct.” In re B.R., 2007 UT 82, ¶ 13, 171 P.3d 435 (cleaned up). Therefore, “if a parent has demonstrated some improvement in parenting ability but not a strong likelihood that the parent can provide a proper home for the child in the very near future,” we cannot “overturn a court’s order terminating parental rights.” Id. (cleaned up). After eighteen months of services, the father had not progressed to even a single overnight visit with the child and had exhausted all possible extensions of time. The court reasonably concluded that the father’s efforts were “far too little far too late.”

¶25      Perhaps more importantly, the father failed to protect the child from exposure to domestic violence by the mother. The mother’s serious assault on the father in the presence of the child was one of the circumstances that led to the child’s removal. Despite a no-contact order, the father continued spending time with the mother, and there was another incident of domestic violence in the presence of the child on Thanksgiving Day. Even after the juvenile court terminated the mother’s parental rights, the father continued bringing her to visits with the child, placing the child in an unsafe environment.

¶26 That evidence supported the court’s finding that the father “and the mother still have an ongoing relationship” and that the father “would likely allow the mother to parent” the child. The court found that “the mother is an unfit parent” and that allowing her to parent was “of serious concern because: (a) the mother stopped participating in services; (b) the mother was the aggressor in the domestic violence incidents; (c) she had positive drug tests on the rare occasions when she chose to test; and (d) the mother voluntarily relinquished her parental rights.” The father’s choice to remain involved with the mother— whether romantically or as a co-parent—placed the child at continued risk.

¶27 The father points to evidence that he received mixed messages from the caseworker about his relationship with the mother and whether she was permitted to join him for visits with the child. But the juvenile court was “in the best position to weigh [this] conflicting testimony, to assess credibility, and from such determinations, render findings of fact.” See In re J.H., 2012 UT App 195, ¶ 2, 283 P.3d 971 (per curiam). We will not overturn the juvenile court’s determinations unless they are against the clear weight of the evidence. See In re Z.D., 2006 UT 54, ¶ 33, 147 P.3d 401. The existence of the no-contact order, as well as the court’s admonitions to the father, support the conclusion that the father had “chosen to remain with the mother” despite the danger posed to the child.

¶28      The father also argues that the juvenile court “abused its discretion in not properly evaluating [him] as a domestic violence survivor.” Specifically, the father suggests that the court employed something of a double standard and analyzed his “reactions to domestic violence perpetrated upon him differently than a female victim.” We disagree. The juvenile court ordered that the father be provided treatment as a victim and faulted the mother for the domestic violence.

¶29 We recognize that “extricating oneself from an abusive relationship can pose an extremely difficult hurdle for victims of domestic abuse,” regardless of gender. See In re L.M., 2019 UT App 174, ¶ 8, 453 P.3d 651 (per curiam). Nevertheless, we have consistently held that a juvenile court faced with a victim parent who does not leave the abusive relationship “may find that the parent has failed to remedy the circumstances that led to a child’s removal.” Id. For example, in In re T.M., we affirmed the termination of a father’s parental rights in part because he had “effectively prioritized his relationship with” his abusive spouse over the protection of his children. 2006 UT App 435, ¶ 9, 147 P.3d 529. In that case, the juvenile court found that “although [the father] completed most of the treatment plan—albeit a significant portion only in the eleventh hour, . . . he [had] been unable to quit his self-described ‘addiction’ to [the mother], and his unwillingness to give up his ongoing relationship with [the mother] . . . endanger[ed] the [c]hildren.” Id. ¶ 9. We agreed, stressing that the father’s “present and ongoing failure to detach himself from this relationship and protect the [c]hildren from exposure to [the mother was] especially significant to the court’s finding of unfitness.” Id. ¶ 19. This court has reached the same conclusion in numerous cases where the mother was the victim of domestic violence. See, e.g., In re L.M., 2019 UT App 174, ¶¶ 3, 6–7, 11 (holding that “the evidence was sufficient to support the juvenile court’s determination that [the mother] had failed to remedy the circumstances leading to [the child’s] removal” where mother did not show up to domestic violence victim therapy appointments, “had not internalized the lessons from the domestic violence therapy,” and brought [the father] to visits after his parental rights had been terminated); In re F.M., 2002 UT App 340, ¶¶ 3, 7–8, 57 P.3d 1130 (affirming termination of mother’s parental rights where evidence showed she had co­dependent relationship with abusive father, had talked about leaving father long enough to regain custody of the children and then going back to him, and then had contact with him just two weeks before the termination trial); In re G.B., 2002 UT App 270, ¶ 17, 53 P.3d 963 (affirming termination of mother’s parental rights where mother claimed she had complied with the service plan, but juvenile court found that she continued to reside in a home with the abusive father, and had no intention of separating from him); In re G.D., 894 P.2d 1278, 1280 (Utah Ct. App. 1995) (affirming termination of mother’s parental rights in part because she “failed to sever all relationships with the father within a reasonable time” and failed to “eliminate the risk of continued abuse”).

¶30 In these cases, juvenile courts are not “unnecessarily drawing negative inferences from a [victim’s] decision to maintain a relationship with the batterer.” In re C.C.W., 2019 UT App 34, ¶ 19 n.4, 440 P.3d 749. Rather, they are focusing on the well-being of the child, whose safety is of primary importance, by assessing whether the parent’s ongoing refusal to sever the relationship poses a continuing threat to the child. Domestic violence has a negative effect on a child even if the child is not the direct recipient of or witness to the violence. See id. ¶ 20, (recognizing that children in these situations learn lessons such as “that the violence toward a loved one is acceptable” and that “coercive power and violence” are “a way to influence loved ones[,]” and noting that such children “fail to grasp the full range of negative consequences for the violent behavior” (cleaned up)). “Utah case law indicates that courts have minimal empathy for parents whose strong emotional ties to their spouses or significant others jeopardize their children’s safety.” In re T.M., 2006 UT App 435, ¶ 20. Here, the juvenile court’s conclusion that the father had not remedied the circumstances that led to removal was supported by clear and convincing evidence that he was unable or unwilling to extricate himself from a relationship with the mother that was toxic and that posed an ongoing threat to the child.

¶31 In concluding that the father failed to remedy the circumstances that led to the child’s removal and would not be capable of exercising proper and effective parental care in the near future, the juvenile court noted that it “truly struggled with this decision.” It “extended reunification services twice, admittedly based on sympathy for [the father’s] circumstances as opposed to strict compliance with the statutes governing extension of services.” But permanency adjudication occurs on a strict timeline because the passage of time seriously affects the child waiting in “legal limbo.” See In re S.L., 1999 UT App 390, ¶ 42, 995 P.2d 17 (explaining that the “overarching purpose” of our child welfare laws “is to provide stability and permanency for abused and neglected children, and to end the ‘legal limbo’ of state custody as quickly as possible” (cleaned up)). And, as the juvenile court found, “[t]he length of time that [the child] has been out of the home relative to his age and the length of time that it took [the father] to . . . become stable had a significant destructive effect on their parent/child relationship.” Viewing the record as a whole, the juvenile court’s finding that the father had not remedied the circumstances that had created the out-of-home placement was not against the clear weight of the evidence.

CONCLUSION

¶32 We conclude that there was sufficient evidence to support the juvenile court’s finding under Utah Code subsection 78A-6­507(1)(d) that the father had failed to remedy the circumstances that caused the child’s out-of-home placement. This is true as to both the child’s dependency status and the risk of exposure to domestic violence. Accordingly, we affirm the juvenile court’s termination of the father’s parental rights.

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

————————————————————

[1] Senior Judge Kate Appleby sat by special assignment as authorized by law. See generally Utah R. Jud. Admin. 11-201(6).

[2] The mother and the father were not married at the time of the birth, but the father’s paternity was undisputed and officially established prior to the dependency adjudication in March 2018.

[3] Where, as here, amendments to a statute do not affect the issues in this case, we refer to the current version of the statute.

[4] Because we do not address unfitness as an alternative ground for termination, we have no need to reach the father’s argument that the juvenile court “improperly deferred to the caseworker

regarding the ultimate issue of unfitness.”

[5] In applying this provision, the juvenile court did not improperly shift the burden to the father to demonstrate his fitness as a parent. Although the parent has a responsibility to remedy the circumstances that led to removal, Utah Code Ann. § 78A-6-507(1)(d), the State has the burden of proving by clear and convincing evidence that the parent failed to do so, id. § 78A-6-506(3). The court properly applied that burden in this case.

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I know a friend on TikTok who has abusive parents. How can I report or get him help?

I know a friend on TikTok who has a lot of severe PTSD and trauma due to several incidents, and he also has abusive parents. How can I report him to child support and get help for him? 

Do you know this only from what you have witnessed through your friend’s TikTok videos? If so, you may want to approach what your TikTok friend claims with a healthy dose of skepticism. Many people seeking large followings on social media tell sensational stories to attract attention (clickbait). 

The reason I suggest you proceed with caution is because once a parent is reported to the Division of Child and Family Services (DCFS) and/or Child Protective Services (CPS) and/or the police, even if a parent or parents is/are later determined to be innocent of the accusations made against him/her/them, a stigma attaches that in many cases dogs the parent(s) for the rest of their lives. Friends and neighbors shun them, they may lose their positions as coaches and youth Sunday school teachers, they may even lose their jobs—all simply because a vindictive or bored or attention-seeking child reckless made unfounded allegations against his/her parent(s). 

If you know for a fact that a child is being abused (or you have very, very good evidence that it is more likely than not that the child is being abused or in danger of being abused), then you can (and likely should) report your observations or reasonable suspicions to DCFS, CPS, and/or the police. 

Here are some links to help you understand the child abuse and neglect reporting process in the jurisdiction where I practice family law (Utah): 

Here is what Utah’s Child Protective Services website states: 

If you suspect child abuse or neglect is occurring please call our 24/7 hotline at 1-855-323-3237 or contact your local law enforcement agency. 

Utah law requires any person who has reason to believe that a child has been subjected to abuse, neglect, or dependency to immediately notify the nearest office of Child and Family Services, a peace officer, or a law enforcement agency. Abuse, neglect, or dependency of a child can be physical, emotional, or sexual. 

Click here to learn more about the process of reporting child abuse and neglect to CPS and under what circumstances investigations are opened. 

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

https://www.quora.com/I-know-a-friend-on-TikTok-who-has-a-lot-of-severe-PTSD-and-trauma-due-to-several-incidents-and-he-also-has-abusive-parents-How-can-I-report-him-to-child-support-and-get-help-for-him/answer/Eric-Johnson-311

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What to do before a divorce, if you’re not in the wrong

What advice would you give someone before a divorce, if it’s known it may happen and you’re not in the wrong?

This is a very important question that too few people ask.

Does this sound familiar?:

  • Your spouse is making false allegations against you. No evidence to support them, yet the police and the courts and child protective services are swallowing it all.
  • You keep asking when justice will be done, when you will be vindicated.
  • You keep wondering when things would get back to “normal”.
  • In the back of your mind you are certain that one day things will indeed get back to normal
  • Odds are they won’t. Especially while your kids are minors.
  • But surely things can’t stay this crazy and out of whack forever, right?
  • Wrong.
  • Things will likely get better but will likely never “go back to normal.”
  • We don’t blame you for thinking we’re exaggerating. The idea that innocence counts for next to nothing is unthinkable. Too terrible to believe. As is the idea that people can slander you with impunity while the police and the courts stand by and either let it happen or even it help it happen. Believe it. It’s true.
  • No really, it’s true.
  • The words of this real divorced spouse and parent sum things up concisely and accurately: I kept wondering when things would get back to normal. I soon realized through brutal experience that it never will, as long as I have kids with my ex that are minors. Or if I am ever around my alone (meaning no other witness could confirm her false claims are exactly that, false). I can’t ever go back to life as it was before divorce. My rose colored glasses are broken forever, The days of not worrying about someone making things up to punish me in divorce or criminal court or DCFS are no more. The “child-like faith” I once had in our legal system is lost for all time, never to return.
  • You can deny it all you want, but it will do you and your kids no good and only lead to more harm and being victimized more, if you bury your head in the sand or in the clouds. That will only add repeated and more severe injury to what started out as insult.
  • We know what you are hoping for, and you’re not there yet. You likely won’t be for much longer time than you think is realistic or fair.
  • Will the day soon come when you can stop worrying about protecting yourself from false allegations or complaints from your ex? No.
  • In fact, that day may never come.
  • We know people for whom it’s been years, in some cases more than a decade, and still, to this day the ex cannot be trusted to be decent.
  • You have to cautious and careful in the event that the snake that bit you once (or dozens of times) before might try to bite you again.
  • We know it’s exhausting and actually driving you near insane (we really do).
  • But you must stay vigilant.
  • You must stay classy. And stay frosty. You must. It’s either stay frosty, stay classy, or be crushed. Crushed emotionally, financially, etc.
  • An ounce of prevention truly is worth several hundred or several thousand pounds of cure.
  • We understand you’re not happy about this.
  • Still, knowing is half the battle. Forewarned is forearmed.
  • Staying blissfully ignorant won’t do you any good and can do you permanent damage.
  • Divorce and false claims of child and spousal and substance abuse, etc. are more prevalent than you think because nobody wants to believe it will happen to them. And those who are victimized are often too embarrassed and depressed to talk openly and honestly about it. Can you blame them?
  • That’s it. No easy solutions. No cheap assurances. But ignore this information, warnings, and protective measures at your peril.

Hang in there. Heed this crucial advice: “If you’re going through hell, keep going.” – Winston Churchill

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

https://www.quora.com/What-advice-would-you-give-someone-before-a-divorce-if-it-s-known-it-may-happen-and-you-re-not-in-the-wrong/answer/Eric-Johnson-311

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2020 UT App 35 – V.M. v. Division of Child and Family Services

2020 UT App 35 THE UTAH COURT OF APPEALS

V.M., Appellant,
v.
DIVISION OF CHILD AND FAMILY SERVICES, Appellee.

Opinion
No. 20180906-CA
Filed March 5, 2020
Fourth District Juvenile Court, Provo Department
The Honorable Brent H. Bartholomew
No. 1155142
Andrew G. Deiss and John Robinson Jr., Attorneys for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Attorneys for Appellee

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

POHLMAN, Judge:

¶1        V.M. appeals the juvenile court’s order substantiating a finding of the Division of Child and Family Services (DCFS) that V.M. sexually abused a child. We affirm.

BACKGROUND

¶2        In 2015, a minor child (Child) alleged that V.M., her brother-in-law, sexually abused her. The State charged V.M. with aggravated sexual abuse of a child. The criminal case went to trial and resulted in an acquittal.

¶3        Separately from the criminal case, DCFS conducted an investigation into the allegation against V.M. As a result of that investigation, DCFS made and entered a supported finding against V.M. for sexual abuse of a child. See Utah Code Ann. § 62A-4a-101(41) (LexisNexis 2018) (“‘Supported’ means a finding by the division based on the evidence available at the completion of an investigation that there is a reasonable basis to conclude that abuse, neglect, or dependency occurred.”).

¶4        Although a copy of the agency’s decision was sent to V.M.’s last known address, V.M. never received it. Instead, he discovered it in 2017 when he underwent a background check. He requested an administrative hearing on the matter. After an internal review, DCFS upheld its supported finding of sexual abuse of a child.

¶5        V.M. then initiated the present action in juvenile court, seeking judicial review of DCFS’s decision. See generally id. § 63G-4-402(1)(a)(iii) (2016) (explaining that juvenile courts have jurisdiction over all state agency actions relating to “substantiated findings of abuse or neglect made by the Division of Child and Family Services”); id. § 78A-6-323(1)(a) (2018) (providing that upon the filing of a petition by DCFS “or any interested person” informing the court “that the division has made a supported finding that a person committed a severe type of child abuse or neglect,” the juvenile court shall, among other things, “make a finding of substantiated, unsubstantiated, or without merit”).

¶6        The juvenile court held a two-day trial in September 2018. At the beginning of the trial, DCFS announced its intention to play the video of Child’s forensic interview, and it indicated its understanding that V.M. would play the audio of Child’s testimony at his criminal trial and then Child would testify in the juvenile court. When the juvenile court asked whether that procedure was acceptable, V.M. indicated that it was “fine with [him].” The trial then proceeded in that fashion.

¶7        While the audio of Child’s trial testimony played, V.M. observed that the “quality [of the audio] is a little hard” and offered to provide a transcript for the juvenile court and others to use for “follow[ing] along” with the audio. V.M. then moved to admit the transcript of Child’s trial testimony, and the court granted the motion.

¶8        When Child testified in the juvenile court, she said that she remembered her forensic interview and testifying at V.M.’s criminal trial. When asked whether she remembered the specifics of her statements during the forensic interview, Child responded, “Not the specifics, but like vaguely. I just remember I was just nervous, and I just told everything I knew.” When DCFS asked Child whether she told the truth in the forensic interview and at the criminal trial, Child responded affirmatively. In the juvenile court proceedings, however, Child did not independently testify about the abuse.

¶9        Child’s mother testified, as did an employee of Brigham Young University (BYU) responsible for investigating allegations of sexual misconduct involving students. The employee testified that based on his investigation of V.M., who was a BYU student at the time of the alleged abuse, there was insufficient evidence to find that V.M. had violated BYU’s policies on sexual misconduct and child protection.

¶10      On the second day of trial in juvenile court, V.M. asked to telephone his next witness: the individual (Forensic Interviewer) who conducted the forensic interview of Child. When the court reached Forensic Interviewer by phone, she said that she was unavailable to testify. V.M. then proposed that the court read Forensic Interviewer’s testimony from V.M.’s criminal trial, telling the court, “[E]verything that you need is in the transcript.” The juvenile court admitted the transcript of that testimony into evidence. At V.M.’s request, the court also admitted the transcripts of his ex-wife’s testimony from his criminal trial. Additionally, V.M. played the audio recording of a conversation between Child and her parents. V.M. also asked for and received the admission of a transcript of that conversation; the transcript of Child’s aunt’s testimony at the criminal trial; and two declarations from the aunt, which, V.M. asserted, had bearing on Child’s “reputation for truthfulness.” Finally, V.M. testified before the juvenile court and denied abusing Child.

¶11 After trial, the juvenile court entered a written order. It found, based on a preponderance of the evidence, that when Child was eleven years old and visiting the home of her sister and V.M., V.M. sexually abused Child.[1]

¶12 The juvenile court found that shortly after the abuse, Child’s parents spoke with Child to find out what had happened. The court found that the parents’ inquiry, which they recorded, “was innocently done and did not taint the evidence later presented by [Child].”

¶13      The juvenile court further found that Child’s parents also arranged for Child to talk to a professional experienced in working with victims of sexual abuse. Once or twice before the interview with Forensic Interviewer, Child spoke with the professional because Child was “uneasy about talking about what [V.M.] had done to her.” The juvenile court found that the purpose of these conversations was for “strength and support” and “not for coaching [Child] on what to say” to Forensic Interviewer.

¶14      The juvenile court also found that no one had told Child “what to say” during the forensic interview. The adults in Child’s life “all encouraged [Child] to tell the truth about the incident” with V.M., and the court found that Child did in fact tell the truth.

¶15 Indeed, the juvenile court found that Child’s testimony at the criminal trial and in the forensic interview was “believable and credible.” According to the court, Child was “detailed in her description” of the abuse and she “was certain that [V.M.] was her abuser.” Child had “no motive to accuse” V.M. To the contrary, Child “found it difficult to comprehend that [V.M.] would knowingly touch her inappropriately” and even suggested that V.M. “might have been sleepwalking or not feeling well” when he abused her. The court also found that Child “displayed discomfort” in describing the abuse, did “not blurt out a rehearsed story,” and did not “appear to have been coached on what to say.”

¶16 The court further found that Forensic Interviewer “used proper protocol” in conducting the forensic interview of Child. In so finding, the court relied on the video of the forensic interview and Forensic Interviewer’s testimony given at the criminal trial. The court noted that Forensic Interviewer’s testimony was “credible.”

¶17 The juvenile court’s written order also included its conclusions of law. It began by explaining that DCFS had the burden to prove, by a preponderance of the evidence, that abuse or neglect occurred and that V.M. was substantially responsible for that abuse or neglect. See generally Utah Code Ann. § 62A-4a-1009(5)(a) (LexisNexis 2018). The court gave “little to no weight” to the fact that criminal charges against V.M. ultimately were dismissed and expunged, noting that the preponderance of the evidence standard applicable in the juvenile court proceeding is “lower than the beyond a reasonable doubt evidentiary standard used in the district court’s criminal trial.”

¶18 Similarly, the court gave “little weight” to the BYU investigation because it was “conducted for a different purpose” than the DCFS investigation and because the BYU investigator considered only information provided by V.M. The court noted that it had the “advantage” over the BYU investigator of “hearing directly from and meeting with [Child] through her testimony in court during the juvenile court trial.”

¶19 As a result of its findings of fact and conclusions of law, the juvenile court substantiated DCFS’s finding against V.M. for sexual abuse of a child. See id. § 62A-4a-101(39). The court accordingly dismissed V.M.’s petition. V.M. appeals.

ANALYSIS

¶20 On a petition informing the court “that the division has made a supported finding that a person committed a severe type of child abuse or neglect as defined in Section 62A-4a-1002,” the juvenile court shall, among other things, “make a finding of substantiated, unsubstantiated, or without merit.”[2] Utah Code Ann. § 78A-6-323(1)(a) (LexisNexis 2018); see also id. § 63G-4-402 (2016) (explaining that juvenile courts have jurisdiction over all state agency actions relating to “substantiated findings of abuse or neglect made by the Division of Child and Family Services”). During the proceeding on such a petition, the juvenile court reviews DCFS’s finding “by trial de novo,” id. § 63G-4-402(1)(a), and DCFS has “the burden of proving, by a preponderance of the evidence, that abuse, neglect, or dependency occurred and that the alleged perpetrator was substantially responsible for the abuse or neglect that occurred,” id. § 62A-4a-1009(5)(a) (2018).

¶21 The preponderance of the evidence standard generally “requires the proponent of a contested fact to demonstrate that its existence is more likely than not.” Harken Sw. Corp. v. Board of Oil, Gas & Mining, 920 P.2d 1176, 1182 (Utah 1996); see also Alvarado v. Tucker, 268 P.2d 986, 988 (Utah 1954) (defining preponderance of the evidence as the “greater weight of the evidence” in favor of the prevailing party). This standard of proof is lower than the beyond a reasonable doubt standard applicable to criminal defendants. See Egbert v. Nissan N. Am., Inc., 2007 UT 64, ¶ 12, 167 P.3d 1058; In re L.N., 2004 UT App 120, ¶ 8 n.2, 91 P.3d 836.

¶22 On appeal, V.M. contends that the juvenile court committed an error of law in (A) relying on the paper transcript of Child’s testimony from his criminal trial to determine the credibility of Child’s story and (B) relying on the transcript of Forensic Interviewer’s trial testimony to determine that Forensic Interviewer was credible. According to V.M., “it’s black letter law that credibility can only be determined from live testimony” and “[c]redibility simply cannot be determined from a cold transcript.” Because the juvenile court used both transcripts when deciding that Child’s allegations of abuse were substantiated, V.M. asserts that “a single error of law—the court’s mistaken premise that paper transcripts could be used for credibility—infected the [juvenile court’s] entire decision.”

A

¶23 With regard to Child—whose “testimony at trial and the [forensic] interview” the juvenile court found to be “believable and credible”—V.M. contends that because Child “did not tell her story” of the abuse to the juvenile court, the court improperly relied on the transcript of her testimony from V.M.’s criminal trial to find Child credible. V.M. argues that live testimony was essential to the court’s credibility assessment because the court could not assess Child’s credibility without observing her demeanor. We reject V.M.’s argument both because the juvenile court relied on more than just the transcript of Child’s trial testimony and because we do not agree that paper transcripts can never be used in evaluating a witness’s credibility.

¶24 First, to aid its assessment of Child’s credibility, the juvenile court was able to observe Child’s demeanor in a handful of ways. Specifically, the court listened to the audio recording of Child’s trial testimony and it relied on the transcript—at V.M.’s urging—to follow along. By listening to the audio recording, the court could hear Child’s tone of voice and how she responded to questioning, both of which could factor into its assessment of her credibility.[3] The court also watched Child’s forensic interview, and by doing so, it could observe Child’s outward demeanor as she described the abuse. Finally, Child testified before the juvenile court, and although she did not independently testify about the abuse during that testimony, the juvenile court could still take stock of Child’s general characteristics as a witness and compare them with her forensic interview and the transcript of her testimony during the criminal trial. Cf. In re M.A.V., 736 P.2d 1031, 1033 n.1 (Utah Ct. App. 1987) (noting that where a judge had “heard [a witness’s deposition] testimony ‘live’” and “had seen and heard from” the witness at two other hearings, the “court accordingly had more opportunity to take the measure of [the witness] and evaluate his credibility, demeanor, and attitude than would ordinarily occur where a deposition transcript had to be relied upon”).

¶25 Because the court had before it the video of Child’s forensic interview as well as the audio and transcript of Child’s testimony at the criminal trial, a recording of her conversation with her parents, and Child’s in-person testimony,[4] we reject the premise of V.M.’s argument: that the court relied solely on “a cold transcript” in crediting her allegations of abuse.

¶26      Second, we agree with V.M. that the “‘importance of live testimony to a credibility determination is well recognized and longstanding.’” (Quoting Oshodi v. Holder, 729 F.3d 883, 891 (9th Cir. 2013).) It is one of the reasons “credibility determinations are within the province of the district court judge,” who is best positioned to make factual findings based on oral testimony “due to his or her opportunity to view the witnesses firsthand, to assess their demeanor, and to consider their testimonies in the context of the proceedings as a whole.” Meyer v. Aposhian, 2016 UT App 47, ¶ 13, 369 P.3d 1284 (cleaned up); see also Utah R. Civ. P. 52(a)(4) (“Findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the credibility of the witnesses.”); Henshaw v. Henshaw, 2012 UT App 56, ¶¶ 11–12, 271 P.3d 837 (explaining that trial courts are “better equipped to make credibility determinations based on conflicting oral evidence than an appellate court that has access only to the cold record”).

¶27 Yet V.M. has not persuaded us that black letter law prohibits fact-finders in all circumstances from considering transcripts in making credibility determinations.[5] After all, “factors other than demeanor and inflection go into the decision whether or not to believe a witness.” Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985). “Documents or objective evidence may contradict the witness’ story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it.” Id.; see also Jackson v. United States, 353 F.2d 862, 866 (D.C. Cir. 1965) (“Credibility involves more than demeanor. It apprehends the overall evaluation of testimony in light of its rationality or internal consistency and the manner in which it hangs together with other evidence.” (cleaned up)); cf. Smith v. Freeman, 902 N.E.2d 1069, 1075 (Ill. 2009) (“It is a common practice for a judge, and even a jury, to make credibility determinations based on transcripts of testimony.”). And as we regularly instruct our juries, factors such as personal interest, bias, knowledge, memory, consistency, and reasonableness can aid a factfinder in the assessment of a witness’s credibility. See Model Utah Jury Instructions 2d CV121 (2018); see also id. CR207.

¶28 Thus, while we readily agree that viewing a witness firsthand is generally a superior way to evaluate his or her credibility, and while we do not question the value of live testimony, we cannot say that fact-finders are necessarily barred from using a cold transcript to evaluate a witness’s credibility in all circumstances. We therefore reject the premise of V.M.’s assertion of error on appeal—that paper transcripts could not be used to judge credibility as a matter of law. And particularly here, where V.M. invited the court to consider Child’s trial testimony,[6] we cannot conclude that the court committed legal error by considering the transcript along with the other evidence to determine that Child’s allegations were credible.

B

¶29 V.M. likewise assails the juvenile court’s reliance on the transcript of Forensic Interviewer’s testimony at his criminal trial. As compared to Child, the juvenile court had less opportunity to view Forensic Interviewer’s demeanor. But it had the transcript of her testimony from the criminal trial, it had the opportunity to view her demeanor by watching the forensic interview she conducted, and it could compare the interview with Forensic Interviewer’s testimony about it. Thus, although the court depended largely on the transcript to assess Forensic Interviewer’s credibility, its assessment was not strictly based on the transcript alone.

¶30 Still, even if the juvenile court had relied only on the transcript to judge Forensic Interviewer’s credibility, that is exactly what V.M. invited the court to do. An alleged error is invited when an appellant encourages the court to take the action he later challenges on appeal, and we will not reverse a court’s decision under such circumstances. See State v. McNeil, 2016 UT 3, ¶ 17, 365 P.3d 699; Pratt v. Nelson, 2007 UT 41, ¶ 17, 164 P.3d 366. When Forensic Interviewer was unable to testify, V.M. suggested that the court read her testimony, including cross-examination, from V.M.’s criminal trial. Though V.M. claims that he “never affirmatively invited the court to use paper transcripts for credibility determinations,” he told the court, without limitation, that “everything that [it] need[s] is in the transcript.” V.M. has not explained what he expected the court to do with Forensic Interviewer’s testimony if not assess her credibility on some level. By introducing the transcript and inviting the court to consider her testimony in evaluating the case, V.M. affirmatively and necessarily led the court to assess Forensic Interviewer’s credibility without personally observing her demeanor. We therefore cannot fault the juvenile court for its use of Forensic Interviewer’s transcript.

¶31      Further, even if V.M. did not invite this alleged error, he has not shown he was harmed by the court’s assessment of Forensic Interviewer’s credibility in the absence of in-person testimony. See Utah R. Civ. P. 61 (“The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”); see also Utah R. Juv. P. 2(c) (“In substantiation proceedings, the procedure set forth in U.C.A. 63G-4-402(2) shall apply.”); Utah Code Ann. § 63G-4-402(2)(b) (LexisNexis 2016) (explaining that substantiation proceedings are “governed by the Utah Rules of Civil Procedure”). V.M. states that Forensic Interviewer’s “credibility was never at issue in this case,” and he has not persuasively argued that had the juvenile court observed Forensic Interviewer’s demeanor and live testimony firsthand, its assessment of her credibility and the result of this proceeding would have been any different.

CONCLUSION

¶32 V.M. has not shown legal error in the juvenile court’s evaluation of the evidence in this case. Accordingly, we affirm its substantiation of DCFS’s finding against V.M. for sexual abuse of a child.

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

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[1] Because the details of the abuse are not relevant to the issues on appeal, we do not repeat them here.

[2] “‘Substantiated’ or ‘substantiation’ means a judicial finding based on a preponderance of the evidence that abuse or neglect occurred.” Utah Code Ann. § 62A-4a-101(39) (LexisNexis 2018). “Unsubstantiated,” in contrast, “means a judicial finding that there is insufficient evidence to conclude that abuse or neglect occurred.” Id. § 62A-4a-101(44). And “without merit” includes a judicial finding “that the alleged abuse, neglect, or dependency did not occur, or that the alleged perpetrator was not responsible for the abuse, neglect, or dependency.” Id. § 62A-4a-101(46).

[3] V.M. also played for the court an audio recording of Child discussing the abuse with her parents.

[4] V.M. does not challenge the admission of any evidence, including the transcripts or the video. Nor does he complain that the court listened, at his urging, to the audio recording.

[5] 5. To the contrary, Utah law permits the use of transcripts at trial in some scenarios. For instance, the Utah Rules of Civil Procedure allow, under certain conditions, the use of depositions in court proceedings “for any purpose.” Utah R. Civ. P. 32(a)(2), (3); see also id. R. 32(e) (“Except as otherwise directed by the court, a party offering deposition testimony pursuant to this rule may offer it in stenographic or nonstenographic form, but, if in nonstenographic form, the party shall also provide the court with a transcript of the portions so offered.”). And the Utah Rules of Evidence allow, under certain conditions when a witness is unavailable, the admission of testimony that “was given as a witness at a trial, hearing, or lawful deposition.” Utah R. Evid. 804(a), (b)(1) (setting forth when former testimony is not excluded by the rule against hearsay). Neither one of these rules suggests that credibility determinations from such non-live testimony are impossible. Indeed, when V.M. advised the court that he would be seeking to admit transcripts of the criminal trial testimony of his ex-wife and Child’s aunt due to their unavailability, the court noted its ability to assess their credibility through means other than observing their demeanor.

[6] Given that a jury had acquitted V.M. based on the testimony that Child gave at the criminal trial, V.M. may have, for strategic reasons, preferred that the juvenile court consider Child’s trial testimony rather than see Child testify to the details of the abuse in person.

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2019 UT App 208 – In re E.R. – termination of parental rights

2019 UT App 208 – THE UTAH COURT OF APPEALS

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

Opinion
No. 20190184-CA
Filed December 19, 2019

Fourth District Juvenile Court, Provo Department
The Honorable F. Richards Smith
No. 1012098

Margaret P. Lindsay, Attorney for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem

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

CHRISTIANSEN FORSTER, Judge:

¶1            J.R. (Mother) appeals the juvenile court’s termination of her parental rights to E.R. We affirm.

BACKGROUND

¶2            The Division of Child and Family Services (DCFS) has been involved with Mother and her family on and off since 2008. Between 2008 and Mother’s termination trial in 2018, DCFS made multiple supported findings of environmental neglect against both Mother and her husband (Father) with respect to their three children, as well as findings of emotional maltreatment, emotional abuse, domestic-violence abuse, and physical abuse against Father.

¶3            E.R. is the youngest of Mother’s three children and was eleven years old at the time of Mother’s termination trial. E.R. “has been diagnosed with behavioral and emotional dysregulation, secondary post-traumatic stress disorder (PTSD), mood disorder and Asperger’s.” E.R. has severe behavioral problems, including aggression and suicidal ideation.

¶4            Mother and Father divorced in 2013. “The current case was initiated in January 2016 when DCFS supported a finding of dependency against the parents as to” E.R. after he was hospitalized twice in the course of a month. The Utah State Hospital accepted E.R. for admission but eventually withdrew its placement offer after Father refused to consent to his hospitalization. Subsequently, DCFS sought and obtained a warrant to take E.R. into protective custody. The juvenile court awarded legal custody and guardianship of E.R. to DCFS and set concurrent goals for E.R. of reunification with Mother or permanent custody and guardianship with a relative.[1] DCFS first placed E.R. at the Utah State Hospital and later placed him with a foster family. On November 30, 2016, the court terminated reunification services after finding that neither parent was in substantial compliance with the reunification plan. The court then “set a primary goal of adoption with a concurrent goal of permanent custody and guardianship.” On September 28, 2017, the State filed a petition to terminate Mother’s and Father’s parental rights, which was later bifurcated. The court terminated Father’s parental rights following a trial in March 2018.

¶5            Mother’s termination trial was held in August and November 2018, following which the court terminated Mother’s parental rights. The court found that Mother had made “some progress” in therapy but that she “continues to minimize her own issues and the role she played in the difficulties in her home.” The court attributed her progress “partly to her years of treatment, and partly to the fact that she has not been parenting [E.R.] for the last three years.” It further found that although E.R. and Mother are bonded and have had appropriate contact in their bi-weekly visits, Mother “does not possess the skills needed to effectively parent [E.R.] over time.” The court found grounds for termination based on its determination that Mother is “an unfit or incompetent parent,” that there had “been a failure of parental adjustment,” and that Mother had not remedied the circumstances causing E.R. to be in an out-of-home placement and was unlikely to be capable of exercising proper parental care in the future. See Utah Code Ann. § 78A-6-507(1)(c)–(e) (LexisNexis 2018).

¶6            The court found that E.R. had made “significant progress” through the “intense treatment he received at the State Hospital,” “ongoing treatment,” and the skills and efforts of his foster family. It found that E.R. was “bonded with his mother, and desires to have ongoing contact with her,” and that the “foster parents are supportive of appropriate ongoing contact between [E.R.] and his now-adult siblings, and between [E.R.] and his mother, and have encouraged such contact.” The court believed that “[i]f the foster parents were to adopt [E.R.,] they would continue to support that contact as long as it is healthy for [E.R.] and in his best interest.”

¶7            The court found that it was in E.R.’s best interest to be adopted by the foster parents. It observed that E.R. “has a particular aversion to anything court related” and that court proceedings cause him significant distress. For this reason, the court determined that E.R. “has a significant need for stability in his placement” and that awarding permanent custody and guardianship to the foster parents, rather than terminating Mother’s rights and permitting him to be adopted, “would be detrimental to [him], and deny him the sense of permanency and stability that he so desperately needs.” The court therefore determined that terminating Mother’s parental rights was strictly necessary to further E.R.’s best interest. Mother now appeals the court’s termination decision.

ISSUE AND STANDARD OF REVIEW

¶8            “The ultimate decision about whether to terminate a parent’s rights presents a mixed question of law and fact.” In re B.T.B., 2018 UT App 157, ¶ 8, 436 P.3d 206 (quotation simplified), cert. granted, 440 P.3d 692 (Utah 2019). We review the court’s factual findings for clear error and its legal conclusions for correctness, “affording the court some discretion in applying the law to the facts.” Id. (quotation simplified). Ultimately, due to “the factually intense nature” of a termination decision, “the juvenile court’s decision should be afforded a high degree of deference,” and we should overturn it only if the result is “against the clear weight of the evidence” or leaves us “with a firm and definite conviction that a mistake has been made.”[2] In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435 (quotation simplified).

ANALYSIS

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

¶10 “[A] parent’s right to raise her child is a fundamental right, and although courts must view the ‘best interest’ element from the perspective of the child, in so doing courts should not forget the constitutional dimension of the parental rights on the other side of the ledger.” Id. ¶ 55. “[A]s part of the ‘best interest’ analysis required by the second element of the two-part test, along with all of the other facts and circumstances relevant to the case, trial courts should analyze whether termination of a child’s parent’s rights is ‘strictly necessary.’” Id. ¶ 50; see also Utah Code Ann. § 78A-6-507 (LexisNexis 2018) (“Subject to the protections and requirements of Section 78A-6-503, and if the court finds strictly necessary, the court may terminate all parental rights with respect to a parent if the court finds any one of the following [statutory factors] . . . .” (emphasis added)). An assessment of whether termination is strictly necessary “requires courts to explore whether other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights.” In re B.T.B., 2018 UT App 157, ¶ 55. “[I]f there is a practical way to keep parents involved in the children’s lives that is not contrary to the children’s best interests, a court should seriously consider such an option.” Id. “After this consideration, if a juvenile court determines that no such alternatives are available or articulates supported reasons for rejecting alternatives that do exist, such findings are entitled to deference on appeal.” In re C.T., 2018 UT App 233, ¶ 16, 438 P.3d 100.

¶11 Mother asserts that the court did not adequately explore the feasibility of granting permanent custody and guardianship to the foster parents while permitting her to continue having visitation rights. First, she points to the court’s observation that “the only issue before the Court in this matter is whether parental rights should be terminated” and that “[q]uestions of . . . potential permanent custody and guardianship . . . are not even before the Court at this time.” Mother contends that this statement demonstrates that the juvenile court misunderstood its duty to examine the feasibility of alternatives to termination. However, in context, it is clear that the court was merely explaining its inability to make a final ruling on other options at the time of the termination trial. The court further clarified, “[C]ertainly if parental rights are not terminated, it does not mean an automatic change in status. In fact, all it means is status quo until further decision by the Court. . . . I just didn’t want anyone to have false expectations regarding the outcome of this trial either way.” And the court’s written findings ultimately did address the feasibility of alternatives in the context of its best interest analysis.

¶12 The court found that E.R. is an autistic child with significant behavioral issues. He “has been diagnosed with behavioral and emotional dysregulation, secondary post-traumatic stress disorder (PTSD), mood disorder and Asperger’s.” His behavioral issues require his foster parents to “respond to [his] emotional dysregulation . . . , sometimes multiple times a day, and help him work through it, get back to rational thinking, and avoid escalation.” The court found that E.R. was “weary” of “DCFS and court involvement” and that “[p]articipation in court proceedings of any kind causes him distress, to the point that he doesn’t even want to be aware of when court hearings will occur.” The court found that E.R. “needs the stability and peace that would come with closure of the DCFS case and a permanent end to court involvement.” In light of E.R.’s specific needs and his aversion to court involvement, the court concluded, “[E.R.] has a significant need for stability in his placement. He needs to know where he’s going to stay, and who will be his permanent caretaker.” The court further concluded that “[a]warding permanent custody and guardianship of [E.R.] to his foster parents . . . would leave open the specter of repeated court involvement in the form of orders to show cause, motions, hearings, and so forth, related to visitation compliance issues, visitation modification requests, etc.” and that this would be “detrimental to [E.R.], and deny him the sense of permanency and stability that he so desperately needs.”

¶13 Mother challenges these findings, asserting that E.R. would not need to be told about future court proceedings and that it was by no means certain that further court proceedings would actually occur once an order of guardianship and visitation was entered. But Mother’s challenges do not demonstrate that the juvenile court’s findings were against the clear weight of the evidence. Having examined the specific circumstances of this case and the individual needs of E.R., the court concluded that even the “specter” of future court involvement was detrimental to E.R. And even if a concerted effort were made to shield E.R. from knowledge about court dates, there is no guarantee that such efforts would be successful, especially if a contentious order to show cause or petition to modify were filed in the future. See In re J.P., 921 P.2d 1012, 1019 (Utah Ct. App. 1996) (discussing the nature of permanent guardianship and its lack of finality).

¶14 Although we have previously made it clear that the need for permanency “does not, by itself, establish that termination is in a particular child’s best interest,” In re D.R.A., 2011 UT App 397, ¶ 14, 266 P.3d 844, the court’s emphasis of E.R.’s need for permanency in this case was reasonable. The court did not rely on the general desirability of permanency but on E.R.’s personal need for permanency in light of his significant psychological issues and his particular aversion to anything court-related. These articulated reasons for rejecting the feasibility of permanent guardianship were supported by the evidence and are entitled to deference. See In re C.T., 2018 UT App 233, ¶ 16. Thus, we decline to disturb the juvenile court’s finding that termination of Mother’s parental rights was in E.R.’s best interest.

CONCLUSION

¶15 The juvenile court adequately examined the feasibility of alternatives to terminating Mother’s parental rights in assessing E.R.’s best interest, and its finding that termination was strictly necessary was not against the clear weight of the evidence. Accordingly, we affirm the juvenile court’s termination of Mother’s parental rights.

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[1] E.R.’s two older siblings continued to reside with Mother until they were removed in October 2016 as a result of several incidents of abuse and neglect by Mother.

[2] 2. Mother challenges this standard of review, asserting that appellate courts should take a more active role in examining the correctness of a juvenile court’s decision regarding termination of parental rights in light of the important constitutional rights involved. She asserts that the “standard of review that has developed over time in termination of parental rights cases is so
deferential to the decision of the juvenile courts that . . . no longer do these decisions concern mixed questions” and that the standard of review “takes any responsibility and power in these mixed questions of law and fact away from the appellate court and affords total power and discretion to the individual juvenile courts around the State.” Mother urges us to reexamine the correct “spectrum of deference” for parental termination cases in light of the factors outlined by our supreme court in State v. Levin, 2006 UT 50, 144 P.3d 1096. Id. ¶¶ 25, 28.

However, we are not in a position to overturn the supreme court’s articulated standard of review, see State v. Tenorio, 2007 UT App 92, ¶ 9, 156 P.3d 854 (“Vertical stare decisis compels a court to follow strictly the decisions rendered by a higher court.” (quotation simplified)), which instructs us to afford the juvenile court’s termination decision “a high degree of deference,” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435. Moreover, we have previously rejected the assertion that due process requires a more stringent standard of review in termination cases, In re S.Y.T., 2011 UT App 407, ¶¶ 31–37, 267 P.3d 930, reaffirming the principle that the juvenile court’s superior opportunity to make witness-credibility determinations entitles it to a high degree of deference and that we should overturn termination decisions only “if the clear weight of that evidence is against the juvenile court’s determination,” id. ¶¶ 36–37.

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In re L.M. – 2019 UT App 174 – reasonable reunification services

2019 UT App 174
THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF L.M., A PERSON UNDER EIGHTEEN YEARS OF AGE.

A.M., Appellant  v. STATE OF UTAH, Appellee

Per Curiam Opinion
No. 20190657-CA
Filed October 31, 2019

Third District Juvenile Court, Salt Lake Department
The Honorable Susan Eisenman
No. 1150593

Julie George, Attorney for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem

Before JUDGES GREGORY K. ORME, and MICHELE M. CHRISTIANSEN FORSTER, and RYAN M. HARRIS.

PER CURIAM:

¶1        A.M. (Mother) appeals the juvenile court’s order terminating her parental rights in her child, L.M. Mother’s petition on appeal is unfocused and fails to actually state an issue for review, although it is clear that Mother disagrees with the juvenile court’s order. Generously read, Mother challenges the finding that the Division of Child and Family Services (DCFS) provided reasonable reunification services and the sufficiency of the evidence supporting grounds for termination.

¶2        “Trial courts are 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 K.F., 2009 UT 4, ¶ 52, 201 P.3d 985. Accordingly, “juvenile courts have broad discretion in determining whether reasonable reunification efforts were made.” Id.

¶3        Here, reunification services began with a domestic violence assessment. The assessment concluded that Mother was in “extreme danger” from Father “and recommended ten sessions of domestic violence victim treatment.” DCFS referred Mother for this treatment, as recommended by the assessment, but it took Mother five months to complete the classes because she “frequently” missed them. DCFS also brought in its domestic violence specialist to consult on the case. The specialist was involved throughout the case, “participated in team meetings and provided additional support and resources for [Mother] as a victim of domestic violence.” After Mother completed the domestic violence treatment program, DCFS referred her to individual therapy.

¶4        Based upon the record before us, we cannot say that the juvenile court abused its discretion in finding that DCFS provided reasonable reunification services to Mother. The services were tailored to remedy the issues that led to Child’s removal and give Mother the opportunity to address the domestic violence issues in this case. First, to the extent that “more intensive services” may have been helpful to Mother, Mother’s own dishonesty regarding her ongoing involvement with Father prevented DCFS from recognizing any arguable need for additional services during the reunification period. In any event, the domestic violence services provided to Mother were extensive and included a domestic violence assessment, a domestic violence course, individual therapy, and the ongoing services of a domestic violence specialist. These services were “at the level suggested by the experts” who conducted Mother’s domestic violence assessment and were clearly aimed at alleviating “the myriad psychological, social, and economic constraints that undermine abused women’s efforts to leave their abusers and protect their children from exposure to domestic violence.” See In re C.C., 2017 UT App 134, ¶ 47, 402 P.3d 17 (Christiansen, J., concurring). That Mother did not succeed in breaking free from an abusive relationship is unfortunate, but cannot reasonably be attributed to a lack of appropriate services.

¶5        Mother next asserts that the evidence was insufficient to establish grounds for termination. Whether a parent’s rights should be terminated is a mixed question of law and fact. In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435. The ultimate conclusion that a parent is unfit or that other grounds for termination have been established is a legal question, “but such decisions rely heavily on the juvenile court’s assessment and weighing of the facts in any given case.” Id. Because of the factually intense nature of parental termination proceedings, “the juvenile court’s decision should be afforded a high degree of deference.” Id. Accordingly, to overturn a juvenile court’s decision, the decision must be “against the clear weight of the evidence.” Id. “When a foundation for the [juvenile] court’s decision exists in the evidence, an appellate court may not engage in a reweighing of the evidence.” Id.

¶6 The juvenile court found multiple grounds for termination of Mother’s parental rights. See Utah Code § 78A-6­507(1) (LexisNexis 2018) (listing grounds for termination of parental rights). A finding of any single ground is sufficient to support termination of parental rights. Id. Among the grounds found by the juvenile court was that Mother had failed to remedy the circumstances leading to the removal of Child. Id. § 78A-6-507(1)(d). The juvenile court may terminate a parent’s rights if it finds

that the child is being cared for in an out-of-home placement under the supervision of the court or the [DCFS]; that the parent has substantially neglected, willfully refused, or has been unable or unwilling to remedy the circumstances that cause the child to be in an out-of-home placement; and that there is a substantial likelihood that the parent will not be capable of exercising proper and effective parental care in the near future. Id.

¶7        Here, the evidence was sufficient to support the juvenile court’s determination that Mother had failed to remedy the circumstances leading to Child’s removal. Mother lost custody of Child primarily due to domestic violence concerns and Child was in a DCFS supervised placement. Although Mother completed a domestic violence class of ten sessions over several months and had access to a domestic violence specialist as a further resource, Mother did not successfully address the pattern of domestic violence with Father.

¶8 A parent who maintains a relationship with an abusive partner jeopardizes a child’s safety. See In re C.C.W., 2019 UT App 34, ¶ 20, 440 P.3d 749 (“[A] parent’s acts of domestic violence [towards another parent] can have adverse impacts on a child, even if that child is not the direct object of such violence, and even if the child does not directly witness the violence.”). As such, the continuation of an abusive relationship can therefore be a factor supporting termination of parental rights. In re T.M., 2006 UT App 435, ¶ 20, 147 P.3d 529. While extricating oneself from an abusive relationship can pose an extremely difficult hurdle for victims of domestic abuse, if a parent does not successfully leave the relationship, the juvenile court may find that the parent has failed to remedy the circumstances that led to a child’s removal.

¶9        It has been observed that Utah law has not always accounted for the difficulty faced by domestic violence victims in these circumstances, often blaming victims for the abuse they have suffered without acknowledging that adequate resources may not have been offered to a victim to enable that victim to address the problem. In re C.C., 2017 UT App 134, ¶¶ 46–48, 402 P.3d 17 (Christiansen, J., concurring). However, that is not the case here. As discussed above, DCFS provided extensive services to Mother specifically aimed at helping her to break out of the cycle of domestic violence. But, despite these services, Mother was unable to remedy the circumstances that led to Child’s removal.

¶10 Over the course of more than one year of reunification services, Mother deceived DCFS regarding her contact and status with Father, even as she was participating in the domestic violence classes. At times, Mother reported that Father was abusive, and asserted that he kidnapped her at one point during the case. She denied having contact with Father and said she was done with him. On the other hand, Mother told her psychological evaluator that Father had not hurt her and denied ever reporting that he did.

¶11 At other times, Mother acknowledged that the relationship was ongoing and at one point requested couples therapy. She said that she and Father had not actually separated and intended to stay together. Mother even brought Father to visits with Child although Father did not have visitation rights. When Mother was close to having Child for an extended unsupervised visit, she brought Father with her and lied about his identity to her caseworker, knowing that contact with Father was not allowed. Based on Mother’s continued contact with Father and her deception, the juvenile court concluded that Mother had not internalized the lessons from the domestic violence therapy and still presented a risk to Child because she could not protect Child from the abusive situation posed by Father.

¶12     Additionally, the same evidence supports that there was a

substantial likelihood that Mother would not be able to exercise proper and effective parental care in the near future. After a year of services, Mother had not progressed in her ability to protect Child from harm. And Mother’s lack of credibility resulted in little weight being given to her assertions at trial that she had severed her ties with Father. The concerns for Child’s safety remained the same and Mother would require substantially more time to demonstrate that she would be able to protect Child. In sum, the evidence supported the juvenile court’s finding of grounds for termination pursuant to Utah Code section 78A-6-507(1)(d).

¶13 Affirmed.

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In re C.R.C. – 2019 UT App 153 – termination of parental rights

In re C.R.C. – 2019 UT App 153 – THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF C.R.C., A PERSON UNDER EIGHTEEN YEARS OF AGE. S.C. AND D.C.,
Appellants,
v.
STATE OF UTAH,
Appellee.

Opinion
Nos. 20190233-CA and 20190234-CA
Filed September 19, 2019
Eighth District Juvenile Court, Vernal Department
The Honorable Ryan B. Evershed
No. 1142757

Emily Adams and Jeffry K. Ross, Attorneys for Appellant S.C.
Erin Bradley, Attorney for Appellant D.C.
Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem

JUDGE KATE APPLEBY authored this Opinion, in which JUDGES RYAN M. HARRIS and DIANA HAGEN concurred.

APPLEBY, Judge:

¶1        S.C. (Mother) and D.C. (Father) (collectively, Parents) appeal the juvenile court’s termination of their parental rights as to C.R.C. (Child).[1] Mother argues that insufficient evidence supported the juvenile court’s determination that grounds existed to terminate her rights. Parents also argue that terminating their rights is not in Child’s best interest. We affirm.

BACKGROUND

¶2 In early 2017, police discovered that Father had downloaded hundreds of photographs and videos of child pornography. Many of the images involved children as young as newborns and toddlers. Father admitted to downloading the images and was arrested. He has been incarcerated since. Police informed Mother of the allegations against Father and warned her that Child, who was born shortly after Father’s arrest, was not safe around him. Mother was advised to seek a protective order for Child against Father, but she never sought one. Police eventually obtained an ex parte protective order on Child’s behalf. The protective order prohibited Father from having contact with Child unless the visit was supervised by the Division of Child and Family Services (DCFS). Despite this court order, Mother took Child to the prison to see Father. This incident was reported to DCFS and Mother was reminded not to allow contact between Child and Father.

¶3        In March 2017, Father was temporarily released from jail to obtain a psychosexual evaluation. Mother asked if Father could see Child during his release, but DCFS again instructed her not to allow contact between them. Mother ignored these instructions and allowed Father to spend “unfettered and unsupervised” time with Child. Mother told DCFS she permitted the contact because Father was not a risk to Child. After this incident came to light, DCFS removed Child from Mother’s custody and Child was placed in foster care.

¶4        While Child was in foster care, Mother was required to complete a reunification plan (Plan), which included, among other things, (1) establishing safe and stable housing for herself and Child, (2) maintaining contact with her caseworker so she could have parent time with Child, (3) completing a parental fitness evaluation, (4) completing a parenting class and working with a “peer parent,” and (5) complying with the no-contact order by preventing Father from contacting Child.

¶5        In accordance with the Plan, Mother sought a parental fitness evaluation. But the juvenile court concluded that she was unable to complete it because she “could not understand many of the questions, even when they were read to her” and that the “evaluation raised many concerns regarding Mother’s ability to adequately parent” Child. The evaluation report concluded that Mother has an intelligence quotient “in the extremely low range of intellectual classification” and that Mother has an overall intellectual capacity of a ten- or eleven-year-old child. But the court noted that Mother improved her housework and parenting skills after attending behavioral therapy. Overall, the court concluded that Mother could not be a successful parent without “maintaining firm boundaries and obtaining a support system.”

¶6        Mother attempted to obtain an adequate support system. First, she identified her own mother (Grandmother) as a potential supervisor. Grandmother participated in a parental fitness evaluation, but this demonstrated that she, too, suffered from serious intellectual deficiencies. The court found that Grandmother and Mother frequently undermined each other and that Grandmother had a boyfriend who could not pass a background check. The court concluded that Grandmother was an inappropriate supervisor for Mother and Child. Next, Mother identified her father (Grandfather) as a potential supervisor. Grandfather resided in Colorado and therefore was not an option as a long-term supervisor. Finally, Mother identified a friend (Friend) as a potential supervisor. Friend agreed to supervise Mother’s parent-time with Child and Friend was found to be an adequate supervisor. Friend testified that the get-togethers went well. Friend began attending family team meetings with Mother and provided her support “in many ways.”

¶7        But in early 2018, Friend discovered that Mother had been dishonest with DCFS regarding her contact with Father and became concerned about Child’s safety. At trial, Friend’s daughter testified that she was driving with Mother one day and asked Mother whether she had any overnights planned with Child. Mother responded, “[N]o, I think [DCFS personnel] know if I had overnights then I would call [Grandfather] to come get us and I would leave with them.” Mother added that she “couldn’t wait until she had her family back together” and she wanted to have “more kids” with Father. After this, Friend stopped providing support to Mother. The court concluded that Mother was never able to establish the long-term support system she needed to be reunited with Child.

¶8        Mother’s parental fitness evaluation report also noted Mother struggled to maintain firm boundaries and observed that this made her “an easy target to be taken advantage of due to her [intellectual] difficulties.” Friend reported to DCFS that Mother had “significant secret contact with Father in prison.” DCFS asked Mother about this and Mother “adamantly denied any contact” and expressed her desire to divorce Father because any contact would be harmful to Child. Nevertheless, Mother continued to contact Father. In September 2017, a caseworker again asked Mother if she had spoken with Father, and Mother said she had not. But in the two months following this conversation, Mother spoke with Father on the telephone for 443 minutes and deposited $632 in his prison account. After this, Mother met with a caseworker and again denied having any contact with Father. That same day, Mother had a 27-minute phone call with him. At a family team meeting several months later, Mother stated she had no contact with Father even though she made four separate phone calls to Father that day for a total of 58 minutes. From the first time Mother told her caseworker she had no contact with Father until the family team meeting, Mother had 428 phone calls with Father and deposited $2,358 in his prison account. At another family team meeting, Mother was again warned not to have any contact with Father. Between that time and the permanency placement hearing one month later, Mother spoke to Father on the telephone 32 times for a total of 307 minutes. Over the next several months, Mother had 16 in-person prison visits with Father, had approximately 650 phone conversations with him, and deposited $1,135 in his prison account.

¶9        The court found Mother’s continual contact with Father “very concerning” on many levels because “Father [was] a danger to [Child] and Mother was made aware of this.” It stated, “Mother has demonstrated that she is committed to Father and does not believe he is a risk to [Child]” and has “demonstrated that she will be deceitful with DCFS and the Court in an attempt to continue the relationship.” Mother and Father were also “aware that ongoing contact between the two of them undermined Mother’s potential for success.” Based on the court’s many concerns, it concluded that Mother would not be able to protect Child from Father or other potential abusers. It also found that Mother was “an easy target to be taken advantage of” and that Child was an “easy target[] for abuse and neglect if Mother is the sole caretaker.” The parental fitness evaluation report also described Mother as “unwilling” to stay away from Father and stated that she “made the conscious decision to continue contact with [him] knowing it would be detrimental to her success.”

¶10 At the termination trial, the court concluded that Mother made significant progress on the Plan by keeping in contact with her caseworker and seeing Child on a regular basis, obtaining a parental fitness evaluation, completing the parenting class, complying with the peer-parenting program, and establishing housing. But it concluded that she “was never able to complete the goals of the Plan by providing an appropriate home for [Child] where [Child] would be safe from abuse and neglect.” In point of fact, the court was concerned with Mother’s continual contact with Father, her belief that he was not a threat to Child, and her lack of a support system.

¶11      The juvenile court found that several grounds supported terminating Parents’ parental rights. First, it concluded that they were “unwilling or unable to avoid their parental incompetence” and neglect. It found that Father was incarcerated as a result of multiple felony convictions and that the sentence was long enough that Child would be deprived of a normal home for more than one year. Further, the fact that Father was convicted for possessing child pornography indicated his unfitness to provide adequate care to Child. It also found that Mother suffered “from an emotional illness, mental illness, or mental deficiency” that rendered “her unable to care for the immediate and continuing physical or emotional needs of [Child] for extended periods of time.” While Mother “may be able to complete up to ninety percent of the parenting required to take care of [Child],” “[Child] is not safe with [Mother] on a long­term basis without ongoing support from a third party” and “[n]o ongoing third party support was ever established.” Finally, the court found that Mother had failed to make parental adjustment[2] and was unwilling or unable to remedy the circumstances that led to Child being placed in foster care.

¶12 Next, the court determined that terminating Parents’ rights was in Child’s best interest. It found that Child was placed in foster care before she was two months old and was never returned to Mother’s care.[3] Also, Mother never reached the point where she was allowed overnight parent time during the reunification period. When Child was placed in foster care she was “very dirty,” looked “extremely sick and underweight,” and was diagnosed with failure to thrive.

¶13 Conversely, the court found that Child’s foster parents “have provided the care and stability that she never received while under the care of [Mother].” Child was “part of a permanent foster family where the parents have been married for almost 16 years, have successfully raised other children,” have “lived in the same area for years,” and have expressed a willingness to adopt Child. Further, Child and her foster parents “developed bonds of love and affection for one another.” Child has “thrived in the foster parents’ home” and “has made remarkable strides . . . both emotionally and physically.” The court stated that there “is no comparison [between] the two homes as far as parenting ability.” Child’s foster parents “significantly altered their lives to care for [Child]” and “have taken multiple steps to improve [Child’s] life and ability to function in society.” The court compared these efforts to those of Parents, who were “unwilling or unable to do the same.” Ultimately, the court concluded that Child is “settled” in the foster parents’ home, she has stronger emotional ties with them than she does with Parents, and moving her from that home would be detrimental to Child’s well-being. The court noted Mother’s “respectable effort to adjust her circumstances,” but found it was not enough to consider it in Child’s best interest to return Child to her. Ultimately, the court concluded that it was strictly necessary to terminate Parents’ rights and that adoption was in Child’s best interest because it would satisfy her need for safety, stability, and permanency.

¶14      Parents appeal.

ISSUES AND STANDARDS OF REVIEW

¶15 Parents raise two main issues on appeal. First, Mother contends insufficient evidence supports the juvenile court’s finding that statutory grounds existed to terminate her parental rights.[4] “We apply a clearly erroneous standard in determining whether the juvenile court’s findings are based upon sufficient evidence.” In re A.W., 2018 UT App 217, ¶ 23, 437 P.3d 640 (quotation simplified). Under this standard, we will not overturn the court’s determination unless the result is “against the clear weight of the evidence” or leaves us “with a firm and definite conviction that a mistake has been made.” In re B.T.B., 2018 UT App 157, ¶ 8, 436 P.3d 206 (quotation simplified), cert. granted, 440 P.3d 692 (Utah 2019).

¶16 Second, Parents argue that insufficient evidence supports the juvenile court’s determination that it was in Child’s best interest to terminate their parental rights. “Due to the factually intense nature of the analysis, a [juvenile] court’s final decision regarding termination of parental rights should be afforded a high degree of deference,” and this court will overturn a termination decision only when the result is “against the clear weight of the evidence” or leaves us “with a firm and definite conviction that a mistake has been made.” Id. (quotation simplified).

ANALYSIS

¶17      “To terminate parental rights, a juvenile court must make two separate findings.” In re C.T., 2018 UT App 233, ¶ 12, 438 P.3d 100 (quotation simplified). First, the court must find “that there is at least one statutory ground for termination.” Id. (quotation simplified); see also Utah Code Ann. § 78A-6-507 (LexisNexis 2018). “Second, a court must find that termination of the parent’s rights is in the best interests of the child.” In re C.T., 2018 UT App 233, ¶ 12 (quotation simplified).

¶18      Mother argues that the juvenile court erred in terminating her parental rights because there was insufficient evidence to support a finding that there are statutory grounds for termination. Parents also argue that termination was not in Child’s best interest. We address each issue in turn.

I. Grounds for Termination

¶19      Mother argues that the evidence presented at trial did not support the grounds the juvenile court found for terminating her rights. We disagree. A court may terminate parental rights on any one of the grounds articulated in Utah Code section 78A-6-507. “Among other things, a juvenile court may terminate parental rights if the court finds that a parent has either abandoned a child, neglected a child, or is an unfit or incompetent parent.” In re A.W., 2018 UT App 217, ¶ 35, 437 P.3d 640 (quotation simplified). Further, “when a foundation for such findings exists in the evidence, we do not engage in” reweighing the evidence on appeal. Id. (quotation simplified).

¶20      The juvenile court terminated Mother’s parental rights on several grounds. First, it found Mother was unwilling or unable to remedy her parental incompetence and neglect. See Utah Code Ann. § 78A-6-507(1)(b)–(c) (LexisNexis 2018). Second, it found that Child was being cared for in an “out-of-home placement under the supervision of the court” and Mother had “substantially neglected, willfully refused, or ha[d] been unable or unwilling to remedy the circumstances that cause[d] [Child] to be in an out-of-home placement; and . . . there is a substantial likelihood that [Mother] will not be capable of exercising proper and effective parental care in the near future.” See id. § 78A-6-507(1)(d). Finally, the court found Mother failed to make her parental adjustment. See id. § 78A-6-507(e).

¶21      We conclude that a sufficient foundation exists for each of the grounds the court relied on to terminate Mother’s parental rights. With respect to neglect and incompetence, the court found that Mother suffers from “emotional illness, mental illness, or mental deficiency . . . that renders [her] unable to care for the immediate and continuing physical or emotional needs of [Child] for extended periods of time.” See id. § 78A-6-508(2)(a) (Supp. 2019). Specifically, the court found that although Mother may be able to complete a majority of the tasks necessary to care for Child, Child “is not safe with [Mother] on a long-term basis without ongoing support from a third party” and a third-party caregiver was never established. Here, the court relied on the evidence that, without a support system, Mother’s mental deficiencies rendered her unable to adequately care for Child and protect her from Father. The court also found that Mother demonstrated that she valued her relationship with Father above caring for and protecting Child. The court and the parental evaluation report concluded that Mother had the ability to refrain from contacting Father and to focus on reuniting with Child, but she continued to express her desire to reunite with Father and contacted him almost daily. We conclude that this evidence provides sufficient support for the court’s finding that Mother was unwilling or unable to remedy her parental incompetence and neglect.

¶22 The court also found that Mother refused to remedy the circumstances that caused Child to be in an out-of-home placement and failed to meet the Plan’s goals. The court noted that this case was initiated because “Father has a perverse and unhealthy sexual attraction to young children and Mother was unwilling to protect [Child] from Father.” However, Mother maintained throughout the juvenile court proceedings, and on appeal, that Father is not a threat to Child and attempts to downplay her contact with Father. Mother continues to argue that she was never told, nor was it part of the Plan, that she could not be in contact with Father. The court found this argument unpersuasive and concluded, “[T]he issue of contact with Father was both implicitly and explicitly prohibited. But more importantly, Mother should know better, she should not have to be told that contact with Father, making plans to get back with Father, and reconstruct[ing] the family after he gets out of prison is a terrible and dangerous idea for [Child].” It found Mother was aware that she should not have contact with Father through her numerous discussions with DCFS, her family team, and the court. A DCFS caseworker testified that Mother “was aware from the beginning that her ongoing contact with Father would interfere with successful reunification.” Mother also demonstrated she was aware of the restriction by repeatedly lying to DCFS and others about her contact with Father.

¶23 Ultimately, the court found sufficient evidence supporting the grounds for termination. Mother failed to appreciate the risk Father posed to Child, routinely expressed her interest in reuniting with him after he got out of prison, and consistently lied about her contact with him. The extent of Mother’s contact with Father demonstrated to the court that she valued her relationship with him over establishing a support system to regain custody of Child. The court found that Mother was unable or unwilling to remedy the situation that caused Child to be placed in foster care and was unable or unwilling to remedy her parental incompetence and neglect. We conclude that ample evidence supports these findings.

II. Best Interest of Child

¶24      Parents argue that terminating their parental rights is not in Child’s best interest. We disagree. When considering terminating parental rights, a court must consider whether “termination is strictly necessary to the best interest of the child.” In re C.T., 2018 UT App 233, ¶ 12, 438 P.3d 100 (quotation simplified); see also Utah Code Ann. § 78A-6-507(1) (LexisNexis Supp. 2019). For termination to be “strictly necessary,” the court must find it “absolutely essential” after examining “all of the relevant facts and circumstances surrounding the child’s situation” and “whether other feasible options exist that could address the specific problems or issues facing the family.” In re C.T., 2018 UT App 233, ¶ 14 (quoting In re B.T.B., 2018 UT App 157, ¶¶ 52–55, 436 P.3d 206, cert. granted, 440 P.3d 692 (Utah 2019)). But “a trial court’s final decision regarding termination of parental rights should be afforded a high degree of deference,” and this court will overturn a termination decision only when the result is “against the clear weight of the evidence” or leaves us “with a firm and definite conviction that a mistake has been made.” In re B.T.B., 2018 UT App 157, ¶ 8 (quotation simplified).

¶25      Father argues that terminating his parental rights is not in Child’s best interest because his child pornography possession does not make him a danger to her. But possessing child pornography is prima facie evidence of unfitness.[5] Utah Code Ann. § 78A-6-508(7)(a) (LexisNexis Supp. 2019). Father failed to demonstrate to the court why he should be considered a fit parent and why it was not in Child’s best interest to terminate his rights.[6] We conclude that the juvenile court did not err in concluding that it was in Child’s best interest to terminate Father’s rights.

¶26      Mother also argues that it was not in Child’s best interest to terminate her parental rights. Again, the court did not err in concluding this was in Child’s best interest. The court found that it was strictly necessary to terminate Mother’s rights after it weighed the safety, stability, and permanency that Child received from her foster parents, who planned on adopting her, against Mother’s unwillingness and inability to remedy her situation preventing her from taking care of Child. The court found that Child had bonded with her foster family and did not have a “great connection” with Mother. It also found that although “Mother ha[d] made a respectable effort to adjust her circumstances, conduct[,] and condition, she ha[d] not done so to a degree sufficient to make it in Child’s best interest to return her to her care.” As a result, the court found it “strictly necessary” to terminate Mother’s parental rights.

¶27 The court also considered other placement options for Child, “including placement with a family member, guardianship with foster parents[,] and returning [Child] to Mother,” but “no option satisfie[d] [Child’s] need for safety, stability and permanency more than adoption” by her foster parents. The court found that DCFS made “reasonable efforts to provide reunification services” to Mother. Specifically, the court found that DCFS complied with the Americans with Disabilities Act and accommodated Mother’s intellectual disability, helped her obtain disability insurance, gave her travel assistance for exercising parent time with Child, helped her with the peer-parenting program, and directly supervised and assisted her with parent time. The court ruled that Mother “was able to avail herself” of these services and that her “failure in this case” was not for lack of services “but a result of her dishonesty, her unwillingness to maintain boundaries for the benefit of [Child], her unwillingness to separate herself from Father, and her inability to obtain an ongoing support [system] for herself and [Child].” We conclude the court did not err in finding that it was in Child’s best interest to terminate Mother’s parental rights.

CONCLUSION

¶28 The evidence was sufficient to support a finding that grounds existed to terminate Mother’s parental rights. Further, the juvenile court did not err in finding that terminating Parents’ parental rights was in Child’s best interest. Affirmed.

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[1] Father filed a separate appeal but did not file an opening brief and instead joined in Mother’s brief. We therefore resolve both cases together in this opinion.

[2] “‘Failure of parental adjustment’ means that a parent or parents are unable or unwilling within a reasonable time to substantially correct the circumstances, conduct, or conditions that led to placement of their child outside of their home, notwithstanding reasonable and appropriate efforts made by the Division of Child and Family Services to return the child to that home.” See Utah Code Ann. § 78A-6-502(2) (LexisNexis 2018).

[3] Child has never lived with Father; he has been incarcerated since before her birth.

[4] Father concedes statutory grounds existed to terminate his rights under Utah Code section 78A-6-508(2)(e) because he is “incarcerated as a result of conviction of a felony, and the sentence is of such length that [Child] will be deprived of a normal home for more than one year.” See Utah Code Ann. § 78A-6-508(2)(e) (LexisNexis Supp. 2019).

[5] Utah Code section 78A-6-508(7)(a) articulates that sexual abuse or exploitation is prima facie evidence of unfitness. “Sexual exploitation” is defined as, among other things, “engaging in any conduct that would constitute an offense under Section 76-5b-201, sexual exploitation of a minor, regardless of whether the individual who engages in the conduct is actually charged with, or convicted of, the offense.” Utah Code Ann. § 78A-6-105(52)(c) (LexisNexis Supp. 2019). Sexual exploitation of a minor includes knowingly possessing child pornography. Id. § 76-5b-201(1). Father was charged with ten counts of sexual exploitation of a minor in 2017.

[6] Reunification was never set as a goal for Father because he “pled guilty to several felony charges of sexual exploitation of a minor.” Father does not challenge this finding on appeal.

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Can CPS take your kids for missing two dental appointments?

Can child protective services take your kids for missing two dental appointments?

Yes (and well they should), if the dental appointments are necessary to protect the child from disfigurement, from death or serious risk of death or harm, from superfluous damage to the child’s health, or from chronic pain. You get the idea.

But a failure to go to the dentist for an optional bi-annual cleaning or the like? No way, unless (maybe) somehow that was ordered by a juvenile court judge and the parents just blew it off.

Just remember: often what CPS claims is crucial to a child’s protection is just CPS throwing its weight around and using the power of the state to bully parents who have the nerve to hold opinions different from the caseworkers’. Pick your battles, but don’t let CPS push you around for exercising your parental judgment responsibly.

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

https://www.quora.com/Can-child-protective-services-take-your-kids-for-missing-two-dental-appointments/answer/Eric-Johnson-311

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

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