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Tag: juvenile court

House Bill 193 (HB0198 (utah.gov))

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

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

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

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

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H.B. 20 “Parental Rights Amendments”

Today’s blog post treats House Bill 20, one of several proposed family law-related pieces of legislation for the 2024 Utah legislative session.

H.B. 20 is entitled “Parental Rights Amendments”

According the bill’s own “General Description,” this bill:

  • addresses the voluntary relinquishment of parental rights.
  • clarifies the requirements and procedure for an individual to consent to the termination of parental rights or voluntarily relinquish parental rights.

Utah Code Sections Affected (if passed): It would amend Utah Code § 80-4-307

Here is the proposed text:

24          80-4-307. Voluntary relinquishment — Irrevocable.
25          (1) The individual consenting to termination of parental rights or voluntarily

26     relinquishing parental rights shall sign [or confirm] the consent or relinquishment, or confirm a
27     consent or relinquishment previously signed by the individual, under oath before:
28          (a) a judge of any court that has jurisdiction over proceedings for termination of
29     parental rights in this state or any other state, or a public officer appointed by that court for the
30     purpose of taking consents or relinquishments; or
31          (b) except as provided in Subsection (2), any person authorized to take consents or
32     relinquishments under Subsections 78B-6-124(1) and (2).
33          (2) Only the juvenile court is authorized to take consents or relinquishments from a
34     parent who has any child who is in the custody of a state agency or who has a child who is
35     otherwise under the jurisdiction of the juvenile court.
36          (3) (a) The court, appointed officer, or other authorized person shall certify to the best
37     of that person’s information and belief that the individual executing the consent or
38     relinquishment, or confirming a consent or relinquishment previously signed by the individual,
39     has read and understands the consent or relinquishment and has signed the consent or
40     relinquishment freely and voluntarily.
41          (b) A consent or relinquishment is not effective until the consent or relinquishment is
42     certified pursuant to Subsection (3)(a).
43          (4) [A voluntary relinquishment or consent for termination of parental rights is
44     effective when the voluntary relinquishment or consent is signed and may not be revoked.A
45     consent or relinquishment that has been certified pursuant to Subsection (3)(a) is effective
46     against the consenting or relinquishing individual and may not be revoked.
47          (5) (a) The requirements and processes described in Section 80-4-104, Sections
48     80-4-301 through 80-4-304, and Part 2, Petition for Termination of Parental Rights, do not
49     apply to a voluntary relinquishment or consent for termination of parental rights.
50          (b) When determining voluntary relinquishment or consent for termination of parental
51     rights, the juvenile court need only find that the relinquishment or termination is in the child’s
52     best interest.
53          (6) (a) There is a presumption that voluntary relinquishment or consent for termination
54     of parental rights is not in the child’s best interest where it appears to the juvenile court that the
55     primary purpose for relinquishment or consent for termination is to avoid a financial support
56     obligation.

57          (b) The presumption described in Subsection (6)(a) may be rebutted if the juvenile
58     court finds the relinquishment or consent to termination of parental rights will facilitate the
59     establishment of stability and permanency for the child.
60          (7) Upon granting a voluntary relinquishment the juvenile court may make orders
61     relating to the child’s care and welfare that the juvenile court considers to be in the child’s best
62     interest.

The main reason for H.B. 20 is the questions that the recent Utah Court of Appeals case of State in Interest of A.G. (2022 UT App 126) raised about it. In that case,

4

Infants

Statute outlining steps for voluntary relinquishment of parental rights requires relinquishing parent to sign a document effectuating the relinquishment and if no such document is signed by the parent, the relinquishment is incomplete and ineffective. Utah Code Ann. § 80-4-307.

The Utah Court of Appeals described the issue this way:

¶1 This case requires us to determine whether, under the language of the governing statute [§ 80-4-307], parents who intend to relinquish their parental rights in connection with a child welfare proceeding may effectuate that relinquishment under oath orally in court, without ever signing anything, or whether they must at some point sign a document effectuating that relinquishment.

¶2 In this case, S.A. (Mother)—while under oath—told the juvenile court that she wanted to relinquish her parental rights to A.G., J.K., and D.K. (collectively, the Children), and that she was doing so knowingly and voluntarily. Relying on those sworn representations, the court accepted Mother’s relinquishment, and later entered an order terminating Mother’s parental rights. But Mother did not sign any document indicating that she was relinquishing her rights, and on that basis she challenged her relinquishment as incomplete and invalid. The juvenile court rejected that challenge, interpreting the governing statute as allowing relinquishment, under certain circumstances, without a signed document from the parent.

¶3 Mother now appeals that determination, asserting that the juvenile court’s interpretation of the governing statute was incorrect. We agree with Mother that the statute requires the relinquishing parent to—at some point—sign a document effectuating the relinquishment. Accordingly, we reverse the termination order and remand this case for further proceedings.

In describing the requirements of § 80-4-307, the court stated:

[T]to summarize, all relinquishments regarding children “in the custody of a state agency” or “under the jurisdiction of the juvenile court” must involve a juvenile court judge. See id. § 80-4-307(2). A parent who is relinquishing rights to any such children must “sign or confirm the consent or relinquishment under oath before” that judge. Id. § 80-4-307(1). The judge, in turn, must “certify to the best of [his or her] information and belief” that the parent who is “executing the consent or relinquishment” understands it and has “signed [it] freely and voluntarily.” Id. § 80-4-307(3). And the relinquishment “is effective when the voluntary relinquishment or consent is signed.” Id. § 80-4-307(4).

In its concluding paragraph, the Utah Court of Appeals stated:

CONCLUSION

¶25 The statute at issue here requires a person relinquishing parental rights to—at some point—sign a document effectuating the relinquishment. Even though Mother appeared in court and, under oath, indicated her willingness to relinquish her parental rights, she never signed a document to that effect. Accordingly, her relinquishment did not become effective, and the juvenile court erred by declining to set aside that nascent relinquishment and by proceeding to terminate her parental rights. We therefore reverse the juvenile court’s termination order and remand the case for further proceedings, which may include a rescheduled termination trial.

H.B. 20 was proposed to prevent future confusion by parents, attorneys, and judges in the future when confronting questions of whether a parent does in fact voluntarily relinquishment of parental rights.

Is H.B.20 a good idea, then? Yes, yes it is.

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

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In re J.T. – 2023 UT App 157

2023 UT App 157

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF J.T. AND A.T.,

PERSONS UNDER EIGHTEEN YEARS OF AGE.

F.R.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20220623-CA

Filed December 21, 2023

First District Juvenile Court, Brigham City Department

The Honorable Bryan Galloway

Nos. 1051672 and 1210454

Christopher A. Beins, Attorney for Appellant

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

Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE JOHN D. LUTHY authored this Opinion, in which

JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.

LUTHY, Judge:

¶1        After minor children J.T. and A.T. were removed from the custody of their mother (Mother), their grandmother, F.R. (Grandmother), moved to intervene in the child welfare proceeding. The juvenile court ultimately denied Grandmother’s motion, and she appeals. We conclude that Grandmother should have been allowed to intervene but only as a limited-purpose party based on her statutory right to request preferential consideration for temporary placement of the children. We therefore reverse the juvenile court’s ruling on Grandmother’s intervention motion and remand this matter for proceedings consistent with this opinion.

BACKGROUND

¶2        J.T. and A.T. share the same mother but have different fathers. J.T.’s father passed away before the proceedings commenced. In 2021, J.T. turned eleven and A.T. turned eight. As of the time of the events relevant to this appeal, A.T.’s father was subject to an order that prohibited him from contacting A.T.

¶3        Grandmother is the children’s maternal grandmother. In September 2021, she filed a petition in the district court for the appointment of a guardian for J.T. In her petition, Grandmother alleged that Mother was “unwilling or unable to exercise her parental rights,” and Grandmother requested that she, Grandmother, be appointed as J.T.’s guardian.

¶4        The district court ordered Mother and Grandmother to mediation. The mediation resulted in a stipulation, filed in January 2022, under which Mother and Grandmother agreed for J.T., Mother, and Grandmother to each be evaluated by a therapist and to then “abide by the appointed therapist’s recommendations as a temporary order” until final resolution of the guardianship case. Under the stipulation, Mother and Grandmother were “required to cooperate in good faith and follow through with the requests made by the appointed therapist.”

¶5        Thereafter, the Division of Child and Family Services (DCFS) received repeated referrals raising concerns that J.T. and A.T. were being abused and neglected by Mother. In response to those referrals, in May 2022 (while the guardianship action remained pending in the district court), DCFS filed a petition in juvenile court alleging that J.T. and A.T. were “abused, neglected, and/or dependent children.” The children were then removed from Mother’s custody and placed in the temporary custody of DCFS.

¶6        At the ensuing shelter hearing, a temporary placement for the children was discussed. Mother and A.T.’s father objected to Grandmother as a temporary placement option. The juvenile court considered their objections and ordered DCFS to “conduct a reasonable search to determine whether there [were other] relatives of the children or friends of the parents of the children who [were] willing and appropriate to be considered for placement of the children.” The juvenile court was “reluctant to have the children placed with [Grandmother] based on . . . accusations that [had] been made and the history involved in this case,” and it stated that it did “not believe that a kinship placement [was] appropriate if the children [were] going to be kept together.”[1] Nonetheless, the juvenile court left the temporary placement decision “up to the discretion of [DCFS].”

¶7        Shortly after the shelter hearing, DCFS held a kinship meeting and considered all the placement options that had been identified, including placement with Grandmother. DCFS decided to place both children with A.T.’s paternal aunt and uncle.

¶8        Grandmother then filed a Motion to Intervene and for Kinship Placement in the child welfare proceeding. In support of her motion, Grandmother argued that she had a right to intervene under rule 24(a)(2) of the Utah Rules of Civil Procedure.[2] That rule requires, among other things, that the movant “claim[] an interest relating to the property or transaction that is the subject of the action” and that the movant be “so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest.” Utah R. Civ. P. 24(a)(2). Grandmother claimed to have three interests that relate to the subject of this child welfare action, each of which, she asserted, might be impaired or impeded by resolution of the action: (1) an interest related to potential grandparent visitation, (2) an interest related to her petition for guardianship of J.T., and (3) an interest related to her right to preferential consideration as a temporary kinship placement for the children.

¶9        The juvenile court acknowledged that Grandmother has “some statutory rights . . . through the child welfare proceeding,” including “the right to be given preferential treatment as it relates to placement.” But it found that none of Grandmother’s rights “would be compromised if she is not allowed to intervene as a party,” and it therefore denied Grandmother’s request to intervene. It also denied her request to be the children’s temporary kinship placement. Grandmother appeals the denial of her request to intervene in the child welfare proceeding.

ISSUES AND STANDARDS OF REVIEW

¶10      On appeal, Grandmother again contends that she has three interests related to this child welfare proceeding, that “her ability to pursue each of these interests was impaired or impeded by prior and prospective rulings in the child welfare case,” and that “[e]ach of these three distinct interests is thus sufficient to support her right to intervene under [r]ule 24(a)(2).”

¶11      As to Grandmother’s first two claimed interests—namely, her interest related to grandparent visitation and her interest related to her guardianship petition—we resolve this appeal under rule 24 and examine whether the claimed interests qualify under rule 24(a)(2) as “interest[s] relating to the property or transaction that is the subject of the [child welfare] action.” Utah R. Civ. P. 24(a)(2). “Whether the intervenor has claimed an interest relating to the property or transaction which is the subject of the action” is an issue that “we review for correctness.” Supernova Media, Inc. v. Pia Anderson Dorius Reynard & Moss, LLC, 2013 UT 7, ¶ 16, 297 P.3d 599 (cleaned up).

¶12 As to Grandmother’s claimed interest related to her right to preferential consideration as a temporary kinship placement in the child welfare action, we resolve the issue through application of a controlling line of Utah Supreme Court cases—In re guardianship of A.T.I.G., 2012 UT 88, 293 P.3d 276; State v. Brown, 2014 UT 48, 342 P.3d 239; and F.L. v. Court of Appeals, 2022 UT 32, 515 P.3d 421. “Our interpretation of case law . . . presents a question of law reviewed for correctness.” State v. Morgan, 2001 UT 87, ¶ 1, 34 P.3d 767.

ANALYSIS

I. Intervention as of Right Under Rule 24(a)(2)

A.        Legally Protectable Interest

¶13 To the extent that Grandmother based her motion to intervene on rule 24(a)(2) of the Utah Rules of Civil Procedure,[3] she was required to show (1) that her motion was timely, (2) that she “claims an interest relating to the property or transaction that is the subject of the action,” (3) that the disposition “of the action may as a practical matter impair or impede [her] ability to protect [that] interest,” and (4) that “existing parties” do not “adequately represent that interest.” Utah R. Civ. P. 24(a)(2); see also Supernova Media, Inc. v. Pia Anderson Dorius Reynard & Moss, LLC, 2013 UT 7, ¶ 22, 297 P.3d 599. With respect to Grandmother’s first two interests that she claims form the basis of her right to intervene, we conclude that the interests do not qualify under rule 24(a)(2) as interests “relating to the property or transaction that is the subject of the action” and, thus, that she is not entitled to intervene based on those claimed interests.

¶14      We begin our analysis by recounting the relevant history of rule 24(a)(2). As of 1982, rule 24(a)(2) required a showing that the applicant “is or may be bound by a judgment in the action.” Utah R. Civ. P. 24(a)(2) (1982) (emphasis added). Not surprisingly, therefore, the Utah Supreme Court held in 1982 that a “party seeking intervention must demonstrate a direct interest in the subject matter of the litigation such that the intervenor’s rights may be affected, for good or for ill.” Lima v. Chambers, 657 P.2d 279, 282 (Utah 1982) (emphasis added), superseded by rule, Utah R. Civ. P. 24(a)(2) (1987), as recognized in Supernova Media, 2013 UT 7, ¶ 39. The court further explained:

The required interest does not include a mere, consequential, remote or conjectural possibility of being in some manner affected by the result of the original action. It must be such a direct claim upon the subject matter of the action that the intervenor will either gain or lose by direct operation of the judgment to be rendered.

Id. (emphasis added) (cleaned up).

¶15 Rule 24(a)(2) was later amended—effective January 1, 1987—to eliminate the requirement to show that the applicant would be “bound” by a judgment in the action. Utah R. Civ. P. 24(a)(2) (1987). The amended rule instead allowed for intervention when “the disposition of the action may as a practical matter impair or impede [the applicant’s] ability to protect that interest.” Id. The amended rule also changed the requirement to demonstrate an interest in the subject of the action to a requirement to “claim[] an interest relating to” the subject of the dispute. Id. These changes mandated intervention on “more liberal terms” than under the pre-1987 rule.[4] Chatterton v. Walker, 938 P.2d 255, 258 (Utah 1997).

¶16      Notwithstanding the 1987 amendment, both this court and the Utah Supreme Court rearticulated the old standard in subsequent cases where the difference between the old and new standards was not determinative. See In re E.H., 2006 UT 36, ¶¶ 51–52, 137 P.3d 809 (stating in a case where “the parties stipulated that the [intervenor] had the necessary interest,” that “[t]o justify intervention, the party seeking intervention must demonstrate a direct interest in the subject matter of the litigation” (emphasis added)); Interstate Land Corp. v. Patterson, 797 P.2d 1101, 1108 (Utah Ct. App. 1990) (stating that “[t]he applicant’s interest in the subject matter of the dispute must be a direct claim upon the subject matter of the action such that the applicant will either gain or lose by direct operation of the judgment to be rendered” but concluding that the applicants had “no direct or remote interest in the subject matter of the dispute” (emphasis added)).

¶17 In Supernova Media, Inc. v. Pia Anderson Dorius Reynard & Moss, LLC, 2013 UT 7, 297 P.3d 599, however, the Utah Supreme Court emphasized the effect of the 1987 amendment. In that case, the party opposing intervention argued that the applicant had “not established a direct, substantial, and legally protectable interest in the . . . matter.”[5] 2013 UT 7, ¶ 35 (cleaned up). The supreme court responded to this argument by explaining that the party opposing intervention had “misstate[d] the standard: [the applicant] is only required to claim an interest relating to the property or transaction which is the subject of the action. [It] is not required to ‘establish’ an interest, and the interest need not be ‘direct’ or ‘substantial.’” Id. (cleaned up). Notably, while the supreme court disavowed the suggestion that our current rule 24(a)(2) requires an applicant for intervention to demonstrate either a direct or a substantial interest in the subject of the action, it did not disclaim the notion that the applicant’s claimed interest must be a legally protectable one. See id. See generally Lima, 657 P.2d at 282 (holding that a party seeking intervention must show that its “rights may be affected, for good or for ill” (emphasis added)). Indeed, in In re United Effort Plan Trust, 2013 UT 5, 296 P.3d 742, which the supreme court had decided less than three weeks before it issued Supernova Media, the court held that an applicant’s interest in the proceeding must be an interest capable of supporting a legally cognizable claim or defense. See id. ¶¶ 37– 38.

¶18      In that case, a set of applicants for intervention claimed an interest in the subject of the action “arising from a ‘sacred priesthood charge, pursuant to scripture and belief’ and grounded in the ‘tenets of [the applicants’] faith.’” Id. ¶ 37. Another set of applicants similarly claimed an interest in the subject of the action “stemming from a ‘priesthood stewardship.’” Id. Although the court did “not question the importance of these interests in the abstract,” it concluded that they were not the kind of interests that triggered rule 24(a)(2). Id. In reaching this conclusion, the court observed that “rule 24(c) of the Utah Rules of Civil Procedure provides helpful context for evaluating rule 24(a)(2)’s ‘interest’ requirement,” and it explained as follows:

Under 24(c), a party moving for intervention must file an accompanying pleading setting forth the claim or defense for which intervention is sought. And rule 8 of the Utah Rules of Civil Procedure, in turn, sets forth the requirements for pleading claims and defenses, requiring for the assertion of a claim: (1) a statement of the claim showing that the party is entitled to relief; and (2) a demand for judgment for specified relief.

Id. ¶ 38 (cleaned up). The court then held that because the applicants there had “asserted no such claim” and “[t]heir purported ‘interests’ [were] abstract ones, disconnected from any ‘demand for judgment for specified relief,’” they “lacked an interest in the subject matter of the dispute sufficient to sustain their intervention under rule 24(a)(2).” Id. In sum then, In re United Effort Plan Trust stands for the proposition that only a legally protectable interest (not an abstract one) qualifies as an interest related to the subject matter of the action under rule 24(a)(2) because only on the basis of a legally protectable interest can one state a cognizable claim for specified relief.

¶19      Representative cases leading up to In re United Effort Plan Trust demonstrate that its holding was not an innovation but, rather, a more explicit articulation of a principle the court had applied over time. For example, in In re adoption of I.K., 2009 UT 70, 220 P.3d 464, the court held that an unmarried natural father who had “failed to timely establish his parental rights” under applicable state law had “no interest in the [adoption] proceeding [for his natural daughter] that would endow him with standing to intervene under rule 24.” See id. ¶ 26. And applying the same principle with a contrasting result, the court held in In re Discipline of Alex, 2004 UT 81, 99 P.3d 865, that a landlord did have “a cognizable interest . . . sufficient to justify its intervention” in an attorney discipline action because the district court in the disciplinary action had ordered a representative of the Utah State Bar to “recover, attach, remove and possess any and all property” left by the attorney in the landlord’s building and the landlord in its motion for intervention had also asserted a contingent right in the attorney’s personal property “pursuant to [an] order of restitution entered in [an] unlawful detainer action” against the attorney. Id. ¶¶ 5, 25–28 (cleaned up). Accordingly, for an interest to qualify under rule 24(a)(2) as an interest related to the subject matter of an action, it must be a legally protectable interest, one on the basis of which the applicant for intervention articulates a demand for specified relief.[6] See In re United Effort Plan Trust, 2013 UT 5, ¶ 38.

B.        Grandmother’s First Two Claimed Interests

¶20 Under the foregoing standard, we now examine Grandmother’s first two interests that she contends entitle her to intervention as of right under rule 24(a)(2).

1.         Interest Related to Grandparent Visitation

¶21      Grandmother claims an interest related to her potential pursuit of grandparent visitation rights under section 30-5-2(1) of the Utah Code. That section provides:

In accordance with the provisions and requirements of this section: (a) a grandparent has standing to bring an action requesting visitation in district court by petition; and (b) a grandparent may file a petition for visitation rights in the juvenile court or district court where a divorce proceeding or other proceeding involving custody and visitation issues is pending.

Utah Code § 30-5-2(1). Grandmother has not filed a petition for visitation under this section, and she does not argue that resolution of this child welfare proceeding may impair or impede her right to file such a petition. Indeed, if Grandmother wishes to petition for visitation under the provisions and requirements of section 30-5-2, she is—and will remain—free to do so regardless of the resolution of this action.

¶22 Instead, Grandmother’s argument is that if she files a petition for visitation under section 30-5-2, the visitation she might be granted could be impaired because of the placement decisions made in this action:

The minor children have been placed in a home 90 miles away from [Grandmother’s] home (they previously lived in the same city); one of the minor children has been placed in a home with a family to whom he is not a relative; and [Grandmother’s] access to visitation with the children has been severely restricted since the date of removal.

¶23      But Grandmother has no legally protectable right to have the children placed close to her home or to have them placed with a relative. And she fails to articulate any legally protectable right that is being violated by other allegedly severe but unidentified restrictions that have been placed on her access to visitation with the children. Accordingly, we affirm the juvenile court’s denial of Grandmother’s intervention motion to the extent that it was based on her claimed interests related to grandparent visitation.

2.         Interest Related to the Guardianship Proceeding

¶24 Grandmother also claims an interest related to the guardianship action she commenced in district court. Grandmother bases this interest on the “signed stipulation in [the guardianship] action [that grants Grandmother] certain rights in relation to the guardianship action.”[7] Under the stipulation, Mother and Grandmother agreed to an individual evaluation of J.T., Mother, and Grandmother and to “abide by the therapist’s recommendations as a temporary order” until final resolution of the guardianship case. Yet in her motion and arguments below, Grandmother never articulated a specified claim for relief based on this stipulation. And she does not identify one on appeal.

¶25      Moreover, we are not convinced that the stipulation gives Grandmother protectable legal rights on which she could base a cognizable claim for relief in this child welfare action. Grandmother’s rights under the stipulation are rights as against Mother, and Mother’s duty to perform is cabined by the “require[ment] to cooperate in good faith.” Thus, for example, we cannot say that Grandmother has a legally protectable right to Mother’s facilitation of a therapist’s evaluation of J.T. when J.T. has been removed from Mother’s custody. Cf. Kilgore Pavement Maint., LLC v. West Jordan City, 2011 UT App 165, ¶ 9, 257 P.3d 460 (“Under the contractual defense of impossibility, an obligation is deemed discharged if an unforeseen event occurs after formation of the contract and without fault of the obligated party, which event makes performance of the obligation impossible or highly impracticable.” (cleaned up)).

¶26 Because Grandmother has failed to point us to a legally protectable right that she has under the stipulation and on the basis of which she seeks some specified relief in this child welfare action, we affirm the juvenile court’s denial of her intervention motion to the extent that it was based on her claimed interest related to the stipulation in the guardianship proceeding.[8]

II. Intervention as a Limited-Purpose Party

¶27      Grandmother’s final argument is that her statutory right to preferential consideration as a temporary kinship placement for the children provides an interest that supports her intervention as of right under rule 24(a)(2). As we have noted already, however, we do not address under rule 24(a)(2) Grandmother’s statutory right to preferential consideration as a temporary kinship placement. Instead, we address intervention based on that statutory right under a controlling line of Utah Supreme Court cases—In re guardianship of A.T.I.G., 2012 UT 88, 293 P.3d 276; State v. Brown, 2014 UT 48, 342 P.3d 239; and F.L. v. Court of Appeals, 2022 UT 32, 515 P.3d 421.

A.        Relevant Supreme Court Precedent

¶28 We begin by reviewing the identified cases. In In re guardianship of A.T.I.G., the mother of a child was “diagnosed with terminal lung cancer.” 2012 UT 88, ¶ 6. “[I]n anticipation of her death, [the mother] prepared a testamentary appointment of guardianship and conservatorship of [her child] in favor of [the child’s maternal grandparents].” Id. The child’s biological father, who was never married to the mother, was not named on the child’s birth certificate, and he had not signed a voluntary declaration of paternity at the time of the child’s birth. Id. ¶ 3. Nor was the father notified of the mother’s testamentary appointment of guardianship. Id. ¶ 6. After the mother’s passing and funeral, the grandparents took the child home and filed a petition for confirmation of their appointment as guardians, and the district court confirmed their appointment. Id. ¶ 7. When the father learned that the grandparents had been appointed and confirmed as the child’s guardians, he filed an objection. Id. ¶¶ 8, 19. The district court denied the objection, and the father appealed. Id. ¶¶ 9, 11–12.

¶29      On appeal, the grandparents argued that because the father “never formally filed a motion to intervene in [the] case, he lacked standing to object to the guardianship appointment” and “standing to bring [the] appeal.” Id. ¶ 17 (cleaned up). The supreme court disagreed, explaining that because section 75-5-203 of the Utah Code “permits ‘[a]ny person interested in the welfare of a minor’ to file a written objection to a guardianship appointment,” “the statute confers intervenor status on any person who files an objection pursuant to it.” Id. ¶ 18. Accordingly, the court concluded, “when [the father] filed his objection, [he] received statutory intervenor status.” Id. ¶ 19.

¶30      A few years later, in State v. Brown, 2014 UT 48, 342 P.3d 239, the supreme court reached a similar conclusion and elaborated on its reasoning. There, it granted intervention with “limited-party status” to a victim in a criminal proceeding. See id. ¶¶ 13–20. The defendant had been charged with sex crimes (and later pleaded guilty to one of them), and the victim “sought to intervene by filing a notice of a claim for restitution.” Id. ¶¶ 1, 5. “The district court rejected [the] filing on the ground that [the victim] was not a proper party and thus lacked standing to file pleadings.” Id. ¶ 1. The victim appealed. Id. ¶ 2.

¶31 On appeal, the supreme court acknowledged that “[t]he traditional parties to a criminal proceeding are the prosecution and the defense, and a crime victim is not that kind of party; a victim is not entitled to participate at all stages of the proceedings or for all purposes.” Id. ¶ 16. The court noted, however, that “[o]ur crime victims bill of rights recognizes the right of a victim to ‘seek restitution or reparations.’” Id. ¶ 18 (quoting Utah Code § 77-37­3(1)(e)). It then explained that “the right to ‘seek’ connotes a proactive right to ‘go in search of,’ or to ‘try to acquire or gain,’” and that “the anticipated mode of seeking restitution is . . . by a direct filing by the victim.” Id. (cleaned up). Reasoning that “[n]on-parties have no standing to file motions or to otherwise request relief,” the court concluded that the provisions of the code allowing a victim to seek restitution through a direct filing “recognize a victim’s status as a limited-purpose party.” Id. ¶ 19.

¶32      Most recently, in F.L. v. Court of Appeals, 2022 UT 32, 515 P.3d 421, the supreme court again addressed the right of a crime victim to intervene in a criminal proceeding as a limited-purpose party. The defendant in that case was also charged with sex crimes, and he requested “that the district court conduct an in camera review of [the alleged victim’s] therapy and counseling records and release specific categories of information relevant to his defense.” Id. ¶ 1. The court granted the request, conducted the review, and issued orders quoting relevant excerpts from the records. Id. The court then sealed the records, the case proceeded to trial, and the defendant was convicted of one count of sexual abuse of a child. Id. He then appealed, challenging “the adequacy of the district court’s in camera review.” Id. ¶ 2.

¶33      The appeal came to this court, and we initially “unsealed [the] records and classified them as private, which allowed [the defendant’s] attorney to make extensive use of those records in his opening brief on appeal.” Id. The victim, however, asked this court to reseal her records, and we responded by ordering the records resealed and instructing the defendant “to file a revised brief without references to the records.” Id. The defendant complied but argued that “the sealing order violated his rights.” Id. ¶ 3. The victim “then moved to intervene in [the] appeal as a limited-purpose party to assert her privacy interests.” Id. We did not grant intervention, but we did allow her to file an amicus brief. Id. ¶ 4. She then filed a petition for extraordinary relief in the supreme court, seeking an order allowing her to intervene as a limited-purpose party. Id. ¶¶ 4–5.

¶34 The supreme court held that the victim was entitled to limited-purpose party status “under the reasoning of State v. Brown and as provided in Utah Rule of Evidence 506.” Id. ¶ 35. The court determined that “[t]he reasoning of State v. Brown can be distilled into this general rule: if the law gives crime victims the ability to proactively assert a right or seek a remedy, then they may enforce those specific rights as limited-purpose parties in criminal proceedings.” Id. ¶ 37. Therefore, the question was “whether the law [gave the victim] the right to proactively assert her privacy interests in her privileged mental health records.” Id.

The court declared that it did because under rule 506, “a patient has a privilege to refuse to disclose and to prevent any other person from disclosing information that is communicated in confidence to a mental health therapist for the purpose of diagnosing or treating the patient” and “the privilege may be claimed by the patient.” Id. ¶ 38 (cleaned up). The court emphasized that, “[s]imilar to the phrase ‘seek restitution’ in Brown, the phrase ‘claim the privilege’ [in rule 506] connotes a proactive right.” Id. Because rule 506 gave the victim a proactive right to “assert that privilege and directly oppose [the defendant’s] attempts to gain access to her records,” the court concluded that the victim “possess[ed] the status of a limited-purpose party.” Id. ¶ 39 (cleaned up).

¶35 The court in F.L. also expressly addressed intervention under rule 24 of the Utah Rules of Civil Procedure. See id. ¶ 37 n.36. It observed that the defendant and the victim had spent “much of their briefing arguing over whether [the victim] should be allowed to intervene through Utah Rule of Civil Procedure 24, which [the victim] argue[d] should apply to [the] criminal proceedings under Utah Rule of Civil Procedure 81(e).” Id. The State, on the other hand, argued that the victim did “not need to satisfy the requirements of rule 24 to become a limited-purpose party under Brown.” Id. Importantly, the court “[chose] the narrower option and resolve[d] [the] case based on Brown and Utah Rule of Evidence 506 rather than rule 24,” emphasizing that (1) it had previously “held that the traditional parties to a criminal proceeding are the prosecution and the defense, and a victim is not entitled to participate at all stages of the proceedings or for all purposes”; (2) “rule 24 allows a person to become a full-fledged party to the proceeding in every respect”; and (3) it was “concerned with the broad consequences of applying rule 24 to allow intervention in criminal proceedings.” Id. (cleaned up).

B.        Right to Preferential Consideration as a Kinship Placement

¶36      As with the father in In re guardianship of A.T.I.G. and the victims in Brown and F.L., the law gives Grandmother the ability to proactively assert a right or seek a remedy in the action into which she seeks to intervene. Specifically, section 80-3-302 of the Utah Code, which addresses shelter hearings in child welfare proceedings, provides that when considering the temporary placement of children removed from a parent’s custody, “[DCFS] and the juvenile court shall give preferential consideration to a relative’s or a friend’s request for placement of the child, if the placement is in the best interest of the child.” Utah Code § 80-3-302(7)(a)(i) (emphasis added). Furthermore, the preceding code section, which also addresses shelter hearings, requires the juvenile court conducting the hearing to “hear relevant evidence presented by the child, the child’s parent or guardian, the requesting party, or the requesting party’s counsel.” Id. § 80-3-301(5)(b)(ii) (emphasis added). Just as the law’s recognition of the rights to “file” an objection, “seek” restitution, and “claim” privacy protections each indicate an ability to proactively assert a right or seek a remedy and, thus, confer limited-purpose intervenor status on persons who exercise those rights, section 80­3-302’s recognition of a relative’s or a friend’s right to “request” preferential consideration for child placement likewise indicates an ability to proactively assert a right or seek a remedy and, thus, confers limited-purpose intervenor status on relatives or friends when they request such preferential consideration. See In re guardianship of A.T.I.G., 2012 UT 88, ¶ 19, 293 P.3d 276 (holding that “when he filed his objection, [the father] received statutory intervenor status” (emphasis added)); State v. Brown, 2014 UT 48, ¶ 19, 342 P.3d 239 (“Non-parties have no standing to file motions or to otherwise request relief. Such rights are conferred only on parties.”).

¶37 Persons who gain this type of statutory or rule-based intervenor status, however, become only “limited-purpose parties” who may participate in the action solely to “enforce those specific rights” that the law upon which their intervention is based affords “the ability to proactively assert.” Id. Hence, Grandmother’s limited-purpose party status allows her to request preferential consideration for temporary kinship placement, see Utah Code § 80-3-302(7)(a)(i), provide relevant testimony and other relevant evidence on the issue of temporary placement during the shelter hearing, see id. § 80-3-301(5)(b)(ii), and be provided information that is anticipated to be reported or requested during the portion of the shelter hearing that she is entitled to participate in as a party, see id. § 80-3-107(1)(a).

¶38 Grandmother contends that to the extent section 80-3-302(7)(a)(i) does “create some right of limited-purpose intervention,” that right should “not preempt” rule 24 of the Utah Rules of Civil Procedure. As reflected in this opinion, we agree with Grandmother to some extent: we do not see inherent inconsistency between rule 24(a)(2) and the Utah Rules of Juvenile Procedure, see supra note 3, and we have therefore analyzed under rule 24(a)(2) Grandmother’s claimed interests that are not of the sort that would give rise to limited-purpose party status, see supra ¶¶ 13–26.

¶39 On the other hand, we note that quite like criminal proceedings where “the prosecution and the defense” are the “traditional parties” and others, including victims, are “not entitled to participate at all stages of the proceedings or for all purposes,” F.L., 2022 UT 32, ¶ 37 n.36, the traditional parties in DCFS-initiated child welfare proceedings are the State (in the interest of the children) and the parents or guardians of the children, and other parties are not entitled to participate for all purposes or at all stages of the proceedings. Given these similarities, we are concerned, as was the supreme court with respect to criminal proceedings, “with the broad consequences of applying rule 24 to allow intervention” in child welfare proceedings in instances where the “narrower option” of limited-purpose intervention is available. Id. For this reason, we follow the supreme court’s lead and resolve the portion of this case stemming from Grandmother’s claimed interest in preferential kinship placement under In re guardianship of A.T.I.G.BrownF.L., and Utah Code section 80-3-302(7)(a)(i).[9]

¶40      Based on the foregoing, we hold that when Grandmother requested preferential consideration as a temporary kinship placement for the children, she acquired limited-purpose statutory intervenor status. The juvenile court thus erred by not recognizing Grandmother as a limited-purpose party.

CONCLUSION

¶41      The juvenile court was correct when it declined to grant Grandmother’s request to intervene in this child welfare matter under rule 24(a)(2) of the Utah Rules of Civil Procedure based on her claimed interests related to grandparent visitation and the stipulation in the guardianship action in district court. The court erred, however, when it did not recognize Grandmother’s status as a limited-purpose party. We therefore reverse in part the juvenile court’s denial of Grandmother’s motion to intervene and remand for further proceedings consistent with this opinion.

 

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In re G.H. – 2023 UT App 132 – juvenile court grandparent guardianship

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF G.H. AND R.H.,

PERSONS UNDER EIGHTEEN YEARS OF AGE.

L.G.,

Appellant,

v.

R.G. AND R.G.,

Appellees.

Opinion

No. 20220920-CA

Filed November 2, 2023

Seventh District Juvenile Court, Price Department

The Honorable Craig Bunnell

No. 1210014

Steve S. Christensen and Clinton Brimhall,

Attorneys for Appellant

Colleen K. Coebergh, Attorney for Appellees

Martha Pierce, Guardian ad Litem

JUDGE DAVID N. MORTENSEN authored this Opinion, in which

JUDGES RYAN M. HARRIS and AMY J. OLIVER concurred.

MORTENSEN, Judge:

¶1        The maternal grandparents of two children filed a petition for guardianship, alleging neglect by both parents and abuse at the hands of the children’s father. The guardianship was contested, and a trial was held. After trial, the juvenile court granted the petition, finding facts consistent with the allegations of the petition and determining that the guardianship was in the best interest of the children. Further, the juvenile court determined that the mother’s parent-time, if any, would take place at the unfettered discretion of the grandparents. The mother appeals, claiming the juvenile court erred in determining neglect, erred in failing to order parent-time, and wrongfully denied a motion to change venue as to one of the children. For the most part, we affirm. However, the juvenile court’s findings regarding the mother’s parent-time rights are inadequate, and we therefore remand this matter for the entry of further findings and conclusions as necessary.

BACKGROUND

¶2        AG (Mother) and JH (Father) are the natural parents of GH and RH (the Children).[1] In April 2022, Mother’s parents, RG and RG (Grandparents), petitioned for guardianship and custody of the Children, alleging that such a placement was in the best interest of the Children due to Father’s abuse and both parents’ neglect. A few days later, Grandparents filed an ex parte motion for temporary custody of the Children, and the juvenile court granted the request.

¶3        At a pre-trial hearing, Mother asked for an expedited evidentiary hearing regarding temporary custody. The court declined that request and instead held a combined adjudication and disposition hearing over two trial days in July and August 2022.

¶4        After that hearing, the court issued an order setting forth findings of fact and conclusions of law regarding adjudication and disposition. Because Mother does not dispute the findings of fact, we recite the facts directly from the juvenile court’s findings.[2]

¶5        The court took judicial notice of a 2019 order in which the same court terminated Mother’s parental rights to an older child, who was adopted by Grandparents shortly thereafter. Mother stated she had “no idea” why her maternal rights for the older child were terminated, but the record shows that it was primarily due to Mother’s neglect.

¶6        Mother moved in with Grandparents in Price, Utah, in July 2019 and lived with them through the first part of January 2022. From June through September 2021, Mother worked evenings (5:00 p.m. to 9:00 p.m.). She had surgery for “a minor thing” in September 2021. Mother was unemployed until she obtained full-time employment in December 2021. At this job, she worked ten-hour shifts (10:00 a.m. to 8:00 p.m.) four days per week.

¶7        While living with Grandparents, Mother “relied on [Grandparents] almost exclusively and for nearly everything for [the Children] . . . . [Grandparents] were the primary caretakers for [the Children’s] day-to-day physical, developmental, medical, and financial needs.”

¶8        With regard to the Children’s physical needs, Mother “did very little to make arrangements for [the Children], provide basic care, or assist with household duties,” even when asked to do so. She did not provide “day-to-day food or meals” for the Children, nor did she help with potty training GH.

¶9        Regarding developmental needs, Grandparents provided for “the vast majority of [the Children’s] indoor and outdoor activities, toys, and one-on-one parent-role interactions.” Mother “did very little to actually parent [the Children] or care for their needs,” and she did not assist with “mothering” the Children. When asked to care for the Children, other than watching the Children for about five hours some weekdays when Grandparents were both working, “Mother would often say she was too tired, too busy, be on her phone or smoking, or on her bed resting or lounging.”

¶10      Mother’s sister (Sister) would often visit Grandparents’ house (about two times each week when Grandparents were not there), and she observed Mother being “verbally abusive or terse with [the Children],” leaving them “unattended or unsupervised, not changing diapers as needed, or not caring for them.” The court also found, based on Sister’s testimony, that Mother would often “come to [Sister’s] house (at times unannounced) without child­care supplies or clothes,” asking for help with the Children because Mother was “tired, needed a break, going out with friends, or going to work (although, at times, she did not go to work, but went back to [Grandparents’] house to sleep or smoke).”

¶11 Financially, Mother sometimes shared her government food assistance card but relied on Grandparents for most of the Children’s financial needs. She also relied on Grandparents to provide birthday or Christmas gifts for the Children. She did, however, reimburse Grandparents a few hundred dollars and paid for some daycare.

¶12 Regarding medical needs, Mother took the Children for immunizations, but she did not take them to other types of medical appointments or help Grandparents when the Children were sick with ear infections, colds, or other maladies.

¶13 In January 2022, Mother moved in with another relative (Step-Grandmother) in Highland, Utah, which was twenty minutes from her newly acquired job. Grandparents continued as GH’s primary caretakers in Price, but RH moved to Step-Grandmother’s house with Mother.

¶14 During this time-period, RH received daily and weekly care in four different cities separated by nearly a hundred miles and by four different caregivers besides Mother, namely Step-Grandmother, Great-Grandmother, Father’s mother, and Grandparents. Essentially, Grandparents and Great-Grandmother would relieve Step-Grandmother when she was not available to watch RH. Sometimes Mother would be the one to take RH to Great-Grandmother’s house. Step-Grandmother, Grandparents, the maternal great-grandmother (Great-Grandmother), or Mother transported RH, and sometimes GH, from house to house on weekends. Mother’s mother handled most of the Children’s care coordination, “unless Mother needed to preplan to accommodate her own work schedule.” RH did not stay in “one consistent place or house” during this time-period; RH was at a “different house almost every day of the week, and each week was different than the last.”

¶15 Watching Mother with the Children “scared” Step-Grandmother, and she never saw Mother being “a mother” to the Children. Mother was “negative verbally” to the Children and “put her own wants and needs before RH’s needs.” Mother would get upset when Step-Grandmother wanted to go out, making it necessary for Mother to watch RH.

¶16 Mother provided very little assistance to Step-Grandmother with household duties, except for washing her and RH’s clothes, and “Mother’s bedroom was always cluttered (with RH’s clothes on the floor) and never cleaned.” Mother put RH to bed half the time, but Step-Grandmother noted that the time was never consistent, as Mother sometimes would come home as late as 10:30 p.m. On some Friday nights, Mother did not come home at all until later that weekend.

¶17 While living with Step-Grandmother, Mother changed RH’s diaper only about once per day; smoked cigarettes “all the time”; was “always on her phone”; did not give baby food or regular feeding; and did not read to, play with, sing to, or bathe RH.

¶18      In mid-March 2022, Mother moved into a rental house in Murray, Utah, with RH. Although Step-Grandmother no longer provided RH daily care after the move, Mother still used Grandparents, Great-Grandmother, and Father’s mother to care for RH. Mother’s work schedule changed to eight hours per day, five days per week (12:00 p.m. to 8:00 p.m. or 2:00 p.m. to 10:00 p.m.). Grandparents primarily watched RH on weekends. GH continued to live with Grandparents.

¶19 On April 5, 2022, Mother picked up Father from prison, and he lived with Mother from then until at least July 2022, when Mother learned—on the first day of trial through Father’s probation officer’s testimony—that Father had used drugs just a week before. Before hearing this testimony, “Mother did not believe he would use drugs.” Mother allowed Father to watch the Children unsupervised, and until trial, she had planned to continue living with him, despite knowing that Father was convicted of assaulting someone in prison two months prior to his release and despite complaining to Grandparents that Father was “controlling and threatening her, taking her phone and car, refusing to work, and taking advantage of her.” Father’s assault conviction “did not cause her any concern” about him being with her or the Children.[3] The court found that Mother’s reintroduction of Father into the Children’s lives “was an emphatic demonstration to the Court of Mother’s poor judgment and her continued inability (since having her parental rights terminated to an older child in 2019 and since [the Children] were born) to put [the Children’s] needs and welfare before her own.”

¶20 Mother made efforts to obtain a full-time job and to perform well at her job to provide for her and the Children.[4] But the court concluded that Mother “did not progress over the last three years as was necessary and appropriate for her to meet the daily needs” of the Children. Instead, Grandparents, Step-Grandmother, Great-Grandmother, and others provided “the crucial day-to-day parenting and caretaking that are necessary for [the Children] to thrive developmentally and otherwise.”

¶21 The court also found that the Children “thrived living together with [Grandparents] prior to Mother moving out of [Grandparents’] home in January 2022” and after being reunited in Grandparents’ home in April 2022. The court noted that Grandparents “demonstrated their reliability and consistent efforts to provide for all of [the Children’s] day-to-day physical, mental, emotional, developmental, medical, financial, and educational needs.” The court emphasized that the Children should be living together.

¶22      Based on these factual findings, the court concluded there was clear and convincing evidence that Mother neglected the Children. The court also concluded, based on clear and convincing evidence, that the Children’s best interests would be met by granting Grandparents permanent custody and guardianship. Additionally, the court ordered that Mother’s and Father’s parent-time with the Children “shall be at the discretion and under the control or management of [Grandparents].”

¶23 As relevant here, Mother moved the court to dismiss Grandparents’ petition for improper venue or to transfer venue, which the court denied. Mother now appeals.

ISSUES AND STANDARDS OF REVIEW

¶24 Mother argues that the juvenile court erred when it determined that the Children were neglected. Mother clarifies that she is not disputing the court’s findings of fact but the court’s application of these findings to the law; therefore, “we accept these findings as true in our analysis on appeal.” d’Elia v. Rice Dev., Inc., 2006 UT App 416, ¶ 24, 147 P.3d 515. “We view the question presented here as law-like because it concerns whether the facts as constituted meet the legal standard of the statute. . . .

Accordingly, we review the issue presented here giving no deference to the juvenile court.” In re A.B., 2021 UT App 91, ¶ 10, 498 P.3d 894, aff’d, 2022 UT 39, 523 P.3d 168.

¶25 Mother also argues that the juvenile court erred in not awarding her parent-time and thus failing to give due consideration to her residual parental rights. “We generally will not disturb the district court’s parent-time determination absent a showing that the court has abused its discretion. However, we review the district court’s interpretation of a statute for correctness. Likewise, we review the legal adequacy of findings of fact for correctness as a question of law.” Lay v. Lay, 2018 UT App 137, ¶ 4, 427 P.3d 1221 (cleaned up).

¶26 Finally, Mother argues that the juvenile court erred in denying her motion to dismiss or transfer based on venue. Venue “is a question committed to the district court’s discretion, which we review for an abuse of discretion.” Davis County v. Purdue Pharma, LP, 2020 UT 17, ¶ 7, 463 P.3d 619.

ANALYSIS
I. Neglect

¶27      “If, at the adjudication[5] 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.” Utah Code § 80-3­402(1). “The dispositional hearing may be held on the same date as the adjudication hearing . . . .” Id. § 80-3-402(3). At the dispositional hearing, the juvenile court then “may vest custody of an abused, neglected, or dependent minor in the division or any other appropriate person.” Id. § 80-3-405(2)(a)(i). “If a minor has been placed with an individual or relative as a result of an adjudication . . . , the juvenile court may enter an order of permanent legal custody and guardianship with the individual or relative of the minor.” Id. § 80-3-405(2)(d)(i). “Clear and convincing evidence is an intermediate standard of proof that implies something more than the usual requirement of a preponderance of the evidence; and something less than proof beyond a reasonable doubt. Put differently, this standard requires the existence of facts that make a conclusion very highly probable.” In re K.K., 2023 UT App 13, ¶ 22, 525 P.3d 519 (cleaned up), cert. denied, 531 P.3d 731 (Utah 2023).

¶28      Neglect is statutorily defined, and can be proved in any one of several ways. See Utah Code § 80-1-102(58)(a)(i)–(vi).[6] While the juvenile court found neglect under several subsections, to affirm we need conclude only that neglect was established under one of the bases. See In re E.F., 2013 UT App 13, ¶ 3, 295 P.3d 1165 (per curiam) (upholding juvenile court’s conclusion that mother neglected child under the sole basis of lack of proper parental care by reason of parent’s faults or habits). Among other bases, the juvenile court found neglect under subsection (ii), which defines neglect as “action or inaction causing . . . lack of proper parental care of a child by reason of the fault or habits of the parent, guardian, or custodian.” Utah Code § 80-1-102(58)(a)(ii). We agree with the juvenile court that the evidence supported a finding that this basis for neglect had been proved.

¶29      First and foremost, the factual findings demonstrated that Mother did not attend to the Children’s basic health and welfare needs, such as feeding and bathing them, changing their diapers regularly, and obtaining medical care for them when they were sick. Mother also did not show any interest in potty training GH.

¶30      Moreover, Mother did not behave in a manner consistent with parenting a child. For example, Mother did not demonstrate a desire to play with the Children, read or sing to them, or buy them birthday and Christmas presents. And Grandparents were the ones to provide the Children’s indoor and outdoor activities and toys rather than Mother.

¶31      Similarly, the findings revealed that Mother lacked interest in being around the Children, and she would refuse to care for them when asked by the family members with whom she was living. Mother would complain that “she was too tired” or “too busy,” or she would prefer to “be on her phone or smoking, or on her bed resting or lounging.” Likewise, Mother would drop off the Children unannounced at Sister’s house—“without child-care supplies or clothes”—because Mother was “tired, needed a break, [or was] going out with friends, or going to work,” although, at times she went back to Grandparents’ house “to sleep or smoke” instead. Mother also would get upset when Step-Grandmother wanted to go out some evenings, thus leaving Mother to care for the Children. In addition, “Mother did not do household duties when asked to do so.”

¶32 Although the court did acknowledge Mother’s commendable efforts with her current job, it still found that Mother “did not progress over the last three years as was necessary and appropriate for her to meet the daily needs of each of [the Children].”

¶33 Furthermore, the findings demonstrate that Mother was not troubled by Father being with her or the Children. Even though Mother knew that Father was convicted of assaulting someone while in prison and said that he was “controlling and threatening her, taking her phone and car, refusing to work, and taking advantage of her,” Mother allowed Father to watch the Children unsupervised and, until learning of his continued drug use at trial, had planned to go on living with him. Additionally, despite Father’s history with drug use, Mother “did not believe he would use drugs.” Mother’s reintroduction of Father into the Children’s lives demonstrated to the court “emphatic[ally]” that Mother showed “poor judgment and [a] continued inability (since having her parental rights terminated to an older child in 2019 and since [the Children] were born) to put [the Children’s] needs and welfare before her own.”

¶34 The court also highlighted that during the time when Mother lived with Step-Grandmother, the Children were cared for by many different caregivers other than Mother. The court found that Grandparents were the main caregivers for GH, and the court emphasized that RH’s daily and weekly care was provided by five different caregivers located in four different cities. Mother argues that a “child is not without proper parental care solely because that care is not always at the hands of a parent” and that it is “not uncommon for parents, especially single working mothers, to place children in daycare or arrange for care with family.” In support of her argument, Mother cites In re A.B., 2021 UT App 91, 498 P.3d 894, aff’d, 2022 UT 39, 523 P.3d 168, where we held that a child is not neglected if the child receives proper parental care, “even if not always at [a mother’s] hand.” Id. ¶ 20.

¶35 We agree with Mother that it can be completely appropriate for parents to arrange for others to help them in caring for their children, and we empathize with single parents whose childcare arrangements may not always seem ideal to others of greater means and opportunity. But Mother’s behavior in this case is distinguishable from that in In re A.B. Here, the juvenile court found, and Mother does not dispute, that Mother did “very little to make arrangements” for the Children, would drop off the Children at Sister’s “at times unannounced,” would not come home when she was expected to, and would not take care of the Children when at home. In contrast, In re A.B. concerned a child who spent summers with “welcoming relatives[,] . . . and on agreement, summer turned into a whole year.” Id. ¶ 1 (emphases added). Moreover, that mother arranged the child’s care with the relatives, id. ¶¶ 2–3, and she never refused to take care of her child when she oversaw the child’s care, id. ¶ 19. Therefore, Mother’s reliance on In re A.B. misses the mark.

¶36 Based on the foregoing, we conclude that the juvenile court’s findings of fact meet the legal standard of neglect. See Utah Code § 80-1-102(58)(a)(ii). Therefore, we affirm its grant of permanent custody and guardianship to Grandparents. See id. § 80-3-405(2)(d)(i).[7]

II. Parent-Time

¶37      Mother next argues that the juvenile court erred by failing “to even consider providing Mother parent-time in the final analysis order.” While we don’t quite agree with Mother’s characterization of the order as a complete failure to consider Mother’s residual rights, we agree that remand on this issue is necessary.

¶38 When the juvenile court vests custody of a child in someone other than the child’s natural parent, the court “shall give primary consideration to the welfare of the minor.” Utah Code § 80-3-405(2)(a)(ii)(A). Here the court did so by awarding custody to Grandparents, whom the court found to “have demonstrated their reliability and consistent efforts to provide for all of [the Children’s] day-to-day physical, mental, emotional, developmental, medical, financial, and educational needs.”

¶39      But the court’s responsibilities when awarding custody do not end there. The court also “shall give due consideration to the rights of the parent or parents concerning the minor.” Id. § 80-3-405(2)(a)(ii)(B). This includes consideration of awarding reasonable parent-time. Specifically, the statute provides that “[a] parent of a minor for whom a guardian is appointed retains residual parental rights and duties.” Id. § 75-5-209(5). These residual parental rights include “the right to reasonable parent-time unless restricted by the court.” Id. § 80-1-102(70)(a)(iv). Thus, our legislature intended for juvenile courts to give careful thought to an award of parent-time when granting custody and guardianship to someone else. And we note that parent-time is significant because it offers “the parent the possibility of maintaining a meaningful relationship with the child despite lack of physical custody.” Moreno v. Board of Educ., 926 P.2d 886, 890 (Utah 1996).

¶40      Yet here, the juvenile court simply stated that Mother’s and Father’s parent-time with the Children “shall be at the discretion and under the control or management” of Grandparents, without making any findings regarding the amount of parent-time that would be reasonable. Instead, the court delegated that determination entirely to Grandparents. And this could lead to Grandparents denying Mother any parent-time[8] without the court making any findings of fact to justify such a denial.[9] Here, we find the court’s findings and conclusions regarding parent-time to be inadequate.

¶41      A juvenile court’s factual findings “must be sufficiently detailed and include enough subsidiary facts to clearly show the evidence upon which they are grounded.” In re S.T., 928 P.2d 393, 398 (Utah Ct. App. 1996); see also In re M.G., 2003 UT App 313U, para. 5 (holding that “a review of the court’s oral findings reveals the subsidiary facts and basis for the juvenile court’s written findings and demonstrates that the written and oral findings, taken together, are sufficiently detailed to permit appellate review”). “Put another way, findings are adequate when they contain sufficient detail to permit appellate review to ensure that the [juvenile] court’s discretionary determination was rationally based. Indeed, the [juvenile] court’s obligation to render adequate findings facilitates meaningful appellate review and ensures the parties are informed of the [juvenile] court’s reasoning.” Lay v. Lay, 2018 UT App 137, ¶ 19, 427 P.3d 1221 (cleaned up). “Unless the record clearly and [incontrovertibly] supports the [juvenile] court’s decision, the absence of adequate findings of fact ordinarily requires remand for more detailed findings by the [juvenile] court.” Woodward v. Fazzio, 823 P.2d 474, 478 (Utah Ct. App. 1991) (cleaned up).

¶42      We are unable to determine the court’s basis for leaving all parent-time decisions in the hands of Grandparents, a situation that potentially denies Mother any parent-time with the Children.

Accordingly, we vacate the juvenile court’s decision regarding parent-time and remand this matter for specific findings demonstrating what conditions of parent-time are reasonable. If the court determines that it is reasonable to award no parent-time to Mother, then the court must make specific findings to justify such a determination.

III. Venue

¶43 Mother brought a motion to dismiss or change venue on the morning of trial, asserting that the case had been brought in the wrong venue.[10] The juvenile court took the motion under advisement and delayed ruling on the motion until it could take evidence and determine facts relative to venue. In its dispositional order, the juvenile court determined that venue was correct in the Seventh District. Now on appeal, Mother challenges that conclusion only as to RH. Mother maintains that on the day the petition for guardianship was filed, RH was living with Mother in Salt Lake County. Even assuming, for purposes of the discussion, that venue was incorrectly determined to be in the Seventh District as to RH, we affirm the decision of the juvenile court because Mother has failed to show any harm.

¶44 The guardian ad litem’s briefing maintained that Mother needs to show harm to obtain reversal based on an erroneous denial of the motion to change venue as it pertains to RH. Mother does not quibble with this legal assertion but claims that she implicitly identified and showed harm in her principal brief. As both parties have proceeded under the assumption that an appellant must show harm, we will do likewise without deciding that discrete issue.[11] The sole harm Mother points to is that the case regarding RH would have been dismissed and that dismissal would have benefitted Mother. Mother is wrong on the first point and utterly fails to meet her burden of persuasion on the second.

¶45      First, as to automatic dismissal, this result was rejected several years ago by this court when In re adoption of B.N.A., 2018 UT App 224, 438 P.3d 10, explored the consequences of hearing a case in the wrong venue. Initially, we explained that under current precedent, subject-matter jurisdiction is not implicated when a case is filed in the wrong district. Id. ¶¶ 12–24. Then we concluded that the “consequence for filing in the wrong district is not automatic dismissal.” Id. ¶ 25. Instead, “any party, upon proper motion, may request that the case be transferred to the correct district.” Id. So, if the Mother’s motion had been granted, the case would have been transferred, not dismissed. Accordingly, the argument that harm resulted because the case would have been dismissed fails.

¶46 Second, Mother fails to identify any other harm. She merely concludes that “[d]ismissal would have benefitted Mother.” But as just explained, dismissal would not have occurred. And Mother presents no argument that she would have obtained a different result had the case been transferred. Importantly, where Mother does not challenge that the case involving GH would have remained in the Seventh District, we easily foresee that upon transfer, any other juvenile court would have likely transferred the RH case back to the Seventh District under its discretionary powers, and more particularly under rule 42 of the Utah Rules of Civil Procedure.[12] Further, Mother fails to show how the result rendered in a different venue would have been better for her. Thus, Mother fails to meet her burden of persuasion that she was harmed by the denial of her motion to change venue.

¶47      Accordingly, we see no basis to reverse the judgment of the juvenile court on the issue of venue.

CONCLUSION

¶48      We affirm the juvenile court’s determination that Mother neglected the Children and that venue was proper in the Seventh District with regard to RH. We also conclude that the juvenile court made inadequate findings regarding its parent-time award. Therefore, we vacate the court’s award of sole discretion over Mother’s parent-time to Grandparents and remand the matter for further proceedings consistent with this opinion to consider Mother’s residual parental rights when determining a reasonable award of parent-time.

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


[1] RH has a twin, who has lived with the maternal great-grandmother since April 2021 and is not involved in this case.

 

[2] Mother disputes the findings of fact only with regard to venue. But as our disposition makes clear, these factual disputes are immaterial.

[3] Although the court found that Father had “an extensive and violent criminal history, including convictions for interfering with arrests, assaults, disorderly conduct, and threats of violence,” it did not make a specific finding regarding Mother’s knowledge of his violent criminal history outside of the event in prison.

[4] When asked about how Mother was performing at work, her supervisor testified, “She is incredibly reliable. She’s one of my go-to staff . . . .”

[5] Adjudication “means a finding by the court . . . that the facts alleged in the petition have been proved.” Utah Code § 80-1­102(3)(a).

[6] Utah Code section 80-1-102(58)(a) defines “neglect” as follows:

[An] action or inaction causing: (i) abandonment of a child . . . ; (ii) lack of proper parental care of a child by reason of the fault or habits of the parent, guardian, or custodian; (iii) 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; (iv) a child to be at risk of being neglected or abused because another child in the same home is neglected or abused; (v) abandonment of a child through an unregulated child custody transfer under Section 78B-24-203; or (vi) educational neglect.

[7] After a dispositional hearing, the juvenile court may award permanent custody and guardianship to a relative if it finds by clear and convincing evidence either abuse or neglect by the natural parent. See Utah Code §§ 80-3-402(1), -405. Mother made additional arguments that the court erred in determining that GH was abused by Father and that Mother had standing to appeal any determinations regarding Father that contributed to a finding that Mother neglected the Children. Because we affirm the juvenile court’s determination that Mother neglected the Children, we do not need to address these arguments.

[8] Mother alleges that when she has asked Grandparents for parent-time, they have refused and told her, “You have no rights.” Mother’s allegations are not part of our appellate record, however.

[9] It is possible for a juvenile court, in an appropriate case, to determine that a parent retaining residual rights is not entitled to any parent-time. But any such determination should be rare and should be supported with findings that demonstrate why it is not reasonable, for example, for the parent to have at least short periods of unsupervised or supervised parent-time.

[10] Utah law provides that “a proceeding for a minor’s case in the juvenile court shall be commenced in the court of the district in which . . . the minor is living or found.” Utah Code § 78A-6­350(1)(b).

[11] Some courts that have decided this issue have held that harm must be shown. See Lamb v. Javed, 692 S.E.2d 861, 864 (Ga. Ct. App. 2010); Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim. App. 2014). But we do not decide this issue and leave it for another day.

[12] Mother asserts that venue rights are so substantial that a denial of a motion to change venue can be grounds for an interlocutory appeal, citing Davis County v. Purdue Pharma, LP, 2020 UT 17, 463 P.3d 619. While this is true, Mother sought no interlocutory appeal here. And other courts have held that failure to immediately appeal a denial of a motion to change venue constitutes a waiver of the venue claim. See, e.g.Patterson v. Alexander & Hamilton, Inc., 844 So. 2d 412, 415 (La. Ct. App. 2003).

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In re K.A.S. – 2023 UT App 138 THE UTAH COURT OF APPEALS STATE OF UTAH, IN THE INTEREST OF K.S., A PERSON OVER EIGHTEEN YEARS OF AGE.

STATE OF UTAH, Appellee, v. K.S., Appellant. Opinion No. 20210291-CA Filed November 16, 2023 Third District Juvenile Court, Salt Lake Department The Honorable Mark W. May No. 1108274 Monica Maio, Marina Pena, Sam Pappas, and Hilary Forbush, Attorneys for Appellant Sean D. Reyes and Jeffrey S. Gray, Attorneys for Appellee JUDGE RYAN D. TENNEY authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and DAVID N. MORTENSEN concurred.

TENNEY, Judge:

¶1        K.S., a minor, spent several weeks babysitting the infant child of some family members while they were at work. When the infant’s parents returned home one day, the infant was in pronounced distress. The infant was taken to the hospital, but she died a few days later.

¶2        K.S. was charged in juvenile court with having committed child abuse homicide. At the close of trial, the juvenile court found that K.S. had committed the crime and adjudicated K.S. delinquent as a result. K.S. now appeals that adjudication, arguing that there was insufficient evidence to support it. For the reasons set forth below, we affirm.

BACKGROUND

¶3        A.M., a four-month-old infant, died on May 10, 2019. Several medical experts later testified that the cause of death was a brain injury and that the fatal injury was likely inflicted in a non-accidental manner. The question at the heart of this case is who inflicted the fatal injury.

¶4        A.M.’s parents (Mother and Father) both worked and needed someone to watch their two children (A.M. and a two-year-old son) during the day. After an arrangement with a previous babysitter fell through, Mother and Father learned that K.S., the 16-year-old son of Mother’s cousin, was available to babysit. Although K.S. had no prior child-care experience, he began watching the children in April 2019. Because of K.S.’s lack of experience, Father had to teach him the basics of childcare, including how to prepare a bottle, how to change a diaper, and how to calm A.M. down and “hold her correctly.” K.S. frequently stayed overnight to save on gas, sleeping on a couch in the front room.

¶5        On May 2, Mother and Father took A.M. to the emergency room because A.M. had been sick for a few days. On examination, the ER doctor found “nothing worrisome,” and tests indicated that her heart rate, oxygen saturation, and temperature were all “reassuring.” The ER doctor concluded that A.M. “might have a bug” and sent her home. By May 6, A.M. seemed to be “feeling a little better.”

¶6        K.S. slept over at the house on the night of May 6 to 7, and A.M. was “real fussy” that night. According to her parents’ subsequent accounts, though, A.M. was “crying normal[ly]” and even “cheery, smiling, [and] glowing” by the next morning. Mother left for work by 9:30 a.m.[1] Father later testified that he left for work between 8:30 and 8:45 a.m. (though, as will be discussed below, testimony from an officer suggested that Father didn’t actually leave until 10:55 that morning).

¶7        At some point between 11:36 and 11:56 a.m., K.S. sent Mother a video that showed A.M. experiencing troubling symptoms—specifically, A.M. had a limp arm and labored breathing. K.S. texted, “Is this normal?” After viewing the video, Mother asked her sister (Aunt) to stop by on her lunch break to check on A.M.

¶8        Aunt arrived at about 1:20 that afternoon. A.M. seemed “lethargic” to her, and it seemed like “moving her was upsetting her more, almost like it was causing her pain.” Aunt thought that A.M. might have an ear infection, so she gave her some ibuprofen. After returning to work, Aunt told Mother her concern about the ear infection and encouraged Mother to take A.M. to the hospital after Mother’s shift ended. During her own lunch break an hour later, Mother returned home and checked on A.M., who was “fussy and whiney”; when Mother picked A.M. up, she also observed her legs “dangling down.” Mother was concerned enough to schedule an appointment with a pediatrician, but she made lunch and returned to work without taking further action.

¶9        There was no additional contact between K.S. and the parents until around 7:45 that evening, when K.S. called Mother and reported that A.M still didn’t seem to be feeling better. Mother said she was on her way. After picking Father up from his work, Mother arrived home to find A.M. “pale as a light.” Father performed CPR while Mother called 911. Mother told the 911 dispatcher that A.M. had been “fine throughout the day and stuff.”

¶10 A.M. was first taken to the Intermountain Healthcare hospital, then life-flighted to Primary Children’s Medical Center (Primary Children’s). Doctors at Primary Children’s concluded that A.M. had suffered a severe brain injury.

¶11      Police detained Mother and Father for questioning before allowing them to see A.M. While awaiting the arrival of a detective, Father engaged police officers in light-hearted banter, telling them “a story about getting drunk and . . . dancing on the table,” as well as a story about a woman beating up a man in their apartment complex. Mother and Father eventually met with a detective who questioned them about the events of the day. This detective later testified that, during these interviews, Father told him that he had left for work around 10:55 that morning.

¶12      The following day, K.S. sent Father two text messages. The first said: “im so sorry. . . . if it weren’t for my laziness and wanting to relax [A.M.] wouldn’t be like this and if i had never tossed her up in the air to try and cheer her up.” The second said: “im truly sorry plz tell [Mother] im so so so sorry and i would never intentionally hurt your kids out of anger or frustration.”

¶13      A.M. died two days later. Later that week, Dr. Christensen, the medical examiner, performed an autopsy and determined that the “primary cause” of death was “blunt injuries” to A.M.’s head. Dr. Christensen classified the death as a homicide.

¶14 The State subsequently charged K.S. with child abuse homicide in juvenile court. Over the course of eight days of trial, the court heard testimony from, among others, both parents, several medical experts, and the responding officer.

¶15      Mother and Father testified about the events on May 7 and A.M.’s health in the relevant period. Mother testified that A.M. was “pretty fine” and “cheery, smiling, [and] glowing” before she left for work that morning. Father testified that, after a few days of being fussy, A.M. “was feeling a little better” and that there was “nothing out of the ordinary” that morning. Father testified that he remembered leaving home between 8:30 and 8:45 a.m. so that he could catch the bus.

¶16 The court also heard testimony from three medical experts—Dr. Thorn, Dr. Hatch, and Dr. Christensen—about the nature of A.M.’s injuries and the timing of those injuries.

¶17 Dr. Thorn. Dr. Thorn was an ER doctor who had “extensive training and expertise specialization in the management of head injury,” and he was the doctor who treated A.M. on May 7 at the Intermountain Healthcare hospital. Dr. Thorn testified that A.M.’s symptoms likely resulted from “non-accidental trauma,” which “is a nice way of saying a child . . . was physically abused.” Dr. Thorn also testified that A.M.’s injuries would have required the application of “[e]xtremely violent” force, though he opined that it might have been “possible” that a person might not have “recognize[d] the severity” of the injury that he or she had inflicted.

¶18      On a CAT scan, Dr. Thorn observed two layers of blood in A.M.’s brain, which suggested to him that A.M. had sustained “at least two” discrete injuries. He estimated that the earlier of the two injuries occurred “within days” to “maybe a week” before May 7. Dr. Thorn speculated that the symptoms that prompted A.M.’s visit to the hospital on May 2 had come from the first brain injury, but he acknowledged that “[w]e’ll never know.” With respect to the injuries that led to A.M.’s death, Dr. Thorn testified that the “most severe injury leading eventually to the death” happened anywhere from “sometime within hours” to “almost right before” the video that was taken on May 7. He further testified that there was “some event soon before arrival [at the ER] that had caused” A.M.’s “respiratory depression.” Dr. Thorn felt unable to narrow the timeframe any further, and he expressed doubt that any doctor “would be able to comment as to a more definitive timeframe.” Dr. Thorn also testified that A.M. “was very, very sick at the time that that video was taken.”[2]

¶19 Dr. Hatch. Dr. Hatch was a recent medical school graduate who was completing a post-residency fellowship in child abuse pediatrics at the University of Utah, and he was part of the team that treated A.M. at Primary Children’s. Dr. Hatch testified that it would have required a significant amount of force to cause A.M.’s symptoms, such as “shaking by itself” or shaking combined “with some form of impact, or impact by itself.” He added that “we don’t observe these kinds of injuries from falls” or even from “significant” car accidents. In Dr. Hatch’s view, A.M.’s symptoms “suggest[ed]” that A.M. had “experienced significant force to her head.” He also opined that anyone who was present when the injuries were inflicted “would know that the force was excessive and that an injury was likely” to follow.

¶20 Dr. Hatch thought there were two potentially plausible explanations for the two layers of blood in A.M.’s brain: he thought it was possible that the blood represented two different injuries that were separated by time, and he also thought it was possible that the blood represented a single injury where some of the blood had changed colors when it mingled with cerebral spinal fluid. Thus, in Dr. Hatch’s opinion, A.M. was definitely injured on May 7, and it was possible that she had suffered an earlier brain injury as well.

¶21      As to the question of timing of the May 7 injury, Dr. Hatch testified that “the head injury immediately preceded the development of any symptoms that [A.M.] had. So in this situation where she became unconscious, the injury would immediately precede that.” Continuing, Dr. Hatch testified that the “medical literature would support that in almost all cases with this severe of an injury,” the resulting symptoms would appear “immediately afterward.”

¶22 Dr. Christensen. Dr. Christensen is the chief medical examiner for the Utah Department of Health and, as noted, performed A.M.’s autopsy. Dr. Christensen testified that A.M. had suffered a “traumatic” “axonal injury” to her brain and that the injury was “not consistent with having occurred accidentally.” In his view, the force involved would have been “noticeably violent.”

¶23      Like Dr. Thorn, Dr. Christensen saw signs of both an earlier and a later injury. Dr. Christensen agreed that “some of [A.M.’s] prior symptoms”—including the nausea that led to her May 2 visit to the hospital—could have been “related to a prior head injury.” On questioning from the State, however, Dr. Christensen seemed to agree that the later injury was “the ultimately fatal” one.

¶24      Dr. Christensen testified that in “some cases,” fatal injuries can be inflicted as many as three to ten days before the child actually dies. But Dr. Christensen explained that doctors look to “other aspects of the case as well” when estimating the time at which the injuries were inflicted, such as “what was the child’s behavior at various points along the way.” He said that in this case, he thought the fatal injury “occurred around the time” that A.M. arrived at the hospital. He also testified that with “traumatic axonal injury, you would expect [A.M.] to be symptomatic essentially immediately. I mean very, very quickly. It’s not going to be the kind of thing where she is going to be normal for a few hours . . . . It’s a global insult to the brain that is going to manifest as . . . abnormal behavior very soon after infliction.”

¶25      After the conclusion of the trial, the court entered a single-sentence ruling determining that the State had met its burden of proving that K.S. committed child abuse homicide. K.S. timely appealed.

ISSUE AND STANDARD OF REVIEW

¶26      K.S. argues there was insufficient evidence to support his adjudication for child abuse homicide. In cases tried without a jury (which include juvenile court proceedings), factual determinations “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.” Utah R. Civ. P. 52(a)(4); cf. In re Z.D., 2006 UT 54, ¶ 29, 147 P.3d 401 (holding that an “appellate court must launch any review of factual findings from rule 52(a) of the Utah Rules of Civil Procedure and its ‘clearly erroneous’ test”). “The content of Rule 52(a)’s clearly erroneous standard, imported from the federal rule, requires that if the findings (or the trial court’s verdict in a criminal case) are against the clear weight of the evidence, or if the appellate court otherwise reaches a definite and firm conviction that a mistake has been made, the findings (or verdict) will be set aside.” State v. Walker, 743 P.2d 191, 193 (Utah 1987) (quotation simplified).

¶27 The parties agree that we should apply the above-cited standard of review to this case. We pause here to note, however, that the parties have disputed whether we should apply an additional layer of deferential gloss in this case as well.

¶28 It’s well-settled that when an appellate court reviews a jury’s verdict, the court views the evidence and all reasonable inferences in the light most favorable to the verdict. See, e.g.State v. Green, 2023 UT 10, n.2, 532 P.3d 930; State v. Bonds, 2023 UT 1, n.3, 524 P.3d 581; State v. Winfield, 2006 UT 4, ¶ 2, 128 P.3d 1171. But there’s a divergence in Utah’s caselaw about whether an appellate court does the same when reviewing a verdict from a bench trial. On this, some Utah cases say no. See, e.g.In re Z.D., 2006 UT 54, ¶ 35 (“An appellate court must indulge findings of fact made by a jury that support the verdict. No such indulgence is required of findings made by a judge.”); Alta Indus. Ltd. v. Hurst, 846 P.2d 1282, 1284 n.2 (Utah 1993) (holding that “an appellate court does not, as a matter of course, resolve all conflicts in the evidence in favor of the appellee” when findings were made by a judge); Walker, 743 P.2d at 193 (noting that “it is not accurate to say that the appellate court takes that view of the evidence that is most favorable to the appellee” when reviewing findings of the court (quotation simplified)). But other Utah cases—including some from our court that reviewed adjudications from juvenile court delinquency proceedings—say yes. See, e.g.State v. Layman, 1999 UT 79, ¶¶ 12–13, 985 P.2d 911 (holding that when “reviewing a conviction, an appellate court should consider the facts in a light most favorable to the verdict,” and then applying that standard to a ruling from “the trial judge, who was the finder of fact” in the bench trial at issue); In re J.R.H., 2020 UT App 155, ¶ 9, 478 P.3d 56 (applying the “light most favorable” standard to a juvenile court adjudication (quotation simplified)); In re V.T., 2000 UT App 189, ¶ 8, 5 P.3d 1234 (relying on Layman for the proposition that “[w]hen reviewing a juvenile court’s decision for sufficiency of the evidence, we must consider all the facts, and all reasonable inferences which may be drawn therefrom, in a light most favorable to the juvenile court’s determination”); see also In re C.C.R., 2011 UT App 228, ¶ 10, 257 P.3d 1106; In re M.B., 2008 UT App 433, ¶ 5, 198 P.3d 1007.

¶29      We need not resolve this conflict here. Again, the parties at least agree that K.S. can only prevail on his sufficiency challenge if he establishes that the verdict was against the clear weight of the evidence, or, instead, if we reach a definite and firm conviction that a mistake has been made. And the parties further agree that we give “due regard” to the juvenile court’s opportunity to “judge the credibility of witnesses.” Utah R. Civ. P. 52(a)(4). For the reasons set forth below, we affirm the juvenile court’s adjudication under these agreed-upon standards alone. We accordingly leave for another day (and, more likely, another court) the question of how to resolve the tension in the cases about whether the additional deferential gloss that applies to jury verdicts should apply to juvenile court decisions as well.

ANALYSIS

¶30      K.S. argues there was “insufficient evidence that [he], as opposed to someone else, caused the injuries that resulted in A.M.’s death.” We disagree.

¶31      The State’s case against K.S. relied on the interplay between three propositions: (i) A.M. died from an injury to her brain that was caused by violent force; (ii) A.M.’s symptoms would have manifested very quickly after the injury was inflicted; and (iii) K.S. was alone with A.M. immediately prior to the symptoms’ initial appearance. There was competent testimony to support each of these propositions.

¶32 Injury. All three medical experts agreed that A.M. died from a brain injury that was caused by violent force. Dr. Thorn testified that A.M.’s injury would have been caused by “[e]xtremely violent” force or a “violent, blunt act,” such as the “shaking back and forth of a child’s brain.” In his view, this was “not an accidentally dropped child.” Dr. Hatch similarly testified that a significant amount of force would have been required, either “shaking by itself,” or shaking combined “with some form of impact,” or “impact by itself.” He added that doctors “don’t observe these kinds of injuries from falls” or even from “significant” car accidents. Dr. Hatch believed anyone “who witnessed an incident like this occur would know that the force was excessive and that an injury was likely” to follow. Finally, Dr. Christensen testified that the injury was “not consistent with having occurred accidentally” and that the force involved would have been “noticeably violent.”

¶33 Timing of symptoms. There was also testimony from medical experts that A.M.’s symptoms would have manifested very quickly after the force that caused the fatal injury. Dr. Hatch testified that “the head injury immediately preceded the development of any symptoms that [A.M.] had” and that the “medical literature would support that in almost all cases with this severe of an injury,” the resulting symptoms would appear “immediately afterward.” Dr. Christensen similarly testified that with “traumatic axonal injury, you would expect [A.M.] to be symptomatic essentially immediately.” He added: “It’s not going to be the kind of thing where she is going to be normal for a few hours . . . . It’s a global insult to the brain that is going to manifest as . . . abnormal behavior very soon after infliction.”[3]

¶34 K.S. was alone with A.M. Finally, there was testimony establishing that K.S. was alone with A.M. immediately before the symptoms’ initial appearance. Mother and Father both testified that A.M. was in good health that morning. Father stated that after a few days of being fussy, A.M. was “feeling a little better” and that there was “nothing out of the ordinary.” Mother also testified that A.M. was “cheery, smiling, [and] glowing” that morning.

¶35      Mother left for work by 9:30 a.m., and at trial, Father testified that he left for work between 8:30 and 8:45 a.m. (though there was some suggestion that he may have left at 10:55 a.m.). At some point between 11:36 and 11:56 that morning, K.S. sent Mother a video showing A.M. with limp limbs and having difficulty breathing.

¶36      The collective import of these propositions is clear. Since K.S. was alone with A.M. for at least a half hour (if not several hours) before A.M.’s symptoms appeared, and since two medical experts testified that A.M.’s symptoms would have appeared very quickly (if not immediately) after the infliction of the injury, it stands to reason that K.S. caused the fatal injury. This would provide a basis to sustain the adjudication.[4]

¶37 K.S. nevertheless argues that there was insufficient evidence to support the adjudication because of various problems with the above evidence and with other aspects of the State’s case. While we certainly agree that there was conflicting evidence on certain points, the problems that K.S. identifies are not so conclusive that we can overturn the adjudication as a result.

¶38      Much of K.S.’s argument is focused on ambiguities in the record about the critical question of timing. K.S. points out that while Dr. Christensen opined that the symptoms likely manifested soon after the injury, Dr. Christensen also acknowledged that “those things”—apparently meaning medical conclusions about the time at which an injury occurred—“are not precise.” K.S. also relies heavily on Dr. Thorn’s testimony that the injury could have occurred anywhere from “almost right before” the symptoms appeared to “hours” earlier. And K.S. further points to Dr. Thorn’s testimony that he didn’t think “you could find anyone else that would be able to comment as to a more definitive timeframe.”

¶39 But when Dr. Thorn opined that he didn’t think that “anyone else” could provide “a more definitive timeframe,” Dr. Thorn was mistaken. As discussed, the State called two medical experts—Dr. Christensen and Dr. Hatch—who each testified under oath that they thought that A.M.’s symptoms would have appeared very quickly (if not immediately) after the fatal injury was inflicted. And to the extent that there was any conflict between the experts’ conclusions on this, the juvenile court was in a better position than we are to determine which version to believe. See, e.g.In re M.M., 2023 UT App 95, ¶ 35 n.9, 536 P.3d 102, petition for cert. filed, October 25, 2023 (No. 20230944) (recognizing that it “is the role of the juvenile court, not this court, to assess the weight and credibility of expert witnesses and to choose among their testimonies” (quotation simplified)); Knowlton v. Knowlton, 2023 UT App 16, ¶ 59 n.13, 525 P.3d 898 (noting that a trial court “is in the superior position to assess the weight of evidence,” including questions about which expert’s testimony to accept), cert. denied, 531 P.3d 730 (Utah 2023); Woodward v. Lafranca, 2016 UT App 141, ¶ 13, 381 P.3d 1125 (noting that a “fact-finder is in the best position to judge the credibility of witnesses and is free to disbelieve their testimony, even if that testimony comes from an expert witness” (quotation simplified)).

¶40      K.S. also points to testimony showing that Mother left for work by 9:30 a.m., as well as testimony that Father told a detective that he didn’t leave until 10:55 that morning. Since K.S. maintains that the window in which the injury could have been inflicted was several hours long, K.S. posits that Mother or Father could have inflicted the injury before they left for work. But again, on the question of timing, Dr. Christensen and Dr. Hatch both spoke of symptoms appearing very quickly after the fatal injury was inflicted. This testimony, alone, undermines this theory, and the juvenile court was entitled to credit it.

¶41 And there are other problems with this theory too. After all, K.S.’s suggestion that Mother or Father caused the injury that morning or overnight is at odds with their sworn testimonies. Again, both of them testified under oath that A.M. was healthy when they left the house. And it also seems possible (if not probable) that K.S. would have noticed something if Mother or Father had used violent force against A.M. that morning—after all, he’d spent the night there and was at the house all morning. But K.S. never claimed to have heard or witnessed either parent injuring A.M. earlier that day. Thus, to have accepted this theory, the court would have had to discredit the injury-to-symptoms chronology testimony of two medical experts, disbelieve the testimonies of Mother and Father, and then infer that Mother or Father had used violent force against A.M. without K.S. noticing or deciding to comment on it.

¶42 K.S. also points to evidence suggesting that A.M. had sustained a prior brain injury sometime before May 7, and he then argues that this prior injury might have been responsible for A.M.’s death. But while Dr. Christensen and Dr. Thorn both believed that A.M. had suffered multiple injuries, Dr. Hatch thought it was possible that there weren’t two injuries at all. Regardless, even assuming that the earlier injury did occur, K.S. could have inflicted that injury too given that he’d been babysitting for weeks. And more to the point, Dr. Christensen testified that the earlier injury wasn’t the cause of death. Dr. Christensen explained that both the earlier injury and the later injury had caused “subdural hemorrhage[s]” but that a subdural hemorrhage “didn’t ultimately lead directly to the child’s death.” Instead, Dr. Christensen testified that “diffuse axonal injury” in the brainstem created “respiratory compromise” that led to “brain swelling and ultimately death.” And when the prosecutor asked Dr. Christensen whether the “fatal” or “ultimately fatal” injury occurred close in time to A.M. arriving at the hospital, Dr. Christensen agreed with the State’s timeline. He reiterated that after the infliction of the “traumatic axonal injury,” which he had previously identified as the ultimate cause of death, symptoms would appear “essentially immediately.”[5]

¶43                Finally, K.S. points to various problems with the version of

events offered by Mother and Father, including Mother’s decision not to take the baby to the hospital that afternoon, Father’s seemingly odd storytelling while waiting for detectives that night, and certain discrepancies between the parents’ initial statements to officers and their testimonies at trial. We’ve reviewed the record and acknowledge the potential problems identified by K.S. But these problems all go to the perceived credibility (or lack thereof) of Mother and Father, particularly as it relates to their sworn testimonies that they did not injure their child. Our supreme court, however, has directly cautioned the appellate courts to avoid second-guessing lower courts about credibility issues like these. As the court explained in In re Z.D.:

Appellate courts are removed temporally and geographically from trial courts. They do not see juries impaneled or oaths administered to witnesses. They do not view first-hand witnesses’ “tells” of posture, inflection, or mood that strengthen or erode credibility. It is the lot of appellate judges to take their sustenance from the printed page; to peer into the facts as deeply as the flat plane of paper will permit. By the time the trial transcript reaches the hands of the appellate judge, the universal adjective describing its condition is “cold.”

2006 UT 54, ¶ 24, 147 P.3d 401. It’s of course possible that the court could have chosen to disbelieve the testimonies of Mother and Father. But given its adjudication, it’s clear that the court did accept their accounts (or, at least, those portions that suggested that it was K.S., not Mother or Father, who inflicted the fatal injury on A.M.). Without something more, it’s not our place to second-guess that determination.

¶44      In short, this evidentiary picture could certainly have been clearer, and we do see this as something of a close case. But the fact that it’s a close case is the reason we shouldn’t overturn this adjudication. In In re Z.D., our supreme court stressed that 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 the court’s intercession. It must forebear disturbing the ‘close call.’” Id. ¶ 33. And again, under even the standard of review that both parties agree on, K.S. must convince us that the verdict was against “the clear weight of the evidence,” or, instead, we must be left with “a definite and firm conviction that a mistake has been made.” State v. Walker, 743 P.2d 191, 193 (Utah 1987) (emphases added, quotations otherwise simplified).

¶45      On this record, the juvenile court could have sided with K.S. based on certain evidence about the timing of the injuries and who was around A.M. during a potentially relevant window. But the State’s narrower view of the timing window was backed by two medical experts, and its view of who was where and when was backed by sworn testimony as well. And under the State’s evidence, K.S. was the only person who could have caused the fatal injury.

¶46      Unlike members of this court, the juvenile court observed the relevant testimony firsthand. As a result, it was in a better position than we are to evaluate the credibility of that testimony and make determinations about the key facts. While K.S. has highlighted some problems with the State’s case, we don’t see those problems as being so pronounced that the court’s decision was against the clear weight of the evidence, nor are we left with a definite and firm conviction that a mistake has been made. We accordingly see no basis for overturning this adjudication.

CONCLUSION

¶47 There was sufficient evidence to support the juvenile court’s adjudication that K.S. committed child abuse homicide. The adjudication is therefore affirmed.

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

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

In re A.S.G.-R. – 2023 UT App 126

THE UTAH COURT OF APPEALS

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

A PERSON UNDER EIGHTEEN YEARS OF AGE.

G.R.,

Appellant,

v.

STATE OF UTAH AND E.G.,

Appellees.

Opinion No. 20220645-CA

Filed October 19, 2023

Fourth District Juvenile Court, Provo Department

The Honorable D. Scott Davis

No. 1196726

Alexandra Mareschal and Julie J. Nelson,

Attorneys for Appellant

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

Peterson, Attorneys for Appellee State of Utah

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

Martha Pierce, Guardian ad Litem

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

concurred.

HARRIS, Judge:

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

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

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

BACKGROUND[1]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ISSUES AND STANDARDS OF REVIEW

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

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

ANALYSIS

I

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

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

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

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

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

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

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

II

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

A

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

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

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

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

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

1

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

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

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

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

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

2

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

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

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

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

¶52      “Before we may overrule one of our precedents, we must engage in the two-part exercise required by our supreme court in such situations.” Id. ¶ 45. “First, we must assess the correctness of the precedent, and specifically examine the persuasiveness of the authority and reasoning on which the precedent was originally based.” Id. (quotation simplified). “Second, we must assess the practical effect of the precedent, including considerations such as the age of the precedent, how well it has worked in practice, its consistency with other legal principles, and the extent to which people’s reliance on the precedent would create injustice or hardship if it were overturned.” Id. (quotation simplified). Both parts of the test must be satisfied before we may overrule a precedent. See id. In this case, we need not discuss the second part because, in our view, the first one is not satisfied.

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

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

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

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

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

B

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

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

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

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

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

CONCLUSION

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

¶64 Affirmed.

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

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

In re H.M. – 2023 UT App 122

THE UTAH COURT OF APPEALS

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

PERSONS UNDER EIGHTEEN YEARS OF AGE.

G.B.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20220774-CA

Filed October 13, 2023

First District Juvenile Court, Logan Department

The Honorable Kirk M. Morgan

No. 1187751

Julie J. Nelson and Alexandra Mareschal,

Attorneys for Appellant

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

Peterson, Attorneys for Appellee State of Utah

Jonathan P. Thomas, Attorney for Father

Martha Pierce, Guardian ad Litem

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

TENNEY, Judge:

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

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

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

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

BACKGROUND

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

Allegations of Abuse from 2015 Through 2020[1]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Protective Supervision Services Case

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

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

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

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

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

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

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

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

Mother’s Allegations Against Father Resume

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

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

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

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

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

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

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

Termination Proceedings

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

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

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

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

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

Trial

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

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

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

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

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

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

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

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

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

Termination Decision

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

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

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

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

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

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

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

ISSUES AND STANDARDS OF REVIEW

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

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

ANALYSIS

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

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

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

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

  1. Present-Tense Best Interest of the Children

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  1. Supervised Visitation

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

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

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

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

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

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

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

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

III. Mother’s Additional Arguments

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

  1. Adoption

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

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

  1. “Piling On”

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

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

  1. Mandatory Reporting

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

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

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

CONCLUSION

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

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


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

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

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

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

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

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

2023 UT App 95

THE UTAH COURT OF APPEALS

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

A PERSON UNDER EIGHTEEN YEARS OF AGE.

A.M.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20220624-CA

Filed August 24, 2023

Second District Juvenile Court, Ogden Department

The Honorable Jeffrey J. Noland

No. 1140984

Emily Adams, Sara Pfrommer, and Hannah K.

Leavitt-Howell, Attorneys for Appellant

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

Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

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

 

CHRISTIANSEN FORSTER, Judge:

 

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

BACKGROUND[1]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ISSUES AND STANDARDS OF REVIEW

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

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

ANALYSIS

I. Reunification Services

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

II. Strictly Necessary

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

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

¶34      When evaluating whether termination is strictly necessary,

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

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

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

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

CONCLUSION

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

In re K.R. – 2023 UT App 75

 

THE UTAH COURT OF APPEALS

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

PERSONS UNDER EIGHTEEN YEARS OF AGE.

R.S.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Per Curiam Opinion

No. 20230255-CA

Filed July 13, 2023

Third District Juvenile Court, Salt Lake Department

The Honorable Monica Diaz

No. 1207437

Kelton Reed and Lisa Lokken

Attorneys for Appellant

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

Verdoia, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

Before JUDGES MICHELE M. CHRISTIANSEN FORSTER, DAVID N.

MORTENSEN, and AMY J. OLIVER.

PER CURIAM:

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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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.

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[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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2023 UT App 55 – In re F.C.G.

2023 UT App 55 – In re F.C.G.

THE UTAH COURT OF APPEALS

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

A PERSON UNDER EIGHTEEN YEARS OF AGE.

L.C.G.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Per Curiam Opinion

No. 20221129-CA

Filed May 25, 2023

Third District Juvenile Court, Salt Lake Department

The Honorable Monica Diaz

No. 1205462

Julie J. Nelson Attorney for Appellant

Sean D. Reyes and John M. Peterson,

Attorneys for Appellee

Martha Pierce Guardian ad Litem

Before JUDGES GREGORY K. ORME,

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

PER CURIAM:

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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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.K. – 2023 UT App 14 – Abuse and Neglect Adjudication

In re K.K. – 2023 UT App 14

THE UTAH COURT OF APPEALS

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

PERSONS UNDER EIGHTEEN YEARS OF AGE.

B.K.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20220051-CA

Filed February 9, 2023

Second District Juvenile Court, Farmington Department

The Honorable Sharon S. Sipes

No. 1176751

Scott L. Wiggins, Attorney for Appellant

Sean D. Reyes, John M. Peterson, and Candace

Roach, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,

in which JUDGE GREGORY K. ORME concurred. JUDGE RYAN M.

HARRIS concurred, with opinion.

CHRISTIANSEN FORSTER, Judge:

¶1        This is a companion case to and arises out of the same facts involved in In re K.K., 2023 UT App 13, which also issues today. In short,[1] B.K. (Mother) and D.K. (Father) are the parents of triplets K.K., S.K., and S.K. (collectively, the Children). When the Children were six years old, the State filed a petition for custody and guardianship on the grounds that the Children were neglected and abused by Mother and Father. The underlying facts giving rise to the petition were multiple acts of domestic violence, culminating in a physical and boisterous verbal altercation between the couple that occurred on June 22, 2021, and that took place in front of the Children and other witnesses.

¶2        Following an adjudication trial on the petition, during which the juvenile court heard testimony from Mother, Father, two neighbors who had witnessed the June 22 altercation, and two police officers who had responded to the neighbors’ 911 calls regarding the June 22 altercation, the court issued an order adjudicating the Children neglected and abused as to Mother.

¶3        In the adjudication order, the court found, among other things, that Mother and Father had engaged in numerous acts of domestic violence, some of which had occurred in the presence of the Children, including on June 22; that when Mother and Father fight they sometimes send the Children downstairs to wait with a roommate, which had occurred two or three times that year; that the Children are aware they are sent downstairs because Mother and Father fight; that “[a]ccording to the [C]hildren, [Father] and [Mother] fight and yell and hurt each other’s bodies”; and that “[t]he [C]hildren have experienced domestic violence with enough frequency that they appear calm during incidents between their parents . . . even though the parents ‘fight a lot and hurt’ each other.”

¶4        As to Mother, the court found she was not yelling back at Father during the June 22 altercation but that she did yell at him on another occasion during which officers were dispatched to the house on a “domestic” call. In addition, the court found that Mother “is not concerned” that the Children witness her and Father fight and that her “demeanor and testimony”—including her inability to recall much of what happened on June 22—“is in tune with her desire to protect [Father] rather than address the domestic violence that exists in her home.” Based on these findings, the court concluded that Mother “has failed to protect the [C]hildren from exposure to domestic violence in the home” and that “[Father] and [Mother’s] domestic violence in their home has harmed the[] [C]hildren.”

ISSUES AND STANDARDS OF REVIEW

¶5        Mother now appeals the juvenile court’s neglect and abuse adjudications, asserting the court erred in determining that she neglected and abused the Children. We review the juvenile court’s factual findings deferentially, reversing the court’s findings only if they are clearly erroneous. In re E.R., 2021 UT 36, ¶ 15, 496 P.3d 58. A finding is clearly erroneous when the court either “failed to consider all of the facts or reached a decision against the clear weight of the evidence.” Id. ¶ 32 (quotation simplified). And we review the juvenile court’s underlying legal determinations nondeferentially for correctness. See In re A.B., 2022 UT 39, ¶¶ 27–28.

ANALYSIS

¶6        Mother argues the juvenile court erred in determining that the State had proved by clear and convincing evidence that she neglected and abused the Children “by exposing them to domestic violence.” Clear and convincing evidence is an “intermediate standard of proof” that “implies something more than the usual requirement of a preponderance . . . of the evidence; and something less than proof beyond a reasonable doubt.” Essential Botanical Farms, LC v. Kay, 2011 UT 71, ¶¶ 21, 24, 270 P.3d 430 (quotation simplified). “For a matter to be clear and convincing to a particular mind it must at least have reached the point where there remains no serious or substantial doubt as to the correctness of the conclusion.” In re S.Y.T., 2011 UT App 407, ¶ 42, 267 P.3d 930 (quotation simplified).

¶7        Because neglect and abuse are distinct, with different statutory definitions, we address Mother’s challenge to the juvenile court’s adjudications separately. With regard to Mother’s neglect adjudication, we conclude the court did not err in determining that she neglected the Children. As to the court’s abuse adjudication, we conclude that Mother, like Father, cannot show prejudice resulting from the abuse adjudication where the underlying facts giving rise to both adjudications are the same. Accordingly, we decline to address the merits of Mother’s challenge to the abuse adjudication.

I. Neglect

¶8        To prove that Mother neglected the Children, the State needed to present clear and convincing evidence that Mother’s “action[s] or inaction[s]” caused the Children to experience a “lack of proper parental care . . . by reason of the fault or habits of” Mother or that Mother “fail[ed] or refus[ed] . . . to provide proper . . . care necessary for [the Children’s] health, safety, morals, or well-being.” See Utah Code § 80-1-102(58)(a)(ii)–(iii). Mother argues the juvenile court’s conclusion that she neglected the Children by “‘allowing’ them to be exposed to her abuse at Father’s hands” does not satisfy the statutory definition of neglect. She further contends that the court “engaged in unwarranted assumptions that are contrary to the well-settled notions underlying the Battered Woman Syndrome” by concluding that Mother’s “behavior constituted ‘nonaccidental’ conduct or that her behavior was due to her ‘faults or habits.’” We disagree.

¶9        The evidence presented at trial included testimony from six witnesses who detailed Father and Mother’s history of engaging in domestic disputes with each other and specifically described the altercation that occurred on June 22. The testimony indicated that two of the children were present during the June 22 altercation and were observed “clinging” to Mother outside in the front yard while Father argued with her, punched her, and threw objects at her. One of the officers who responded to the June 22 altercation testified that the two children who had witnessed the altercation “seemed calm” and were not “distraught or flustered at all.”[2] The officers acknowledged they had been called to Mother and Father’s house prior to the June 22 altercation on a “domestic” call after neighbors reported Mother and Father were screaming at each other.

¶10 Mother also testified that on many occasions she tried to prevent the Children from observing her and Father fight. To accomplish this, “as soon as any argument started” she would send the Children downstairs with her roommate, where they would wait until the fight was over. Despite making this effort, Mother testified that she believed the Children were aware they were sent downstairs to avoid hearing any fighting. Moreover, the evidence also showed that Mother repeatedly allowed Father to return home after the court issued a criminal no contact/protective order and that she minimized the severity of the domestic violence. Mother was also largely unwilling to testify at trial about the June 22 altercation, claiming that she had “trouble remembering” much of what happened. Based on this evidence, the juvenile court found, “[Mother] is not concerned that the [C]hildren are subjected to the argument[s] between [Mother] and [Father]. [Mother’s] demeanor and testimony is in tune with her desire to protect [Father] rather than address the domestic violence that exists in her home.”

¶11      As described above, in its adjudication order, the juvenile court made several findings in support of its determination of neglect as to Mother. Those findings address Mother’s ongoing relationship with Father and the violent dynamic of their relationship, Mother’s knowledge that the Children were aware of her fights with Father despite her attempts to shield them from the violence, and Mother’s apparent lack of concern or desire to extricate herself from future interactions with Father. Under Utah law, a parent “ha[s] a statutory duty not to knowingly place [their] child in harm’s way.” In re C.B., 1999 UT App 293, ¶ 9, 989 P.2d 76. By voluntarily returning to the abusive relationship with Father, Mother ignored this duty by “potentially subjecting the [Children] to witness, or be the victim of, further abuse.” See id. Moreover, as discussed in In re C.C.W., 2019 UT App 34, 440 P.3d 749, a parent’s act of domestic violence can have adverse impacts on a child, even if there is no evidence of violence toward the child and even if the child does not directly witness the violence. Relying on “both common sense and expert opinion,” this court recognized that children who are exposed to domestic violence may suffer “direct physical and psychological injuries,” regardless of whether they are physically harmed. Id. ¶¶ 20–21 (quotation simplified). Among other things, children who observe domestic violence “may be taught that violence is an acceptable way to handle issues with loved ones,” which “breeds a culture of violence in future generations. . . . Abused children are at great risk of becoming abusive parents.” Id. ¶ 20 (quotation simplified). Although it is unfortunate that Mother is a victim of domestic violence, her decision to knowingly return to Father and to protect him rather than to protect the Children despite her knowledge that the Children are aware of the abuse in the home satisfies the statutory definition of neglect.

¶12      We recognize that most, if not all, of the domestic violence at issue in this case was committed by Father against Mother and that Mother was therefore often the victim rather than the perpetrator. But under Utah’s statutory definition of neglect, under certain circumstances, even victims of domestic violence can “neglect” their children if they fail to take sufficient steps to protect them from the domestic violence present in the home or if they choose to prioritize their relationship with the perpetrator of the violence over the need to protect their children. After all, neglect can stem from either “action or inaction” on the part of a parent, see Utah Code § 80-1-102(58)(a), as long as the “inaction” in question causes either “lack of proper parental care of a child by reason of the fault or habits of the parent” or “failure or refusal of a parent . . . to provide . . . care necessary for the child’s health, safety, morals, or well-being,” see id. § 80-1-102(58)(a)(ii)–(iii). Here, the juvenile court found that Mother was “not concerned” about protecting the Children from domestic violence and that Mother had a “desire to protect [Father] rather than address the domestic violence that exists in her home.” These findings were supported by substantial evidence presented at trial. And these facts, as found by the court, constitute “neglect” as our legislature has defined that term. In short, Mother’s “inaction” in failing to protect the Children from exposure to domestic violence and prioritizing her toxic relationship with Father resulted in a failure to provide the “care necessary for [the Children’s] health, safety, morals, or well-being” and caused the Children to experience a “lack of proper parental care.” See id.

¶13      Mother resists this conclusion by contending the juvenile court improperly relied on In re C.C.W. for “the proposition that children are harmed by domestic violence in the home.” She asserts the court’s reliance on In re C.C.W. was unwarranted because that case concerned a proceeding to terminate parental rights whereas this case concerns abuse and neglect adjudications. While Mother is correct that the two proceedings are different, those differences do not bear on whether the court could properly rely on the research and studies cited in In re C.C.W. supporting the general proposition that domestic violence is harmful to children. See 2019 UT App 34, ¶ 20. Termination proceedings and abuse and neglect adjudications are both governed by the Utah Juvenile Code, see Utah Code § 80-4-301 (termination of parental rights); id. § 80-3-201 (abuse or neglect proceedings), and the statutory definitions of “neglect,” “abuse,” “harm,” and “threatened harm” are the same in both proceedings, see id. § 80­1-102(1), (37), (58)(a), (92) (providing definitions applicable to provisions of Title 80, Utah Juvenile Code). Accordingly, it does not follow that the court may properly consider the effect of domestic violence in finding neglect in one proceeding but not the other.

¶14      In addition, Mother asserts that the juvenile court “rel[ied] on the unfounded presumption that Mother’s decision to maintain a relationship with Father constituted a conscious failure to protect the Children from exposure to domestic violence.” In so doing, Mother posits that the juvenile court ignored the directive offered in In re C.C.W. cautioning courts “to avoid unnecessarily drawing negative inferences from a battered spouse’s decision to maintain a relationship with the batterer, or from a battered spouse’s decision to decline to immediately seek help.” See 2019 UT App 34, ¶ 19 n.4. But that is not what happened here.

¶15      In this case, the juvenile court analyzed the evidence before it in adjudicating Mother for neglect. Thus, the court’s conclusion was not based on an unfounded presumption. As previously discussed, the evidence the court considered included testimony that Father had engaged in multiple acts of domestic violence in the presence of the Children. And based on Father’s multi-year track record of assaulting Mother, even after services were provided to him, the court could reasonably conclude that Father is likely to continue perpetrating acts of domestic violence against Mother in the future and that the Children will continue to be exposed to the violence if Mother fails to take action. In short, the court’s determination that Mother failed to provide the proper care for the Children’s health, safety, morals, or well-being by failing to protect them and prioritizing her relationship with Father was based on the evidence presented at trial and not on an unwarranted presumption.

¶16      Finally, Mother misconstrues the directive offered in In re C.C.W. cautioning courts to “avoid unnecessarily drawing negative inferences from a battered spouse’s decision to maintain a relationship with the batterer.” See id. Mother contends that by adjudicating her for neglect, the juvenile court made an “automatic determination that both the batterer and victim are responsible as a unit,” which in turn results in the victim being blamed for the domestic violence. While we are sympathetic to Mother and acknowledge that extricating oneself from an abusive relationship can often prove difficult, see In re L.M., 2019 UT App 174, ¶ 9, 453 P.3d 651 (per curiam); In re C.C., 2017 UT App 134, ¶¶ 46–48, 402 P.3d 17 (Christiansen, J., concurring), we cannot say that a parent’s status as a domestic violence victim excuses the parent’s duty to protect the children or provides the parent with license to elevate the relationship with the abuser over the safety of the children. Indeed, the directive offered in In re C.C.W. merely cautions courts to “avoid unnecessarily drawing negative inferences” about a victim’s decision to stay in an abusive relationship. 2019 UT App 34, ¶ 19 n.4. It does not prevent the court from considering domestic violence issues in their entirety, nor does it provide absolution for a parent who continues to expose a child to domestic violence. To find otherwise would be contrary to precedent. See, e.g.In re L.M., 2019 UT App 174, ¶ 8 (“A parent who maintains a relationship with an abusive partner jeopardizes a child’s safety.”); In re T.M., 2006 UT App 435, ¶ 20, 147 P.3d 529 (collecting cases and observing that “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”).

¶17      Accordingly, we affirm the court’s neglect adjudication.

II. Abuse

¶18      The juvenile court determined that Mother both neglected and abused the Children by failing to protect them from exposure to domestic violence and that Father and Mother’s “domestic violence in their home has harmed the[] [C]hildren.” Mother argues the court’s abuse adjudication was in error because the State failed to produce clear and convincing evidence of abuse as it is statutorily defined. See Utah Code § 80-1-102(1)(a)(i)(A)–(B), (37)(a)–(b) (defining abuse as including “nonaccidental harm of a child” and “threatened harm of a child” and defining harm as “physical or developmental injury or damage” and “emotional damage that results in a serious impairment in the child’s growth, development, behavior, or psychological functioning”). Mother raises a fair point that other than applying the general principles set forth in In re C.C.W. to infer harm, the State did not present specific evidence that the Children had sustained harm, and the court made no specific findings—other than that the Children appeared calm during incidents of domestic violence between their parents—that the Children were developmentally harmed or suffered the sort of emotional damage that constituted serious impairment to their growth, development, behavior, or psychological functioning.[3]

¶19      But even if we were to agree with Mother that the juvenile court erred in adjudicating the Children as abused as to Mother, Mother cannot show she was prejudiced by any such error. See In re N.M., 2018 UT App 141, ¶ 27, 427 P.3d 1239 (“An error is prejudicial only if a review of the record persuades the appellate court that without the error there was a reasonable likelihood of a more favorable result for the appellant.” (quotation simplified)); In re. J.B., 2002 UT App 268, ¶¶ 8–12, 53 P.3d 968 (affirming the termination of a father’s parental rights despite the juvenile court’s reliance on improper findings because such reliance did not result in “prejudicial error”). Mother claims that being labeled an abuser “negatively affect[s] her ability—going forward—to perform the primary caretaking responsibilities to [the] Children.” But Mother does not demonstrate how the court’s abuse adjudication will affect her more severely or more negatively as this case proceeds than the neglect adjudication will. See In re G.B., 2022 UT App 98, ¶ 34, 516 P.3d 781 (declining to reach the merits of a challenge to an abuse adjudication where the parent did not challenge a neglect adjudication based on the same facts because the parent did not demonstrate that the abuse adjudication carried “some collateral consequences . . . that [did] not follow from a neglect determination”). Indeed, post-adjudication dispositions turn on the factual circumstances that bring a family into court rather than on the category of adjudication and are implemented based on concern for the child’s health and safety and remedying the underlying issues resulting in the adjudication. See Utah Code § 80-3-405. Here, as found by the juvenile court, whether her inaction is labeled as abuse or neglect, Mother failed to protect the Children from exposure to domestic violence and prioritized her relationship with Father over the well-being of the Children. The services that will be offered to Mother and the Children to remedy these circumstances are not likely to differ based on whether the adjudication is for neglect or abuse. We agree with the guardian ad litem’s assertion that “any or all three categories of adjudication (abuse, neglect, dependency) trigger the same dispositional provisions.” Accordingly, because Mother has not demonstrated how the court’s abuse adjudication will affect her any differently than the neglect adjudication, she cannot show prejudice.[4] See In re K.K., 2023 UT App 13, ¶ 28 (concluding, based on the same facts as the current case, that Father could not show prejudice stemming from the court’s abuse adjudication because the abuse adjudication was based on the same underlying facts supporting the neglect adjudication).

CONCLUSION

¶20 We are cognizant that Mother is a victim of domestic violence, not a perpetrator. Nevertheless, the primary purpose of the State’s petition alleging neglect was to protect the Children, not to punish Mother. Based on the foregoing, we conclude the evidence presented by the State was sufficient to support the juvenile court’s neglect adjudication as to Mother. And even if the juvenile court erred in its abuse adjudication, Mother has not persuaded us that she was prejudiced by any such error because she has not shown how she will be negatively affected by the abuse adjudication over and above the effect of her neglect adjudication. Accordingly, we affirm.

_____________

HARRIS, Judge (concurring):

¶21      I concur fully in the majority opinion. I write separately to offer a word of caution to juvenile courts when it comes to finding that a parent who is a victim of domestic violence has “abused” or “neglected” his or her children by allowing them to be exposed to domestic violence in the home. In my view, Utah’s statutory definitions of the terms “abuse” and “neglect” are broad enough to make it possible, in certain situations, for courts to determine that a domestic violence victim has committed abuse or neglect. But courts should exercise caution in doing so, and should make these rather striking findings only in appropriate cases.

¶22 With regard to neglect, we hold today that the juvenile court’s determination was appropriate in this case, because Mother’s “inaction” in failing to protect the Children from the domestic violence occurring in the home constituted a lack of proper parental care, as well as a failure to provide care necessary for the Children’s health, safety, or well-being. See supra ¶¶ 8–16; see also Utah Code Ann. § 80-1-102(58)(a)(ii)–(iii) (LexisNexis Supp. 2022). In my view, the key to affirming this determination, in this case, was the court’s finding that Mother had prioritized her relationship with her abuser over the safety and well-being of the Children. Evidence presented at trial indicated that Mother repeatedly allowed Father to return to the home despite the existence of protective orders making it unlawful for him to be there, and that she was less than fully cooperative with DCFS and law enforcement officials who were investigating the situation. This sort of evidence, to my way of thinking, is critical to any determination that a domestic violence victim has neglected his or her children. Absent evidence like this, domestic violence victims will likely not have committed actions or inactions significant enough to constitute “neglect” of their children.

¶23      And given the differing statutory definitions, it is even more difficult for domestic violence victims to be considered to have “abused” their children than it is for them to be considered to have “neglected” their children. The statutory definition of “abuse” is (justifiably) narrower than the statutory definition of “neglect.” In order to find that abuse has occurred, a court in most cases (that is, in cases not involving sexual exploitation, sexual abuse, human trafficking, or the child’s death) must find either (a) “nonaccidental harm of a child” or (b) “threatened harm of a child.” See id. § 80-1-102(1)(a)(i)(A), (B); see also In re K.T., 2017 UT 44, ¶ 9, 424 P.3d 91 (“To find abuse under Utah law, a court must find harm.”).

¶24 A finding that a child has sustained nonaccidental harm involves a backward-looking determination, one that must be supported by evidence that the child has already been harmed. And the kind of harm at issue—according to strict statutory definition—must be either “physical or developmental injury or damage” or the sort of “emotional damage that results in a serious impairment in the child’s growth, development, behavior, or psychological functioning.” See id. § 80-1-102(37)(a), (b). I can envision a court, in many cases, being able to make a finding of physical harm without the necessity of expert testimony, but in my view a finding of already-sustained “developmental injury or damage” or emotional damage severe enough to cause “a serious impairment in the child’s growth, development, behavior, or psychological functioning” will often require expert testimony. I think this will nearly always be the case where the question presented is whether a child has already sustained non-physical “harm” as a result of a victim parent failing to protect the child from violence in the home.

¶25      A finding that a child has sustained “threatened harm” is— by contrast—more of a forward-looking inquiry, under the applicable statutory definition. As our legislature has defined it in this context, “threatened harm means actions, inactions, or credible verbal threats, indicating that the child is at an unreasonable risk of harm or neglect.” See Utah Code Ann. § 80-1­102(92) (emphasis added). A child can sustain “threatened harm” even if the child has not yet sustained actual “harm.” Pursuant to statutory definition, a child sustains “threatened harm” when, through the “actions” or “inactions” of a parent, the child is placed at “unreasonable risk” of future “developmental injury or damage” or “emotional damage” severe enough to seriously impair the “child’s growth, development, behavior, or psychological functioning.” See id. § 80-1-102(37)(a)–(b), 102(92). In cases involving parents who are victims of domestic violence, a juvenile court could perhaps more easily make a finding of “threatened harm” than already-sustained past harm. Indeed, we have already recognized that “domestic violence 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.” See In re C.C.W., 2019 UT App 34, ¶ 20, 440 P.3d 749. A parent victim’s failure to adequately protect a child from violence in the home could—if the violence was frequent and severe enough, and likely to continue in the future—lead to a supported finding that the parent, through inaction, has placed the child at an unreasonable risk of future developmental damage. It may even be possible, in appropriate cases, for such a finding to be made without expert testimony.

¶26      But in order to reach “abuse” through “threatened harm” in cases involving victims of domestic violence, a court must make specific and supported findings regarding each of the elements of the statutory definition. First, a court must specify that it is finding “abuse” by way of “threatened harm” (as opposed to through a finding of already-sustained “nonaccidental harm”). Second, the court must make a detailed finding of threatened harm on the facts of the case at hand, including specific identification of the “action or inaction” taken by the parent that leads to the “unreasonable risk” of future harm, as well as a satisfactory explanation of why the risk of future harm is “unreasonable.” Third, the court must specify the type of future harm it believes the child is at risk of sustaining, whether it be developmental injury or severe emotional damage, and should explain—with reference to specific evidence in the record—why the court believes the child is likely to sustain that particular type of harm.

¶27 In short, Utah’s statutory definitions of “neglect” and “abuse” are broad enough to allow courts, in appropriate cases, to find that a parent who is the victim of domestic violence has committed neglect or abuse by failing to protect his or her child from domestic violence in the home. But courts should exercise caution in so doing, and should reserve such findings for those cases in which the domestic violence is severe and sustained and in which the victim parent has taken specific actions or inactions aimed at prioritizing his or her relationship with the abuser over care and protection of the children.

¶28      In this case, I concur in the majority’s view that the court made appropriate findings of neglect with regard to Mother. I also concur in the majority’s decision not to reach the merits of the propriety of the court’s findings regarding abuse as to Mother, but I register serious reservations about the adequacy and sufficiency of those findings, and urge courts to exercise caution in making neglect and abuse determinations in situations like this one.

 

______________

[1] A more fulsome description of the relevant facts and procedural history can be found in In re K.K., 2023 UT App 13, the case in which we adjudicated Father’s appeal. In this case, we adjudicate Mother’s appeal.

[2] The juvenile court did not take this evidence to mean that the Children had not been adversely affected by their parents’ inappropriate behavior. Rather, the inference drawn by the court was that the parental conflict had been so pervasive that the Children had become somewhat numb to it.

[3] We do not intend to suggest the State could never demonstrate that a parent who is the victim of domestic violence has “abused” his or her children, as that term is statutorily defined. We agree with the general sentiments expressed in the concurring opinion that such a path is possible but is more difficult than demonstrating “neglect” and would require specific evidence and findings. See infra ¶¶ 22–27.

[4] In fact, a review of the underlying docket in Mother’s case reveals that Mother and the Children have done so well in their treatment and services that the juvenile court released the Children from DCFS’s protective supervision and terminated the court’s jurisdiction last fall.

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In re K.K. – 2023 UT App 13

In re K.K. – 2023 UT App 13

THE UTAH COURT OF APPEALS

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

PERSONS UNDER EIGHTEEN YEARS OF AGE.

D.K.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20220050-CA

Filed February 9, 2023

Second District Juvenile Court, Farmington Department

The Honorable Sharon S. Sipes

No. 1176751

Freyja Johnson, Emily Adams, and Hannah K.

Leavitt-Howell, Attorneys for Appellant

Sean D. Reyes, John M. Peterson, and Candace

Roach, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

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

concurred.

CHRISTIANSEN FORSTER, Judge:

¶1        D.K. (Father) and B.K. (Mother) are the parents of triplets K.K., S.K., and S.K. (collectively, the Children). When the Children were six years old, the State filed a child welfare petition for custody and guardianship on the grounds that the Children were neglected and abused by Father and Mother. Following an adjudication hearing on the petition, the juvenile court issued an order adjudicating the Children as neglected and abused.

¶2        Father now appeals the juvenile court’s abuse adjudication, arguing that the State failed to prove by clear and convincing evidence that he abused the Children. We affirm.

BACKGROUND

¶3        In 2019, when the Children were four years old, the State filed a petition seeking protective supervision services based on allegations that Father and Mother had engaged in repeated acts of domestic violence in front of the Children. Thereafter, Father and Mother agreed to engage in services voluntarily, and the State eventually dismissed its petition.

¶4        Two years later, however, Father and Mother again engaged in a series of domestic violence incidents that involved law enforcement. In May 2021, Father called the police and told them that Mother had “beat him up.” When officers arrived on scene and talked to Father, he told them he and Mother were “fighting about money” and that Mother “swung to hit him but never touched him.” On June 10, officers were again dispatched to the family home on a “domestic” call because Father and Mother were “screaming at each other with the [C]hildren in the home.” When officers arrived, they could hear the screaming. Father was uncooperative with the officers, but he eventually left the home. However, Father returned to the home later that same night.

¶5        On June 22, Father and Mother were involved in an altercation that led the State to seek custody and guardianship of the Children. During this altercation, Father and Mother were arguing inside the home. Mother was sitting on the couch, and Father sat on top of her demanding that she give him the keys to the car. Father then “head butted” Mother and told her to get out of the home, which she did. Once Mother was outside, Father followed her and began punching her “with a closed fist on the side of her stomach.” Father proceeded to grab a large rock and chase Mother around the car, “acting like he was going to throw the rock at her.” The Children were outside of the home for the duration of the altercation and witnessed Father chasing Mother and hitting her. Several neighbors also witnessed the altercation and called the police. When officers arrived, Father was arrested and taken to jail.

¶6        After Father’s arrest, Mother completed a lethality assessment, an evaluation given to assess the level of danger an abused person faces, which resulted in a score of high risk. Mother did not seek a protective order for herself or for the Children during the eight days Father was in jail. However, due to the severity of the prior altercation, the district court entered a criminal no contact/protective order on July 1. The order prohibited Father from residing with Mother and the Children.

¶7        On July 8, a caseworker from the Department of Child and Family Services (DCFS) went to the home for an unannounced visit. During the visit, the caseworker found Father outside; Father reported that Mother was inside sleeping. Father allowed the caseworker to interview the Children. During the interview, the Children reported that Father and Mother “fight and yell” and “hurt each other’s bodies.” Father was subsequently arrested for violation of the criminal no contact/protective order. Thereafter, the caseworker attempted to talk to Mother, who had been inside sleeping, but Mother refused to speak with the caseworker.

¶8        Based on the foregoing, the State filed a petition for custody and guardianship of the Children on the grounds that they were neglected and abused based on Father and Mother engaging in domestic violence in the home. Following a shelter hearing, the juvenile court determined the Children should remain in Mother’s custody for the time being but ordered Mother and the Children to have “absolutely no contact” with Father and that Mother “immediately notify law enforcement” if Father appeared at the home.

¶9        Following a series of pretrial hearings, the matter proceeded to an adjudication trial in December 2021. At trial, the State presented the testimony of six witnesses: Mother, Father, two neighbors who had witnessed the June 22 altercation, and two police officers who had responded to the neighbors’ 911 calls regarding the June 22 altercation.

¶10 According to the neighbors, Father and Mother were arguing about car keys. As Father approached Mother, “she put her arms out to stop him . . . and he slapped her hands aside.” Father then began punching Mother “haymaker style” to her side and stomach. The punching continued “for a minute or two,” and Father connected “five to ten” times. After the punching stopped, Father chased Mother around the front yard, “throwing rocks” and “bikes and other toys” in the direction of Mother, although the neighbors did not see any of the objects hit Mother.

¶11      The neighbors testified that during the altercation, two of the Children were in the front yard “standing behind [Mother]” and “clinging” to her. Mother was positioned between Father and the two children, acting as a “buffer” between them. One neighbor opined that he did not “believe any [of Father’s] aggression was towards the children,” and that “at no[] point did [he] think [the two children] were in any sort of danger.” However, the two children were outside the entire time, “seeing everything.”

¶12      In addition, one neighbor testified that she had witnessed Father and Mother “screaming” at each other multiple times in the presence of the Children prior to the June 22 altercation. Moreover, the neighbor had witnessed Father yelling at the Children twice and had observed that the Children “are terrified and trying to do whatever [Father] says to not be in trouble.”

¶13      The responding officers testified next. One officer testified that after arriving at the scene on June 22, he interviewed Mother, who told him that she had been arguing with Father over car keys. During the argument, Father “sat down on her” to keep her from leaving, headbutted her in the forehead, and “punched her in the back of the leg.” After Mother jumped out the window to the front yard, Father followed her and the two continued arguing. Father chased Mother around a vehicle parked in the front yard; once he caught her, he began “punching her in the side underneath her arms with a closed fist.” Mother was able to break away, but Father chased her with a rock in his hands. Mother told the officer the Children were outside with her during the altercation.

¶14      The officer also interviewed Father about the altercation. Father said he was “upset” because Mother hid the car keys from him but that “nothing got physical.” Father told the officer he and Mother had argued and run around the vehicle in the front yard. Father indicated that he had picked up a rock and held it over his head, but he did not throw it, nor did he intend to.

¶15      Lastly, the officer testified regarding his observations of the Children. When the officer arrived at the scene, the Children were inside the house. The officer interviewed Mother while she was standing at the front door. During the interview, the officer saw “at least two” of the Children standing by the front door behind Mother and “one of the kids popped his head outside” and asked for stickers. Officer opined that the Children’s demeanor “seemed calm.” The Children seemed “a little upset that some toys were . . . strewn about the front yard,” but otherwise they did not seem “distraught or flustered” by the altercation.

¶16      Mother testified that the June 22 incident started when she refused to give Father the keys to the car. Mother explained that she could not remember all the details about the altercation because she has “trouble remembering things.” However, she did remember that the altercation began when Father headbutted her in the house. After the headbutt, Father and Mother went outside to the front yard. Although Mother did not remember whether Father hit her in the yard, she recalled that he “didn’t follow [her] around the yard,” that he picked up a basket and “threw it up in the air” but not “at” her, and that he “picked up a rock” but did not chase her while holding it. Mother maintained that the Children had not observed the altercation because they were downstairs inside the house with a roommate where they stayed until the officers arrived.

¶17      Mother also testified that the Children “were never present for full on arguments or yelling.” She explained that “as soon as any argument started,” her roommate would take the Children downstairs so they would not be able to hear the fighting. Although Mother did not believe the Children had been impacted by the fighting, she did believe the Children were aware that they were sent downstairs to avoid hearing any fighting.

¶18 Father testified last. When asked about the June 22 altercation he invoked his Fifth Amendment right not to testify because criminal charges were pending against him regarding that incident. But Father explained that “before” he and Mother would engage in any verbal arguments, the Children would go downstairs.

¶19      After considering all the evidence, the juvenile court issued an adjudication order. In the order the court found, among other things, that Father and Mother had engaged in numerous acts of domestic violence, some of which had occurred in the presence of the Children, including the one on June 22; that when Father and Mother fight they sometimes send the Children downstairs to wait with a roommate, which had occurred two or three times that year; that the Children are aware that they are sent downstairs because Father and Mother fight; that “[a]ccording to the [C]hildren, [Father] and [Mother] fight and yell and hurt each other’s bodies”; and that “[t]he [C]hildren have experienced domestic violence with enough frequency that they appear calm during incidents between their parents . . . even though the parents ‘fight a lot and hurt’ each other.”

¶20 As to Father, the court drew a number of adverse inferences based on his decision to invoke his constitutional right to silence when asked specific questions about the June 22 altercation. And as to Mother, the court found that she “is not concerned” about the Children witnessing her and Father fighting and that her “demeanor and testimony”—including her inability to recall much of what happened on June 22—“is in tune with her desire to protect [Father] rather than address the domestic violence that exists in her home.” Based on these findings, the court concluded that Father “failed to provide proper care necessary for the health, safety, morals and well-being of the children in that he has engaged in domestic violence with [Mother], and [both Father and Mother] failed to protect the [C]hildren from exposure to domestic violence in the home.” The court also concluded that “[Father] and [Mother’s] domestic violence in their home has harmed [the Children]” and, accordingly, adjudicated the Children as neglected and abused as to Father.

ISSUE AND STANDARD OF REVIEW

¶21 Father now appeals only the juvenile court’s abuse adjudication, arguing that the court’s ruling was in error because the State failed to prove by clear and convincing evidence that he had harmed or threatened harm to the Children. “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 review the juvenile court’s factual findings deferentially, reversing the court’s findings only if they are clearly erroneous. Id. ¶ 15. A finding is clearly erroneous when the court either “failed to consider all of the facts or reached a decision against the clear weight of the evidence.” Id. ¶ 32 (quotation simplified). However, the question of whether the juvenile court properly applied the governing law to the facts of the case presents “a law-like mixed question subject to nondeferential review.” In re A.B., 2022 UT 39, ¶ 27.

ANALYSIS

¶22      At an adjudication trial, the juvenile court must determine whether “the allegations contained in the abuse, neglect, or dependency petition are true” by “clear and convincing evidence.” Utah Code § 80-3-402(1). Clear and convincing evidence is an “intermediate standard of proof” that “implies something more than the usual requirement of a preponderance . . . of the evidence; and something less than proof beyond a reasonable doubt.” Essential Botanical Farms, LC v. Kay, 2011 UT 71, ¶¶ 21, 24, 270 P.3d 430 (quotation simplified). Put differently, this standard requires “the existence of facts that make a conclusion very highly probable.” Id. ¶ 24 (quotation simplified).

¶23      As relevant here, “abuse” is defined as the “nonaccidental harm of a child” or the “threatened harm of a child.” Utah Code § 80-1-102(1)(a)(i)(A), (B). Thus, “[t]o find abuse under Utah law, a court must find harm.” In re K.T., 2017 UT 44, ¶ 9, 424 P.3d 91. “Harm” includes “physical or developmental injury or damage” and “emotional damage that results in a serious impairment in the child’s growth, development, behavior, or psychological functioning.” Utah Code § 80-1-102(37)(a), (b). And “[t]hreatened harm” is defined as “actions, inactions, or credible verbal threats, indicating that the child is at an unreasonable risk of harm or neglect.” Id. § 80-1-102(92).

¶24      As applied to this case, to satisfy the clear and convincing standard, the State “needed to present evidence that would allow the [juvenile] court to conclude that it was very highly probable that the [C]hildren had been harmed.” See In re K.T., 2017 UT 44, ¶ 9 n.3 (quotation simplified). In reaching this conclusion the court may properly “infer harm” based on the evidence presented. Id. ¶ 14. However, the court may not “speculate” about the existence of harm absent clear and convincing evidence demonstrating the actions actually resulted in harm. Id. ¶¶ 14–17.

¶25 After considering the evidence presented during the adjudication trial, the juvenile court concluded the Children were abused because “[Father] and [Mother’s] domestic violence in their home has harmed [the Children].” Father argues the court’s conclusion was in error because the State failed to produce clear and convincing evidence that he physically harmed the Children or that the Children were developmentally harmed or emotionally damaged by observing Father assault Mother and Father and Mother argue. But even if we were to agree with Father that the State failed to present sufficient evidence that Father harmed the Children and were to agree that the juvenile court erred in adjudicating Father as abusing the Children, Father has not demonstrated that he was prejudiced by the alleged error. See In re N.M., 2018 UT App 141, ¶ 27, 427 P.3d 1239 (“An error is prejudicial only if a review of the record persuades the appellate court that without the error there was a reasonable likelihood of a more favorable result for the appellant.” (quotation simplified)); In re. J.B., 2002 UT App 268, ¶¶ 8–12, 53 P.3d 968 (affirming the termination of a father’s parental rights despite the juvenile court’s reliance on improper findings because such reliance did not result in “prejudicial error”). As noted above, the court adjudicated the Children as both neglected and abused, and Father appeals only the court’s abuse adjudication. Although Father is correct that “[a]buse and neglect are statutorily defined and given ‘distinct statuses’” and that “[u]nder the statutory definitions . . . abuse requires a higher level of improper conduct from a parent than neglect,” that distinction has no bearing in this case—and Father has not shown that it is likely to have any bearing in the future—because the court’s adjudications of neglect and abuse were based on the same underlying incidents of domestic violence.

¶26 When a juvenile court adjudicates a child as either neglected or abused, that determination brings the child within the jurisdiction of the court and allows the court to enter dispositional orders. See Utah Code § 80-3-402. The dispositions available to the court do not hinge on whether the child was adjudicated as neglected or abused. Instead, dispositions are tied to the factual findings about what is going on in the case and are implemented based on concern for the child’s health and safety and remedying the underlying issues resulting in the adjudication. See id. § 80-3-405.

¶27 Here, the juvenile court’s disposition is governed by the need to address Father’s commission of domestic violence in the presence of the Children and the risk such behavior will continue. Services to address this behavior will not differ whether the underlying adjudication is labeled as neglect or abuse because the court’s neglect determination was based on the same underlying facts as the abuse determination: here, Father’s failure to protect and to provide proper care for the Children as a result of his engaging in acts of domestic violence.[1]

¶28      Father cites this court’s decision in In re C.M.R., 2020 UT App 114, 473 P.3d 184, for the proposition that Father was harmed by the court’s abuse adjudication, asserting that the findings of abuse in the adjudication order “will form the basis for whether [Father] is able to comply with the requirements of [any service plan] going forward and whether [Father] can be reunited with the Children.” See id. ¶ 28. But unlike the mother in In re C.M.R., who was potentially prejudiced by entering admissions to allegations regarding a specific additional incident of abuse at the adjudication hearing, Father’s abuse adjudication was based on the exact same underlying set of facts as his neglect adjudication. In this case, Father has not challenged the juvenile court’s neglect adjudication, nor has he challenged the court’s underlying factual findings—which support both the neglect and the abuse adjudications—that he assaulted Mother in the presence of the Children and repeatedly engaged in heated verbal arguments with her. Those underlying actions, which form the foundation for both adjudications, are the reason why he “can only have supervised visitation with [the] Children” and why “[h]e is not allowed in the home,” and not because the court adjudicated the Children as abused in addition to neglected. Because Father has not challenged the neglect adjudication or demonstrated how the ramifications flowing from this unchallenged adjudication would be less severe than those resulting from an abuse adjudication, he has not demonstrated that he has sustained any prejudice as a result of the court’s abuse adjudication.[2] See In re G.B., 2022 UT App 98, ¶ 34, 516 P.3d 781 (declining to reach the merits of a challenge to an abuse adjudication where the parent did not challenge a neglect adjudication based on the same facts because the parent did not demonstrate that the abuse adjudication carried “some collateral consequences . . . that [did] not follow from a neglect determination”).

 

CONCLUSION

¶29 On appeal, Father does not challenge the juvenile court’s findings that he committed domestic violence in the presence of the Children or that those actions resulted in him neglecting the Children by failing to provide them proper care and to protect them from exposure to domestic violence. Under these circumstances, even if the juvenile court erred in its separate abuse adjudication—a conclusion we stop short of reaching—Father has not demonstrated he was prejudiced by any such error because he has not challenged the court’s neglect adjudication or the facts underlying it, which are the same facts underlying the court’s abuse adjudication, and any court-ordered disposition will be based upon Father’s own acts and not the adjudication of abuse.

¶30 Affirmed.

______________

[1] In his reply brief Father argues he was harmed by the juvenile court’s abuse adjudication because “an abuse adjudication goes into a central abuse registry system managed by DCFS” and “the information in that registry is used for licensing purposes and prevents individuals who have been adjudicated of abuse from holding licenses in certain professions.” But this argument misses the mark. While Father correctly notes that the abuse registry system—called the Management Information System (the MIS)— can be accessed by the State for all future cases involving Father, see Utah Code § 80-2-1001, he conflates the MIS with a “sub-part” of the MIS called the Licensing Information System (the LIS), see id. § 80-2-1002(1)(a)(i). Information on the MIS includes facts relevant to each child welfare case, whereas the LIS is maintained for “licensing purposes.” See id. § 80-2-1002(1)(a)(i). Although an individual on the LIS may be prohibited from, among other things, holding licenses in certain professions, see id. § 80-2-708(2)(a)(v), inclusion on the LIS is not automatic in every child welfare case. Rather, the LIS identifies only individuals found to have committed a “severe type of child abuse or neglect.” See id. § 80-2-708(1). Because the court did not adjudicate Father as severely abusing the Children, inclusion on the LIS does not automatically follow, and Father has not asserted that he has been—or is likely to be—included therein. Accordingly, Father has not demonstrated that, in this case, he has sustained any prejudice as a result of the juvenile court’s abuse determination.

[2] Indeed, in the juvenile court’s dispositional order, entered approximately two months after the adjudication order, Father’s primary responsibility is to “complete a domestic violence/mental health assessment . . . and follow any and all of the recommendations made.”

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In Re A.H. – 2022 UT App 114 – Termination of Parental Rights

2022 UT App 114

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF

A.H., J.H., J.H., L.H., N.H., S.H., AND E.H., PERSONS UNDER EIGHTEEN YEARS OF AGE.

N.J.H. AND S.H., Appellants, v. STATE OF UTAH, Appellee.

Opinion

Nos. 20210353-CA and

20210354-CA

Filed October 6, 2022

Fourth District Juvenile Court, Provo Department

The Honorable Suchada P. Bazzelle No. 1145453

Alexandra Mareschal, Attorney for Appellant N.J.H.

Kirstin H. Norman, Attorney for Appellant S.H.

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

Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE RYA N M. HARRIS authored this Opinion, in which

JUDGE DAVID N. MORTENSEN and SENIOR JUDGE KATE APPLEBY concurred.[1]

HARRIS, Judge:

¶1 After a bench trial, the juvenile court terminated S.H.’s (Mother) and N.J.H.’s (Father) (collectively, Parents) parental rights regarding the two youngest of their seven children: A.H. and L.H. (the Subject Children). The court did not terminate Parents’ rights regarding their other five children; it accepted the parties’ stipulation that the best interest of those children would be served by placing them in a guardianship with relatives. But despite those same relatives being willing to take and care for (by either adoption or guardianship) the Subject Children as well, the court determined that the Subject Children’s best interest would be served by termination of Parents’ rights and adoption by their foster parents. In separate appeals that we consider together in this opinion, Parents challenge that decision, asserting that termination of their rights was neither strictly necessary nor in the best interest of the Subject Children. We agree and reverse.

BACKGROUND

¶2 Mother and Father are the parents of seven children (the Children), each born approximately two years apart. The eldest (E.H.) was born in 2005, and the two youngest (A.H. and L.H.) were born in February 2015 and December 2016, respectively. Mother is the biological parent of all seven of the Children. Father is the biological parent of the six youngest Children and the legal parent of all of them; he adopted E.H. when E.H. was an infant. Mother and Father met in New Mexico, which is where the parents of E.H.’s biological father (Grandparents) live.[2] Parents moved to Utah, with the Children then born, in 2007.

¶3 Over the years, Grandparents developed a close relationship not only with E.H.—their biological grandson—but with the other Children as well. They made trips to Utah on at least an annual basis during which they spent time with the Children, and they engaged in regular telephonic contact as well. After L.H. was born in 2016, he required a lengthy stay in the newborn intensive care unit, and Grandmother took three weeks off from her job as a nurse to come to Utah and help.

¶4 In June 2017, the Division of Child and Family Services (DCFS) filed a petition for protective supervision, asserting that Father had physically abused N.H., one of the older sons, and that L.H.—who was then just a few months old—was malnourished and failing to thrive. DCFS’s plan, at that point, was to leave the Children in the home and provide supportive services. After adjudicating N.H. abused as to Father and the other Children neglected as to Father, the juvenile court granted DCFS’s requested relief and ordered that Father have only supervised contact with the Children. For the time being, the Children remained in the home under Mother’s care.

¶5 In August 2017, however, DCFS filed a petition seeking custody of the Children, citing not only the issues raised in its previous petition but also a more recent incident involving Mother and L.H. In response to a report of reckless driving, police found Mother slumped over the steering wheel of her parked car with L.H. in the backseat, and a search of the vehicle turned up several prescription medications in a container not intended for prescriptions, as well as a red straw with “white powder” inside it. Police arrested Mother on suspicion of, among other things, impaired driving; she was later able to provide prescriptions for all the medications found in the car.

¶6 After a hearing, the court granted DCFS’s requested relief and placed the Children in the temporary custody of DCFS. The Children were removed from Mother’s care later that same day and, when caseworkers went to the home to effectuate the court’s order, they observed Mother “wobbling back and forth” and having “a hard time keeping her eyes open.” Initially, DCFS caseworkers—with Mother’s agreement—arranged a safety plan in which Mother would leave the home and the Children would stay there, in their familiar environment, cared for by Mother’s brother. But Mother knowingly failed to follow that plan, and returned to the home without permission two days later. As a result of Mother’s actions, DCFS removed the Children from the home and placed them in a group home for children.

¶7 But that placement was temporary, and DCFS eventually needed to move the Children to foster care placements. But because no available foster care placement could accommodate all seven Children, DCFS found it necessary to split the Children up into three different placements. The oldest two were placed in one foster home, the next three in a second, and the Subject Children in a third. Three months later, the oldest two were placed with a paternal aunt. For almost a year, the seven Children were separated into these three groups, and the different groups saw each other only during Parents’ supervised parent-time; they were sometimes permitted to call each other, but DCFS did not facilitate any in-person sibling visitation during this period.

¶8 At later hearings, the juvenile court adjudicated the children neglected as to Mother. The court noted L.H.’s “failure to thrive” and the incident involving the parked car, as well as Mother’s criminal history—which involved both drug crimes and retail theft—and her “history of mental health issues that [could] place the [C]hildren at risk of harm.” Despite these concerns, however, the goal remained reunification and, over the ensuing months, Parents complied with the court’s direction well enough that, by July 2018, the family was able to reunify in the home. For the next nine months, the family was together—for the most part[3]—and doing reasonably well, and DCFS anticipated that it might be able to close the case in the spring of 2019. But three events occurred in early 2019 that prompted DCFS to reconsider.

¶9 First, in March 2019, Father injured two of the older Children, and DCFS made a supported finding of physical abuse by Father. In the wake of this incident, and in an effort to avoid a second removal of the Children from the home, Father agreed to move out and to have only supervised visits with the Children. When caseworkers visited the home following Father’s departure, they became concerned about Mother’s ability to care for the Children on her own; in particular, caseworkers observed several incidents in which Mother left the younger Children unattended.

¶10 Second, in late April 2019, police were called to the home at 1:54 a.m. and found L.H., then just two years old, alone in the family car, which was parked in front of the house. Mother explained that she had been out shopping, gotten home late, and then taken a phone call while L.H. was still out in the car asleep.

¶11 Third, in early May 2019, Mother had an encounter with police while in her car at a fast-food restaurant. Officers observed Mother responding quietly and slowly to questions, and they discovered in the car a plastic bag and an unlabeled prescription bottle containing pills later identified as controlled substances. In addition, officers found a razor blade with white residue and a rolled-up dollar bill in the vehicle, evidence that suggested Mother had been misusing the drugs. Mother passed a field sobriety test, and officers later determined that she had valid prescriptions for the pills.

¶12 Following these incidents, DCFS filed a new petition, again seeking to remove the Children from the home and place them in state custody. The juvenile court again adjudicated the Children abused and neglected as to each Parent, and again placed them into the custody of DCFS. The Children were extremely emotional when they learned of the court’s order removing them from the home for a second time; in fact, officials even had to use physical force to restrain two of the older sons when the time came to take them into custody. This time, the seven Children were sent to four placements: one of the older sons was placed in a short-term behavioral health facility because of his aggressive behavior during the removal; two of the older sons were placed together; and the two next-oldest sons and the Subject Children were returned to their respective previous foster placements. Just a few weeks later, six of the Children—all but the oldest—were placed together with a single foster family in a different county, but this short reunion lasted only about two months.

¶13 In August 2019, with the school year approaching, Parents requested that the Children be returned to Utah County, a request that again required the Children to be split up. This time, the two oldest were placed together; the next three were placed together in a new placement; and the Subject Children were—for the first time—placed with the family (the Foster Family) who now wishes to adopt them.[4] The Subject Children bonded very quickly with Foster Family, calling the parents “mom and dad” within just a few weeks of being placed with them. Still, the primary goal remained reunification, and the court ordered additional reunification services. However, DCFS still did not facilitate any sibling visitation, but “left that mostly up to [the] foster parents.” Although the foster families initially managed “a few meet-ups on their own,” these efforts diminished over time, despite the absence of any indication that the Children—including the Subject Children—did not want to see each other.

¶14 At a court hearing in July 2019, shortly after the second removal, Mother’s attorney requested that Grandparents—who were and remain willing to take all seven of the Children—be considered as a possible placement. The court was open to this suggestion but, because Grandparents reside in New Mexico, the court ordered DCFS to “initiate an ICPC[5] as to” Grandparents. But DCFS delayed acting upon the court’s order for nearly four months, until late October 2019. DCFS attributed the delay, in part, to inadvertence related to a caseworker switch that was occurring right then, but the new caseworker later testified that her “understanding” of the situation was that DCFS “made a decision not to proceed” with the ICPC process “because reunification services were still being offered.” Owing at least in part to the four-month delay in getting it started, the ICPC report was still not completed by the beginning of the eventual termination trial in October 2020. On the third day of trial, a DCFS witness explained that New Mexico had just finished its end of the process and had given its “approval” the day before, and that DCFS had filled out its final form the night before.

¶15 The ICPC report, when it was finally completed, raised no concerns with regard to Grandparents, and concluded that their home would be an appropriate placement for the Children. Indeed, one of the DCFS caseworkers testified at trial that she had “no concerns directly about [Grandparents] and their ability to be a safe home.” But none of the Children were actually placed with Grandparents until October 2020, due in large part to the delays associated with completion of the ICPC report.

¶16 For several months following the second removal of the Children from the home, the primary permanency goal remained reunification, and DCFS continued to provide reunification services to the family. But in the fall of 2019, after yet another substance use incident involving Mother, DCFS became dissatisfied with Parents’ progress and asked the court to change the primary permanency goal. At a hearing held at the end of October 2019, the court agreed, terminated reunification services, and changed the primary permanency goal to adoption with a concurrent goal of permanent custody and guardianship. A few weeks later, the State filed a petition seeking the termination of Parents’ rights with regard to all seven Children.

¶17 The court originally scheduled the termination trial to occur at the end of February 2020, but the State requested a continuance because it was working on placing the Children with Grandparents, was waiting for the ICPC report, and wanted “to ensure [that] the Grandparents kn[ew] what they [were] getting into.” The court granted the State’s requested continuance and rescheduled the trial for the end of March 2020. On March 12— the day before all “non-essential” court hearings in Utah were postponed by administrative order[6] due to the emerging COVID19 pandemic—all parties filed a stipulated motion asking that the trial be postponed yet again because there was “an ICPC request pending approval” and it was “highly anticipated by all parties that the results of the ICPC [would] resolve all issues pending before the Court.” The court granted the stipulated motion and continued the trial, but did so without date because the termination trial was deemed “to be a non-essential hearing.” Eventually, after the COVID-related administrative order was amended to allow some non-essential hearings to go forward, the court rescheduled the trial for October 2020, to take place via videoconference.

¶18 In the meantime, despite the fact that the ICPC report was not yet completed, the five oldest Children visited Grandparents in New Mexico for several weeks during the summer of 2020. DCFS did not allow the Subject Children to participate in that visit, not based on any concern about Grandparents’ ability to provide appropriate care for them, but because caseworkers believed that such a lengthy visit away from Foster Family would be “scary and upsetting” to the Subject Children.

¶19 During this time, the parties and their attorneys were preparing for trial. From the beginning of the case, Parents had each been provided with a court-appointed lawyer (collectively, Appointed Counsel) to represent them. But toward the end of July 2020, Parents asked a private lawyer (Private Counsel) to represent them at trial.[7] Private Counsel agreed, and Parents paid him a retainer. Parents informed Private Counsel of upcoming pretrial disclosure deadlines, and even gave him a list of fifteen witnesses Parents wanted to call at trial; Private Counsel told them that he would file the appropriate documents and that they did not need to contact their Appointed Counsel. Eventually, Parents discovered that no pretrial disclosures had been made and no motions for extensions of the deadlines had been filed.

¶20 The trial was finally held in October 2020. The first day was spent solely trying to clear up confusion about who was representing Parents. Appointed Counsel appeared for trial, but they indicated that they were unprepared to proceed given the lack of communication from Parents over the weeks leading up to trial. Private Counsel appeared as well, even though he had not filed a notice of appearance, and requested that the trial be continued. The court—not knowing the full picture of what had happened behind the scenes with Parents’ attempts to change counsel—chastised Private Counsel for the “very, very late notice and request” and denied the continuance, expressing concern that eleven months had already passed since the trial had originally been set. The court then recessed for the day to allow the parties to confer and negotiate about possible permanency options short of termination of Parents’ rights.

¶21 Those negotiations bore fruit, at least in part. With Private Counsel assisting Parents, the parties were able to reach a stipulation that it was in the best interest of the oldest five Children to be placed with Grandparents under an order of permanent custody and guardianship. But the parties were unable to reach a similar stipulation with regard to the Subject Children, and therefore the trial went forward as to them. At that point, Private Counsel withdrew from representing Parents, leaving Appointed Counsel to handle the trial even though they had not—given the lack of communication with Parents—made many of the usual preparations for a trial.

¶22 In support of its case, the State presented testimony from four DCFS caseworkers, two therapists, Mother’s former and current probation officers, and the mother from the Foster Family (Foster Mother). Foster Mother testified that the Subject Children had developed a strong bond with Foster Family and “love[d] spending time with [them].” She also stated that the Subject Children refer to her three children as “their brother and sisters,” that “[n]obody is ever left out amongst the kids,” and that L.H. “believes he is part of [their] family” and “has said, on multiple occasions, that he’s already adopted.” The two therapists testified that the Subject Children did indeed have a strong bond with Foster Family; one of them stated that it was “the most secure attachment [she had] ever witnessed . . . between a foster parent and a foster child,” and offered her view that it would be “hugely devastating” for them if they were removed from Foster Family.

¶23 Several of the caseworkers testified about the strength of the bond between the Subject Children and their older siblings, and they painted a picture in which those bonds were originally very strong but had begun to weaken over time as the Subject Children spent less time with their siblings and became more attached to Foster Family. One of the first caseworkers to work with the family testified that the bonds had been strong among all the Children, including the Subject Children. Another testified about how emotional the older children were upon learning that they were to be removed from the home a second time and again separated from most of their siblings. But another caseworker— who had been assigned to the family in 2019—testified that the Subject Children’s bond to their older siblings was weakening as they became more attached to Foster Family. In general, the caseworkers voiced concerns about separating siblings, offering their view that ordinarily “children should stay together” and that placing siblings together “is understood under most circumstances . . . to be beneficial to the kids.”

¶24 Parents were prohibited from introducing many of their witnesses because they had failed to make their required pretrial disclosures. In particular, Parents were prepared to call one of the Subject Children’s former foster parents as well as some of the older Children, who would each have apparently testified that the bonds between the Subject Children and their siblings had been, and still remained, very strong. But the court refused to allow Parents to call these witnesses because they had not been timely disclosed. The court did, however, allow Parents to offer testimony of their own, and to call Grandparents to testify.

¶25 For their part, Parents testified about how closely bonded the Children had been before DCFS became involved. Father testified that the older siblings had expressed a desire to all be together and noted that, if they were placed with Grandparents, the Subject Children would not only be with siblings, but also with cousins, and would have a large network of familial support. Mother testified that she, too, wanted the Children to be kept together and stated that she knew she was “not what [the Children] deserve” “right now,” but offered her view that, at some point in the future, after she has “[gotten] [her]self together,” she “will be what’s best for them.”

¶26 Grandfather testified that he and Grandmother told DCFS, right from the start, that they were willing to take all seven children. He explained that they were accustomed to large families, having raised eight children of their own; he noted that two of those children lived nearby, meaning that the Children, if they lived with him, would have aunts, uncles, and cousins in the vicinity. Grandfather testified that he and Grandmother had renovated their house to accommodate all seven children and that they were able, financially and otherwise, to take on the responsibility. He acknowledged that raising seven children was not how he had originally envisioned spending his retirement years, but he offered his view that “no matter what else I could be doing in the next ten or twenty years,” what mattered most to him was “that [he] could be doing something to make a difference in the lives of these kids.” Grandmother testified that she had bonded with A.H. during her three-week stay with the family after L.H. was born, and she offered her view that it had been difficult to get Foster Mother to facilitate telephonic or virtual visits between the older siblings and the Subject Children during the older siblings’ summer 2020 visit to New Mexico.

¶27 After trial, the court took the matter under advisement for six months, issuing a written decision in May 2021. In that ruling, the court terminated Parents’ rights as to A.H. and L.H. It found sufficient statutory grounds for termination of Parents’ parental rights, including Father’s physical abuse of some of the older sons, Parents’ neglect of L.H. when he was malnourished and failing to thrive as an infant, and neglect of the Children for failing to protect them from Mother’s substance use. Similarly, the court found that Mother had neglected the Children by failing to properly feed L.H., insufficiently supervising the Subject Children, and improperly using drugs. Moreover, the court found that Mother’s “substance abuse and criminal behavior” rendered her unfit as a parent.

¶28 The court next found that DCFS had made “reasonable efforts towards the permanency goal of reunification.” It noted that DCFS has been involved with the family since April 2017 and, “during the arc of the case, circumstances changed frequently and there were many setbacks in the attempts to reunify the children with the parents.” The court concluded that “reunification efforts were not successful through no fault of DCFS.”

¶29 Finally, as to best interest, the court determined—in keeping with the parties’ stipulation—that, with regard to the oldest five siblings, “a permanent custody and guardianship arrangement” with Grandparents “would serve their best interests as well as, or better than, an adoption would.” But the court saw it differently when it came to the Subject Children, concluding that their best interest would be best served by the facilitation of an adoption by Foster Family, and that termination of Parents’ rights was strictly necessary to advance that interest. The court reached that decision even though it meant permanently separating the Children, and even though the court acknowledged that Grandparents were “certainly appropriate caregivers.” The court offered several reasons for its decision. First, it noted that the Subject Children were very young—A.H. was two-and-a-half years old, and L.H. was eight months old, when they were first removed from the family home—and that, as a result, they “had a very short time to be with their older siblings.” Second, the court concluded that the strength of the bond between the Subject Children and their siblings was not particularly strong, opining that the Subject Children “have little beyond a biological connection” to their siblings. In this vein, the court downplayed any positive effects that might come from keeping the Children together, describing the older siblings as “a large and unruly group” that “cannot be depended upon to protect” the Subject Children. Third, the court discussed the unquestionably strong bond that the Subject Children had formed with Foster Family. Fourth, the court concluded that disruption of the Subject Children’s “placement at this time would be very detrimental” and would “put them at unnecessary risk for future emotional and mental health issues.” Fifth, the court expressed concern that, absent termination, Parents would retain some level of parental rights and might attempt “to regain custody of the [C]hildren in the future,” an eventuality the court believed would “pose a risk to” the Subject Children. And finally, the court emphasized the importance of stability, stating that “the [Subject Children] and [Foster Family] deserve, and indeed need, the highest level of legal protection available, which would be achieved through adoption.” For these reasons, the juvenile court terminated Parents’ rights with regard to the Subject Children.

ISSUE AND STANDARD OF REVIEW

¶30 Parents now appeal the juvenile court’s order terminating their parental rights, but their appeal is narrowly focused. Parents do not challenge the juvenile court’s determination that statutory grounds exist for terminating their parental rights. However, Parents do challenge the court’s determination that termination of their parental rights was strictly necessary and in the best interest of the Subject Children. We review a lower court’s “best interest” determination deferentially, and we will overturn it “only if it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” In re E.R., 2021 UT 36, ¶¶ 22, 31, 496 P.3d 58 (quotation simplified). But “such deference is not absolute.” Id. ¶ 32. We do not afford “a high degree of deference” to such determinations; rather, we simply apply “the same level of deference given to all lower court findings of fact and ‘fact-like’ determinations of mixed questions.” Id. ¶¶ 29–30. In addition, our deference must be guided by the relevant evidentiary standard applicable in termination of parental rights cases: the “clear and convincing” evidence standard. See In re G.D., 2021 UT 19, ¶ 73, 491 P.3d 867. “Although we defer to juvenile courts’ [best-interest] determinations, in reviewing their conclusions we do so with an exacting focus on the proper evidentiary standard,” and “we will not only consider whether any relevant facts have been left out but assess whether the juvenile court’s determination that the ‘clear and convincing’ standard had been met goes against the clear weight of the evidence.” Id.[8]

ANALYSIS

¶31 The right of parents to raise their children is one of the most important rights any person enjoys, and that right is among the fundamental rights clearly protected by our federal and state constitutions. See Troxel v. Granville, 530 U.S. 57, 65–66 (2000) (stating that “the interest of parents in the care, custody, and control of their children” is “perhaps the oldest of the fundamental liberty interests” the court recognizes); see also In re J.P., 648 P.2d 1364, 1372 (Utah 1982) (“A parent has a fundamental right, protected by the Constitution, to sustain his relationship with his child.” (quotation simplified)). Our legislature has expressed similar sentiments, declaring that “[u]nder both the United States Constitution and the constitution of this state, a parent possesses a fundamental liberty interest in the care, custody, and management of the parent’s child,” see Utah Code Ann. § 80-4-104(1) (LexisNexis Supp. 2022), and that this interest “does not cease to exist simply because . . . a parent may fail to be a model parent,” id. § 80-4-104(4)(a)(i).

¶32 The “termination” of these fundamental “family ties . . . may only be done for compelling reasons.” See id. § 80-4-104(1). Under our law, a parent’s rights are subject to termination only if both parts of a two-part test are satisfied. First, a court must find that one or more statutory grounds for termination are present; these include such things as abandonment, abuse, or neglect. See id. § 80-4-301(1). Second, a court must find that termination of the parent’s rights is in the best interest of the children. See In re B.T.B., 2020 UT 60, ¶¶ 19–20, 472 P.3d 827. The party seeking termination of a parent’s rights bears the burden of proof on both parts of this test. See In re G.D., 2021 UT 19, ¶ 43, 491 P.3d 867 (stating that “petitioners in termination proceedings must prove termination is warranted”). And that party must make this required showing “by clear and convincing evidence.” Id.see also Santosky v. Kramer, 455 U.S. 745, 769–70 (1982) (concluding that the U.S. Constitution requires application of a “clear and convincing evidence” standard in parental termination proceedings).

¶33 As noted, Parents do not challenge the juvenile court’s determination that statutory grounds for termination exist in this case. Their challenge is limited to the second part of the test: whether termination of their rights is, under the circumstances presented here, in the best interest of the Subject Children.

¶34 “The best interest of the child has always been a paramount or ‘polar star’ principle in cases involving termination of parental rights,” although it is not “the sole criterion.” In re J.P., 648 P.2d at 1368. The assessment of what is in a child’s best interest is, by definition, “a wide-ranging inquiry that asks a court to weigh the entirety of the circumstances” surrounding a child’s situation, including “the physical, intellectual, social, moral, and educational training and general welfare and happiness of the child.” See In re J.M., 2020 UT App 52, ¶¶ 35, 37, 463 P.3d 66 (quotation simplified). Because children inhabit dynamic environments in which their “needs and circumstances” are “constantly evolving,” “the best-interest inquiry is to be undertaken in a present-tense fashion,” as of the date of the trial or hearing held to decide the question. See In re Z.C.W., 2021 UT App 98, ¶¶ 12–13, 500 P.3d 94 (quotation simplified).

¶35 Our legislature has provided two related pieces of important guidance on the best-interest question. First, it has expressed a strong preference for families to remain together, establishing something akin to a presumption that a child’s best interest will “usually” be served by remaining with the child’s parents:

It is in the best interest and welfare of a child to be raised under the care and supervision of the child’s natural parents. 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). In that same statutory section, our legislature also emphasized that, “[w]herever possible, family life should be strengthened and preserved.” See id. § 80-4-104(12). And the “family” includes the child’s parents as well as the child’s siblings; indeed, in the related child custody context, our legislature has specifically identified “the relative benefit of keeping siblings together” as a factor that the court “may consider” when evaluating “the best interest of the child.” See id. § 30-3-10(2)(o) (LexisNexis 2019).[9]

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

¶37 In assessing whether termination is strictly necessary to promote a child’s best interest, courts “shall consider” whether “sufficient efforts were dedicated to reunification” of the family, and whether “the efforts to place the child with kin who have, or are willing to come forward to care for the child, were given due weight.” See Utah Code Ann. § 80-4-104(12)(b). Indeed,

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

In re B.T.B., 2020 UT 60, ¶ 67 (quotation simplified). 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. See, e.g.In re H.F., 2019 UT App 204, ¶ 17, 455 P.3d 1098 (reversing and remanding a juvenile court’s termination order because, among other things, “the court’s determination that termination was strictly necessary was not supported by an appropriate exploration of feasible alternatives to termination”).

¶38 In this case, Parents challenge the juvenile court’s best interest determination, including its subsidiary conclusion that termination of their rights was strictly necessary to promote the best interest of the Subject Children. As discussed herein, we find merit in Parents’ challenge. We recognize that we are reviewing the juvenile court’s determinations deferentially, and we do not lightly reverse a court’s best-interest determination. But the facts of this case simply do not amount to strict necessity, and therefore the best-interest requirement is not met. Stated another way, the evidence presented at trial did not constitute clear and convincing evidence that termination of Parents’ rights to the Subject Children would be in the best interest of those children. Under the specific circumstances of this case, the juvenile court’s determination was against the clear weight of the evidence, and on that basis we reverse.

¶39 In its written decision, the juvenile court set forth several reasons for its conclusion that termination of Parents’ rights was strictly necessary to promote the Subject Children’s best interest.[10] We discuss those reasons, in turn. Although the topics that the juvenile court focused on are certainly appropriate topics to consider when examining best interest, we conclude that the facts underlying those topics—in this case—do not support a determination that termination was strictly necessary to promote the best interest of the Subject Children.

¶40 The court began its best-interest examination by discussing the ages of the Subject Children and, relatedly, the fact that the bonds between the Subject Children and their siblings had deteriorated. The Subject Children are, as noted, the youngest of the seven Children and were very young—A.H. was two-and-ahalf years old, and L.H. was eight months old—when they were first removed from the family home. The juvenile court noted that, as a result, they “did not have the opportunity to live with their parents for as long as their older siblings” and “had a very short time to be with their older siblings.” These facts are unquestionably true, and one of the consequences of these facts is that the Subject Children had less-developed bonds with Parents and with their siblings than the other Children did. But this will almost always be true when children are removed from their homes as newborns or toddlers, and courts must be careful not to overemphasize the significance of the deterioration of familial bonds—particularly sibling bonds—when that deterioration is the result of court-ordered removal from the home at an early age. See, e.g.In re N.M., 186 A.3d 998, 1014 n.30 (Pa. Super. Ct. 2018) (vacating an order terminating parental rights in part because the lower court’s decisions during the case had been “designed to affect the bond between” the parents and the child “so that termination would be the natural outcome of the proceedings”).

¶41 The facts of this case present an interesting case study. The next-oldest of the Children was born in April 2013, and is less than two years older than A.H. He was only four years old at the time of the first removal, and yet the juvenile court determined that it would not be in his best interest for Parents’ rights to be terminated. Many of the differences—especially in terms of the strength of the sibling bonds—between the Subject Children’s situation and that of their barely-older brother are largely the result of decisions made by DCFS and the court during the pendency of these proceedings. In a situation like this, a court must be careful not to ascribe too much weight to circumstances that are of the court’s own making.

¶42 We do not doubt the juvenile court’s finding that, by the time of trial, the bonds between the Subject Children and the other Children were not as strong as the bonds between the five oldest Children. We take at face value the court’s statement that the Subject Children, at the time of trial, had “little beyond a biological connection” to their older siblings. But even the biological connection between siblings matters. The connection between siblings is, for many people, the longest-lasting connection they will have in life. Indeed, “the importance of sibling relationships is well recognized by . . . courts and social science scholars,” because “a sibling relationship can be an independent emotionally supporting factor for children in ways quite distinctive from other relationships, and there are benefits and experiences that a child reaps from a relationship with his or her brother(s) or sister(s) which truly cannot be derived from any other.” In re D.C., 4 A.3d 1004, 1012 (N.J. 2010) (quotation simplified); see also Aaron Edward Brown, He Ain’t Heavy, He’s My Brother: The Need for a Statutory Enabling of Sibling Visitation, 27 B.U. Pub. Int. L.J. 1, 5 (2018) (noting that “[t]oday’s children are more likely to grow up with a sibling than a father,” and that “[t]he sibling relationship is generally regarded to be the longest relationship a person will have because the relationship will typically last longer than a relationship with a parent or spouse”). Such bonds are often especially important “to children who experience chaotic circumstances” like abuse or neglect, because “in such circumstances, they learn very early to depend on and cooperate with each other to cope with their common problems.” In re D.C., 4 A.3d at 1013 (quotation simplified); see also In re Welfare of Child of G.R., No. A17-0995, 2017 WL 5661606, at *5 (Minn. Ct. App. Nov. 27, 2017) (“The sibling relationship is especially important for a young child with an unstable family structure as these siblings can provide secure emotional attachment, nurturing, and solace.”). Indeed, trial testimony from the DCFS caseworkers mirrored these sentiments, with the caseworkers stating that “children should stay together” and that placing siblings together “is understood under most circumstances . . . to be beneficial to the kids.”

¶43 And there is nothing in the record before us that indicates significant trouble among the sibling ranks. To the contrary, by all accounts the Children are quite loyal to one another, as best exemplified by their collective reaction—outrage—to being removed from the family home, and from each other, a second time in 2019. The juvenile court referred to them as a “large and unruly group,” but that description would seem to fit almost any group of seven siblings. The court also appeared concerned about “significant sibling rivalr[ies]” among some of the older Children but, again, we would be surprised to find a seven-member sibling group that didn’t have significant sibling rivalries. The court also offered its view that “[t]he older boys cannot be depended upon to protect” the Subject Children, but we think that’s an unfair expectation, as the court itself noted. And there are no allegations (for example, of intra-sibling abuse) about or among this sibling group that would counsel against keeping the group together.

¶44 We are also troubled, under the unusual circumstances of this case, by the fact that the deterioration of the Subject Children’s bonds with their siblings was due, in not-insignificant part, to the way this case was litigated, even apart from the removal and placement decisions. Notably, DCFS did not take any systematic steps to facilitate visitation between the three (and sometimes four) sibling groups that were placed in different homes, but instead “left that mostly up to [the] foster parents.”[11] In particular, DCFS did not allow the Subject Children to visit Grandparents with the rest of the Children during the summer of 2020. And Grandmother offered her perception that it had been difficult to get Foster Mother to facilitate telephonic or virtual visits between the older siblings and the Subject Children during the older siblings’ summer 2020 visit. Under these circumstances, it is no wonder that the Subject Children’s bond with their siblings began to wane. It is intuitive that relationships can become more distant without meaningful contact. To at least some degree, the deterioration of the sibling bonds is attributable to DCFS’s (and the various foster parents’) actions in failing to facilitate regular sibling visitation.

¶45 In addition, DCFS’s delay in starting the ICPC process appears to have also played a role in the way this case turned out. In July 2019, the juvenile court ordered that “an ICPC” be conducted to explore the possibility of placing the Children with Grandparents in New Mexico. But DCFS—perhaps intentionally, according to one of the caseworkers—delayed acting upon the court’s ICPC order for nearly four months, until late October 2019. Delays in obtaining ICPC reports are not necessarily uncommon, and can be just an unfortunate part of the process of communicating between agencies of different states. But such delays are troubling when they are attributable to a state agency’s refusal to even get the process started, despite a court order requiring it to do so. Although DCFS could not have known it at the time, its failure to timely initiate the ICPC process may have mattered more in this case than in others, because of the eventual emergence, in early 2020, of the COVID-19 pandemic.

¶46 Recall that, in the fall of 2019 and early 2020, after DCFS filed its termination petition, all parties were on the same page: they were working toward placing the Children—all of them— with Grandparents in New Mexico. Indeed, it was “highly anticipated by all parties that the results of the ICPC [would] resolve all issues pending before the Court.” But before a placement with Grandparents could happen, the ICPC report needed to be completed, and the parties twice stipulated to continuances of the termination trial specifically so that the ICPC report could be finished, and so that they could “ensure [that] the Grandparents kn[ew] what they [were] getting into.” These continuances resulted in the trial being rescheduled for late March 2020, which in turn resulted in the trial being postponed again because of the emergence of the pandemic. The ICPC report was not completed until October 2020, and by then, the Subject Children had been with Foster Family for more than a year and had begun to develop meaningful bonds there. Under these circumstances, it is hard not to wonder what might have happened if DCFS had begun the ICPC process in July 2019, as it had been ordered to do.[12]

¶47 Next, the court—appropriately—discussed at some length the Subject Children’s bond with Foster Family. There is no doubt that Foster Family is an appropriate adoptive placement, and that Foster Parents are doing a wonderful job caring for the Subject Children. The court made unchallenged findings in this regard, noting that Foster Parents are the ones “who care for them on a daily basis, feed them, hug them, and put them to bed,” and that, from the Subject Children’s point of view, Foster Parents “are their parents.” We do not minimize the significance of these findings. They are important, and are a necessary condition to any adoption-related termination of parental rights. After all, if an adoptive placement is not working out, an adoption into that placement is very unlikely to be finalized.

¶48 But while the existence of an acceptable adoptive placement is a necessary condition to any adoption-related termination, it is not a sufficient one. At some level, we certainly understand the impulse to want to leave children in—and perhaps make permanent—a putative adoptive placement in which the children are thriving. And we recognize—as the juvenile court observed here—that taking a child out of a loving adoptive placement in order to reunite the child with family can be detrimental to the child, at least in the short term. But in order to terminate parental rights to facilitate an adoption, a court must have before it more than just a loving and functional adoptive placement from which it would be emotionally difficult to remove the child. Termination of parental rights must be “strictly necessary to promote the . . . welfare and best interest” of the children in question. See In re B.T.B., 2020 UT 60, ¶ 76, 472 P.3d 827. And in order to reach that conclusion, a court must do more than make a finding about the acceptability of the adoptive placement—it must examine potential options, short of termination, that might also further the best interest of the children in question. Id. ¶¶ 66–67. In particular, and especially in light of our legislature’s guidance that families should be kept together whenever possible, see Utah Code Ann. § 80-4-104(8), (12), courts must investigate kinship placement possibilities, including options for permanent guardianship. And if one of those placements turns out to be an option that can promote the child’s best interest “just as well,” then it is by definition not “strictly necessary” to terminate the parent’s rights. See In re B.T.B., 2020 UT 60, ¶¶ 66–67.

¶49 Moreover, in this context courts must keep in mind the “clear and convincing” evidentiary standard. See In re G.D., 2021 UT 19, ¶ 44, 491 P.3d 867. If there exists a completely appropriate kinship placement through which the family can remain intact, the “strictly necessary” showing becomes significantly more difficult to make. We stop well short of holding that, where an acceptable kinship placement exists, it can never be strictly necessary to terminate a parent’s rights. But in such cases, the proponent of termination must show, by clear and convincing evidence, that the adoptive placement is materially better for the children than the kinship placement is. After all, if the two placements can each “equally protect[] and benefit[]” the child’s best interest, then by definition there does not exist clear and convincing evidence in favor of terminating a parent’s rights. See In re B.T.B., 2020 UT 60, ¶ 66. And in this case, the necessary showing was not made.

¶50 Perhaps most significantly, there is not a hint of any evidence in the record before us that placement with Grandparents is flawed. The ICPC report (finally) came back clean; that report raised no concerns with regard to Grandparents, and concluded that their home would be an appropriate placement for the Children. The five older siblings had a lengthy visit with Grandparents in the summer of 2020, and all went well. And just before trial, the parties stipulated that the five oldest

Children should be placed with Grandparents on a long-term basis, subject to a permanent custody and guardianship arrangement. The court approved this stipulation, agreeing with the parties “that a permanent custody and guardianship arrangement” would serve the best interest of the five oldest Children. It even found that Grandparents are “certainly appropriate caregivers.” And on appeal, all parties agree that Grandparents are acceptable and loving caregivers; no party has even attempted to take issue with Grandparents’ ability to provide a loving and stable home for the Children. There is no dispute that Grandparents have the capacity and ability, from a financial standpoint as well as otherwise, to care for all seven Children, and stand ready and willing to do so, regardless of whether that takes the form of an adoption or a permanent guardianship arrangement.

¶51 The juvenile court opted to go in a different direction, primarily for three related reasons. First, it emphasized how “detrimental” and “destabilizing” it would be for the Subject Children to be removed from Foster Family. Second, the court emphasized that the Subject Children need stability and permanency, and determined that adoption—as opposed to guardianship—could best provide that stability. Third, the court expressed concern that, absent an adoption, Parents might attempt—at some later point in time—to get back into the lives of the Subject Children, and perhaps even “regain custody,” an eventuality the court believed would “pose a risk to” the Subject Children. In our view, these stated reasons do not constitute clear and convincing reasons to terminate Parents’ rights.

¶52 With regard to permanency and stability, our supreme court has recently clarified that the mere fact that adoptions—as a category—provide more permanency and stability than guardianships do is not enough to satisfy the statutory “strictly necessary” standard. See In re J.A.L., 2022 UT 12, ¶ 24, 506 P.3d 606. In that case, the court held that the lower court fell into legal error in concluding that [a guardianship option] would not provide the “same degree of permanency as an adoption.” That is not the question under our law. A permanent guardianship by definition does not offer the same degree of permanency as an adoption. And there is always some risk that the permanent guardianship could come to an end, or be affected by visitation by the parent. If these categorical concerns were enough, termination and adoption would be strictly necessary across the board. But such categorical analysis is not in line with the statutory standard.

Id. The court then noted that, as part of the “strictly necessary” analysis, a court “must assess whether a permanent guardianship can equally protect and benefit the children in the case before it.” Id. ¶ 25 (quotation simplified). The court made clear that the statutory requirements were “not met by the categorical concern that a permanent guardianship is not as stable or permanent as an adoption,” and instead “require[] analysis of the particularized circumstances of the case before the court.” Id.

¶53 As applied here, this recent guidance renders insufficient—and more or less beside the point—the juvenile court’s apparent belief that an adoption was better than a guardianship simply because it was more permanent and more stable. All adoptions are at least somewhat more permanent than guardianships, and therefore that conclusion, standing alone, is not enough to constitute clear and convincing evidence supporting termination. It is certainly appropriate for courts in termination cases to discuss the potential need for permanency and stability. But in doing so, and when selecting an adoptive option over a guardianship option, a court in a termination case must articulate case-specific reasons why the added layer of permanency that adoptions offer is important and why adoption would better serve the best interest of the children in question than the guardianship option would.

¶54 The court’s concern about the possibility of Parents reentering the Children’s lives is, on this record, not an adequate case-specific reason. As an initial matter, it—like the lack of permanency—is a feature of the entire category of guardianships. It will always be true that, in a guardianship, a parent retains what the juvenile court here referred to as “residual rights,” while in an adoption the parent’s rights are terminated forever. This kind of categorical concern is not enough to constitute clear and convincing evidence in support of termination.

¶55 Moreover, we question whether—in many cases, including this one—a parent’s desire to re-engage in their child’s life should be viewed as negatively as the juvenile court appeared to view it. Here, we return to the statutory guidance offered by our legislature: that “family life should be strengthened and preserved” “[w]herever possible,” and that it is usually “in the best interest and welfare of a child to be raised under the care and supervision of the child’s natural parents.” See Utah Code Ann. § 80-4-104(8), (12). We note our own observation that, “[i]n many cases, children will benefit from having more people—rather than fewer—in their lives who love them and care about them.” See In re B.T.B., 2018 UT App 157, ¶ 55, 436 P.3d 206, aff’d, 2020 UT 60, 472 P.3d 827. And we acknowledge Parents’ point that a parent whose child has been placed in a permanent guardianship arrangement in a child welfare proceeding has no independent right to petition to change or dissolve the guardianship. See Utah Code Ann. § 78A-6-357(3)(d) (LexisNexis Supp. 2022). Only the guardian has that right. See id. And there is no evidence, in this record, that Grandparents will be particularly susceptible to inappropriate pressure from Parents to seek a change in the terms of any guardianship arrangement. In addition, there is no evidence that, if the Subject Children were placed into a guardianship with Grandparents, it would be harmful to them for Parents to retain the possibility of maintaining some form of contact with them (as they have with regard to the other Children), as supervised by court order and by Grandparents acting as guardians.[13] In other words, the juvenile court did not emphasize any case-specific issues that make us especially concerned about the possibility of Parents attempting to re-enter the Children’s lives at some point in the future.

¶56 We are thus left with the court’s concern—shared by the Subject Children’s therapists—about the disruption in the Subject Children’s lives that would be caused by removing them from Foster Family and placing them with Grandparents, alongside their siblings. This is of course a legitimate concern, and one that courts should take into account in situations like this. If and when the Subject Children are ever placed into a guardianship with Grandparents, and taken from Foster Family, that will no doubt be traumatic for them, at least in the short term. We acknowledge the validity of such concerns, and do not intend to minimize them. But in this case, focusing too much on this more-present possibility of emotional trauma risks minimizing the longer-term emotional trauma that permanent severance of the sibling bonds will likely someday trigger. In this specific and unique situation, the juvenile court’s discussion of potential emotional trauma associated with removal from Foster Family does not constitute clear and convincing evidence supporting termination.

¶57 For all of these reasons, we conclude that the juvenile court’s best-interest determination was against the clear weight of the evidence presented at trial. The State failed to prove, by clear and convincing evidence, that termination of Parents’ rights to Subject Children was strictly necessary, especially given the presence of another available and acceptable option—permanent guardianship with Grandparents, alongside their five siblings— that would not require permanent severance of familial bonds and that would serve the Subject Children’s best interest at least as well as adoption. See In re G.D., 2021 UT 19, ¶ 75 (“[W]hen two placement options would equally benefit a child, the strictlynecessary requirement operates as a preference for a placement option that does not necessitate termination over an option that does.”). Under the unique circumstances of this case, termination of Parents’ rights is not strictly necessary to promote the Subject Children’s best interest.

CONCLUSION

¶58 Accordingly, we reverse the juvenile court’s order of termination, and remand the case for further proceedings consistent with this opinion. We offer a reminder that best-interest determinations are to be conducted in present-tense fashion, as of the date of the trial or hearing convened to consider the matter. See In re Z.C.W., 2021 UT App 98, ¶ 14, 500 P.3d 94. Our holding today is that, based on the evidence presented at trial in October

2020, termination of Parents’ rights was not strictly necessary to promote the Subject Children’s best interest. On remand, the juvenile court should re-assess best interest. If nothing has materially changed since October 2020, then we expect the court to enter orders designed to work (perhaps quite gradually, in the court’s discretion) toward integration of the Subject Children into a placement with Grandparents, alongside their siblings. But if there is evidence that matters have materially changed since October 2020, the court may need to consider that evidence in some fashion, see id. ¶ 15, and re-assess best interest based on the situation at the time of the hearing.

 

[1]Senior Judge Kate Appleby sat by special assignment as authorized by law. See generally Utah R. Jud. Admin. 11-201(7).

[2] In this opinion, for ease of reference, we refer to E.H.’s paternal grandparents as “Grandparents,” and we refer to them individually as “Grandmother” and “Grandfather,” even though any biological relationship exists only with E.H. and not with the other six Children.

 

[3] L.H. was removed from the home for a one-month period during this time, again because of concerns that he was malnourished and “failing to thrive.”

[4] These arrangements were a bit fluid during this period—at one point, the oldest four Children were combined into one placement, and the fifth-oldest was placed with Foster Family along with the Subject Children. However, the mother of the Foster Family testified at trial that, after a while, the fifth child often got upset at how his younger siblings were becoming so attached to Foster Family, and so she eventually asked that he be placed elsewhere.

 

[5] The abbreviation “ICPC” refers to the Interstate Compact on the Placement of Children, an interstate agreement that has been adopted by all fifty states. See Utah Code Ann. § 62A-4a-701 (LexisNexis 2018). The ICPC allows child welfare agencies from different states to more easily cooperate regarding placement of children across state lines.

 

[6] See Administrative Order for Court Operations During Pandemic, Utah Supreme Court (Mar. 13, 2020), https://www.utcourts.gov/alerts/docs/20200311%20-%20Pandem ic%20Administrative%20Order.pdf [https://perma.cc/3EGH-3V3Z].

[7] The facts recited in this paragraph regarding Parents’ communications with their various attorneys are not in the record, but are included in the materials submitted on appeal in support of Parents’ claim of ineffective assistance of counsel.

[8] Parents also raise other issues, including an assertion that Private Counsel rendered deficient performance that prejudiced them at the termination trial. Although we acknowledge the strength of Parents’ assertion that Private Counsel rendered ineffective assistance, and discuss in passing the problems they had with him, we need not reach the merits of that claim or any of their other claims because we reverse on the merits of their main claim.

[9] A court’s consideration of the importance of sibling relationships is arguably even more important in the termination/adoption context than it is in the child custody context, simply because of the permanency of termination and adoption. When split custody is ordered in a domestic case, the children will not live together all the time, but their overarching family relationship remains intact; they will remain siblings and, depending on visitation schedules, they will likely see each other several times each month. But when—as in this case—siblings are separated for purposes of adoption, the familial bonds, including the sibling bonds, are more permanently affected.

[10] Parents assert that the juvenile court erred by limiting its best interest inquiry to the Subject Children, rather than considering whether termination of Parents’ rights to the Subject Children was in the best interest of all the Children. Although we are far from persuaded by Parents’ assertion, we need not further concern ourselves with it, because for purposes of our analysis we assume, without deciding, that the juvenile court properly focused on the Subject Children when conducting the best-interest inquiry. Even assuming the propriety of that more limited focus, we nevertheless find the court’s ultimate best-interest determination unsupported by clear and convincing evidence.

[11] DCFS’s actions in this regard were arguably contrary to statute. See Utah Code Ann. § 62A-4a-205(12)(a) (LexisNexis Supp. 2022) (stating that DCFS must “incorporate reasonable efforts to . . . provide sibling visitation when siblings are separated due to foster care or adoptive placement”); see also id. § 80-3307(12)(a) (requiring DCFS to “incorporate into the child and family plan reasonable efforts to provide sibling visitation if . . . siblings are separated due to foster care or adoptive placement”).

[12] The juvenile court addressed this issue in its written ruling, and downplayed the significance of the delayed ICPC report. It expressed its view that, even if DCFS had timely requested the ICPC report, the case would not have come out differently. First, it assumed that the ICPC process would have taken a year to complete even if the report had been requested in July 2019. We wonder about that, and in particular wonder whether any of the delays in completing the ICPC report were due to the emergence of the pandemic. But more to the point, the court indicated that it would have made the same termination decision in July 2020 as it made in October 2020. However, the court does not account for the fact that all parties to the case, including DCFS, were on the same page at least as late as March 12, 2020, and anticipated placing all the Children with Grandparents as soon as the ICPC report came back. Had the ICPC report come back significantly earlier, while the parties were still in agreement, things almost certainly would have been different. We doubt that the juvenile court would have rejected the parties’ stipulation on that point, just as it did not reject the parties’ October 2020 stipulation regarding the five oldest Children.

[13] Indeed, concerns about Parents potentially getting back into the lives of the Subject Children appear especially overblown under the facts of this case, given the fact that the juvenile court approved the stipulation for a permanent guardianship arrangement for the other five Children. The court does not convincingly explain why it is concerned for the Subject Children and not the others, stating only that the potential for the Parents to “regain custody . . . might not be devastating for the older children, but it will certainly be devastating to” the Subject Children. Presumably, this is a reference to the fact that the Subject Children are younger and have less of a pre-existing relationship with Parents and the other Children, an aspect of this case that we have already discussed.

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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 re G.B. – 2022 UT App 98

2022 UT App 98

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF G.B. AND A.C.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.

T.R.B.,
Appellant,
v.
STATE OF UTAH,
Appellee.

Opinion

No. 20210396-CA

Filed August 4, 2022

Fifth District Juvenile Court, Cedar City Department

The Honorable Troy A. Little

No. 1195807

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 RYAN D. TENNEY authored this Opinion, in which
JUDGE MICHELE M. CHRISTIANSEN FORSTER and JUSTICE DIANA
HAGEN concurred.[1]

TENNEY, Judge:

¶1        The Division of Child and Family Services (DCFS) removed G.B. and his maternal half-brother, A.C., from their home in connection with their mother’s arrest on drug-related charges and reports of domestic violence at the home. The juvenile court later adjudicated the two children as “abused and neglected,” and as part of this determination, it made a subsidiary finding that G.B.’s father, T.R.B. (Father), “has issues related to the use of illegal substances.” Based on this finding, the court ordered Father to complete a substance abuse evaluation and submit to random drug testing.

¶2        Father now challenges the juvenile court’s abuse determination as well as its disposition order. For the reasons set forth below, we affirm.

BACKGROUND

Petition for Protective Custody

¶3        In February 2021, two-year-old G.B. and six-year-old A.C. were living with Father and their biological mother (Mother). Father is G.B.’s biological father, but he’s not A.C.’s. That month, DCFS filed a verified petition seeking protective custody of the children on the basis that they were “abused, neglected, or dependent.” The petition set forth several sets of facts in support of the “abuse, neglect, or dependency” allegations.

¶4        First, the petition alleged that Mother and Father “had recently engaged in Domestic Violence” and that the children had been “exposed” to that domestic violence. It alleged that when police responded to a recent domestic disturbance at the home, Mother told officers that Father had “pushed [her] into the tub [and] rammed her head into the wall, before throwing her into the wall.” It also noted that A.C. reported that Mother and Father “say mean words to each other,” that A.C. “has had to go upstairs so that he would not have to hear the fighting,” and that Father “broke his door when upset on one occasion.”

¶5        Second, the petition alleged that DCFS had recently received “information” indicating that Father “had hit a child on the back hard enough to leave bruising.”

¶6        Third, the petition made a number of allegations about the living conditions at the family home. Of note, it alleged that the home was “observed to have broken pieces of glass outside” and “a nail . . . in close proximity to the children’s toys.” It also alleged that the “children were observed between February 8, 2021 and February 12, 2021 to be dirty, [with] hair so messy that knots had to be cut out” and “feet which were black.”

¶7        Finally (and most significantly for purposes of this appeal), the petition included several allegations about illegal drug use by both Mother and Father.

¶8        With respect to Mother, the petition asserted that she had recently been arrested for driving while intoxicated and that the arresting officer had discovered illegal drugs and drug paraphernalia in her backpack. The petition also detailed other instances in which illegal drugs or drug paraphernalia had been found near Mother, including an instance in which drugs and paraphernalia were found in a place that “would have been accessible by the children.”

¶9        The petition further alleged that Father “has issues related to the use of illegal substances.” According to the petition, “Mother has stated that she uses heroin with [Father] daily and that he uses approximately a gram a day.” The petition also alleged that when police responded to the domestic disturbance described above, Mother told them “that she and [Father] got into an argument after she discovered [Father] and another individual getting ready to use substances.” According to the petition, responding officers had searched a “camp trailer” on the property and found “several pipes, tinfoil with heroin residue, a burned spoon, and syringes.”[2]

¶10 The petition did note, however, that Father “denied any use of illegal substances or that he was aware the Mother used illegal substances.” And it further noted that Father had “claimed [that] any paraphernalia” found in the trailer “belonged [to his friend].” But the petition also alleged that about two months after the paraphernalia was found in the trailer, Father refused to let a DCFS caseworker inside that trailer and declined to take a drug test. And it alleged that Father then “admitted” to the caseworker that he and Mother smoked cigarettes in the trailer where the drug paraphernalia was found.

Pretrial Proceedings and Adjudication Hearing

¶11      The juvenile court held a shelter hearing after the petition was filed. At the close of the hearing, the court approved the removal of the children and placed them in DCFS’s temporary custody.

¶12      On March 23, 2021, the court held a pretrial hearing. At that hearing, Mother responded to the allegations in the petition pursuant to rule 34(e) of the Utah Rules of Juvenile Procedure, meaning that while she neither admitted nor denied the allegations, she agreed that the court would treat the allegations as 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.”). Father continued to deny the allegations pertaining to his substance abuse, however, so the court scheduled an adjudication hearing to address the allegations against him. The court also found the children to be neglected and abused by Mother and ordered DCFS to develop a child and family service plan for the family and each child, to set a primary permanency goal of reunification, and to provide reunification services to Mother. That plan required Mother to, among other things, “participate and engage in a parenting program to increase parenting knowledge and behavior.” See Utah Code Ann. § 62A-4a-205(8)(d) (LexisNexis Supp. 2021) (“[C]hild and family plans shall address problems that . . . keep a child in placement . . . .”).

¶13      At his adjudication hearing, Father entered a rule 34(e) plea of his own regarding most of the allegations in the petition, but he still denied the allegation that he “has issues related to the use of illegal substances.” The hearing was accordingly limited to determining whether Father had “issues related to the use of illegal substances.” As a further point of specificity, Father did not dispute that drug paraphernalia was “found on the property”; instead, Father only disputed that the paraphernalia “pertain[ed] to him.”

¶14 The State presented three witnesses: an officer (Officer) who was present when police found the drug paraphernalia in the camp trailer, Mother, and the DCFS investigator (Investigator) assigned to the case.

¶15      Officer testified that when he responded to the domestic disturbance, Mother told him that she and Father started fighting because Father “was out with his girlfriend in the camp trailer using drugs.” According to Officer, Mother told him she “had seen [Father] using out [in the trailer] many times.” Officer also testified that another officer found drug paraphernalia in the trailer that day, including “several used syringes,” “used tinfoil with burn marks on it consistent with smoking illegal substances,” “a pipe or two,” and “a spoon with burnt residue in it.” Officer further testified that he spoke with Father on the phone a week later and that Father admitted during that conversation that his friend “used drugs . . . out in the trailer.” Finally, Officer testified that Father offered to “submit to a drug test” but that Officer never actually had him complete one.

¶16 In her testimony, Mother confirmed that she had told police that Father “had been using illegal substances in the trailer on the property.” She also confirmed that she had reported that Father “was using one gram of heroin daily.” But Mother also claimed that she had only “made an assumption that he was using heroin” because she “had picked it up for him” and that she “had never actually seen him doing it.” Mother also testified that she and Father “smoke[d] cigarettes” in the trailer. On cross-examination, Mother stated that she was “satisfied that [Father] was not using drugs” after seeing the results of a drug test that he had taken for work in March 2021.

¶17      Finally, Investigator testified that he spoke with Father in February 2021 and that Father’s “pupils were very pinpoint” at that time. Investigator said that when he asked Father about Mother’s drug use, Father “claimed that he didn’t know anything that was going on with her.” Investigator further testified that when he asked to see the trailer where police had found drug paraphernalia, Father “den[ied him] access.” Investigator said that Father also initially “claimed it wasn’t his trailer . . . and that just no one goes in it.” But when Investigator pressed, Father “admitted that he goes inside to smoke cigarettes.” Investigator said that he asked Father to take a drug test but that Father “declined.” Finally, Investigator testified that he spoke with Mother in February 2021 and that Mother told him that she and Father “had used together, that she was using more than him, specifically heroin, but that they were using together daily.”

¶18      After the State rested, Father testified. He claimed that he had not “used any illegal substances” “in the last five years” and that he takes “random drug tests and at least one drug test a year” for his work as a truck driver. Father also claimed that he had passed drug tests administered by DCFS somewhere between 18 and 24 months earlier.

¶19      When asked about the trailer, Father said that it belonged to his friend and that he was “just allowing her to put her trailer on [his] property.” Father testified that he was “aware [his friend] ha[d] used illegal substances in the past,” but he denied that the drug paraphernalia was his. On cross-examination, Father admitted that he sometimes used the trailer “as a storage unit.” He also admitted that during the winter of 2020, he went into it to smoke cigarettes.

Adjudication Ruling

¶20 After closing arguments, the court found “by clear and convincing evidence” that:

·         “On or about December 28, 2020, Law Enforcement discovered drug paraphernalia including several pipes, tinfoil with heroin residue, a burned spoon, and syringes in a camper on the property where the family lived.”

·         “On or about February 5, 2021, [DCFS] contacted [Father]. [Father] refused to allow the caseworker to see inside the trailer but admitted that they (the Mother and [Father]) do smoke (cigarettes) inside of it. [Father] was asked to drug test for [DCFS], and he has declined to do so.”

·         “Mother has stated that she uses heroin with [Father] daily and that he uses approximately a gram a day.”

·         Mother testified “that she gets heroin for [Father], and she gives it to him.”

·         “Father has denied any drug use or any knowledge of drug use by the Mother.”

¶21      Drawing on these findings, the court found by “clear and convincing evidence” that Father “has issues related to the use of illegal substances.” Elaborating on this, the court referenced the fact that there was “paraphernalia and some residue found in a location where both [Mother] and [Father] say they’ve been and they frequent often,” meaning the trailer. And referring again to Father’s admitted habit of smoking cigarettes in that trailer, the court opined that Father was just “way too close” to illegal drugs and that this was “concerning to the Court.”

¶22      The court accordingly adjudicated the children as “abused and neglected” as to Father. The court determined that this was “true by clear and convincing evidence,” and it based this determination on both Father’s partial rule 34(e) response and its finding that Father “has issues related to the use of illegal substances.”

Disposition Hearing

¶23      The court later held a disposition hearing. There, the State directed the court’s attention to the child and family plan that DCFS had submitted. That plan listed several proposed responsibilities for Father, including the requirement that he complete a substance abuse evaluation and submit to random drug testing. The State asked the court to impose those requirements on Father.

¶24 After hearing from Father’s counsel, the court entered its disposition order. In that ruling, the court determined that “all” the parental responsibilities proposed in the child and family plan were warranted, including the requirement that Father complete a substance abuse evaluation and submit to random drug testing. The court also ordered Father to “remain drug and alcohol free” until the court “hear[d] otherwise from [Father’s] substance abuse evaluation.”

¶25      Father timely appealed.

ISSUES AND STANDARDS OF REVIEW

¶26 Father first challenges the juvenile court’s determination that the children were abused. It’s somewhat unclear from his brief whether Father’s challenge rests on factual or legal grounds. As explained below, however, we need not decide which challenge Father is making (or, by extension, which standard of review would apply) because, even without the abuse determination, the juvenile court still had jurisdiction to enter disposition orders based on its unchallenged neglect determination.

¶27 Father also challenges the juvenile court’s disposition order, and he does so on two fronts. First, he argues that the disposition order was improper because it was based on an unsupported finding that he “has issues related to the use of illegal substances.” This court “review[s] the juvenile court’s findings of fact for clear error.” In re G.D., 2021 UT 19, ¶ 37, 491 P.3d 867 (quotation simplified). And 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 B.C., 2018 UT App 125, ¶ 2, 428 P.3d 18 (per curiam). Second, Father argues that the court “erred in making a disposition order [that] includ[ed] drug testing, evaluation, and treatment.” “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.” In re E.R., 2021 UT 36, ¶ 31, 496 P.3d 58 (quotation simplified).

ANALYSIS

I. Abuse Determination

¶28 Father first challenges the juvenile court’s determination that the children were abused.

¶29      As an initial matter we note that although DCFS’s petition alleged that the children were abused—including an allegation that Father “had hit a child on the back hard enough to leave bruising”—Father’s partial rule 34(e) response only denied the allegation that he “has issues related to the use of illegal substances.” From this alone, we could conclude that Father’s challenge is meritless. But in any event, we need not decide this challenge on its merits because Father has not challenged the court’s separate and independent determination that the children were neglected.

¶30 “Utah’s juvenile courts are creatures of statute, and thus are courts of limited jurisdiction.” In re B.B., 2002 UT App 82, ¶ 12, 45 P.3d 527. “Because they are courts of limited jurisdiction, juvenile courts are allowed to do only what the legislature has expressly authorized.” Id.

¶31      Utah Code section 78A-6-103 defines the juvenile court’s jurisdiction. Relevant to this appeal, that section states that a juvenile court “has original jurisdiction over any proceeding concerning . . . a child who is an abused child, neglected child, or dependent child.” Utah Code Ann. § 78A-6-103(2)(a) (LexisNexis Supp. 2021). Once jurisdiction is established under that section, “the court may order reasonable conditions to be complied with by a minor’s parents or guardian, a minor’s custodian, or any other person who has been made a party to the proceedings.” Id. § 78A-6-117(2)(q)(i).[3]

¶32 As noted, the juvenile court adjudicated the children as “abused and neglected,” thereby conferring jurisdiction under section 78A-6-103(2)(a). Importantly, jurisdiction could properly be based on either the abuse determination or the neglect determination. See id. § 78A-6-103(2); see also In re S.F., 2012 UT App 10, ¶ 33, 268 P.3d 831 (“Importantly, once a child has been adjudicated as neglected, the juvenile court has continuing jurisdiction over the child . . . .”); cf. In re B.T., 2009 UT App 182, ¶ 10, 214 P.3d 881 (holding that the facts were inadequate “to support a determination of neglect” but remanding “for a finding of dependency”).

¶33 While Father has challenged the abuse determination on appeal, he has not challenged the separate determination that the children were neglected. Because of this, we have no need to decide his challenge to the abuse determination. After all, even if we accepted Father’s arguments about the abuse determination, the unchallenged neglect determination would still provide the juvenile court with jurisdiction, thereby giving the juvenile court authority to “order” Father to comply with “reasonable conditions” following a disposition hearing. Utah Code Ann. § 78A-6-117(2)(q)(i). Indeed, Father appears to agree. In his brief, he specifically “clarifie[d] that he is not arguing that he should not be adjudicated and found to be within the jurisdiction of the Court.”

¶34      In light of this concession, it is not clear what Father hopes to gain by challenging the abuse determination. There are perhaps some collateral consequences associated with an abuse determination that do not follow from a neglect determination. But other than a vague (and unsupported) reference to “presumptions that reunification services should not be offered” in cases of abuse, Father has not briefed any such difference. Moreover, Father is not challenging the imposition of any such collateral consequences in this case. Instead, the only relief that Father seeks in this appeal is a reversal of the conditions that were imposed on him in the disposition hearing. Because the unchallenged neglect determination provided the court with jurisdiction to order those conditions, we decline to address Father’s challenge to the court’s abuse determination. See M.F. v. J.F., 2013 UT App 247, ¶ 11, 312 P.3d 946 (recognizing that “[o]nce the juvenile court has adjudicated the child as falling under its jurisdiction, it has ongoing jurisdiction over that child and may make dispositions by court order” (quotation simplified)).

II. Disposition Order

¶35 As noted, the juvenile court’s neglect determination provided it with jurisdiction to “order reasonable conditions to be complied with by [the children’s] parents or guardian, [the children’s] custodian, or any other person who has been made a party to the proceedings.” Utah Code Ann. § 78A-6-117(2)(q)(i). Here, after a disposition hearing, the juvenile court ordered Father to complete a substance abuse evaluation and submit to random drug testing.

¶36 Father now challenges that order on two fronts. First, he notes that these requirements were predicated on the court’s finding that he “has issues related to the use of illegal substances.” According to Father, that finding was an “abuse of discretion.” And second, Father argues that the order itself was unwarranted because it was not supported by the court’s findings.

A.        Finding Related to Illegal Substances

¶37 Father first challenges the court’s finding “related to drugs and paraphernalia.” Though Father’s brief is somewhat unclear on this point, we understand him to be challenging the court’s finding that he “has issues related to the use of illegal substances.”

¶38      As an initial matter, Father suggests that we should review this for an abuse of discretion. This suggestion is misplaced, however, because the ruling in question was a factual determination. See generally In re K.D.N., 2013 UT App 298, ¶ 8, 318 P.3d 768 (“Juvenile courts are required to make comprehensive and detailed factual findings in support of their ultimate conclusions.”). Because it was a factual determination, Father must show that the finding was clearly erroneous. See In re G.D., 2021 UT 19, ¶ 37, 491 P.3d 867. And under our accepted standards, 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 B.C., 2018 UT App 125, ¶ 2, 428 P.3d 18 (per curiam).

¶39      Properly framed, Father’s argument is that this finding was clearly erroneous because there were “no indications or medical assessments of drug ingestion” by FatherBut as noted, the juvenile court didn’t directly find that Father used drugs. Rather, it found that Father “has issues related to the use of illegal substances.” And in support of that finding, the court entered a series of subsidiary findings, all of which Father has either conceded or at least failed to successfully challenge on appeal. For example:

·         The court found that police “discovered drug paraphernalia including several pipes, tinfoil with heroin residue, a burned spoon, and syringes in a camper on the property where the family lived.” And relatedly, the court also found that Father frequented that trailer to smoke cigarettes. In his brief, Father admits that drug “[p]araphernalia was found in a trailer he had been in and used for smoking.”

·         The court found that in February 2021, Father “refused to allow [a DCFS] caseworker to see inside the trailer.” Father does not challenge this finding on appeal.

·         The court found that in February 2021, a DCFS investigator asked Father to take a drug test, but that Father declined to take the test. Father has not challenged this finding on appeal, instead simply arguing that this refusal shouldn’t matter because he had previously offered to take a drug test and had allegedly “tested clean” when he took a “test for his employer” on a different occasion.

·         The court found that “Mother has stated that she uses heroin with [Father] daily and that he uses approximately a gram a day.” Father does not challenge the court’s finding that Mother said this. Instead, he simply notes that Mother later retracted this claim. But the court acknowledged that Mother had retracted the claim. And even so, the court still found (and thought it significant) that Mother had said that Father used drugs.

·         Relatedly, the court found it “concerning” and “disturbing” that Mother had testified “that she gets heroin for [Father], and she gives it to him.” While Father emphasizes Mother’s “lack of credibility,” “we do not disturb [the juvenile court’s] determinations of the witnesses’ credibility because it “is in an advantaged position with respect to the parties and the witnesses.”[4] In re G.D.B., 2019 UT App 29, ¶ 20, 440 P.3d 706 (quotation simplified).

·         Finally, the court found that Mother had drug problems of her own. In his brief, Father admits that “there is overwhelming evidence of the mother’s drug use,” including admissions by Mother “that she has a significant drug problem.”

¶40 Again, the finding at issue was that Father “has issues related to the use of illegal substances.” And as the court later explained, this finding was essentially that Father was “way too close” to illegal drugs. The subsidiary findings described above both individually and collectively support this because they show that Father voluntarily placed himself in close proximity to both people who used drugs and to illegal drugs themselves. Father therefore has not shown that this finding was “against the clear weight of the evidence.” In re B.C., 2018 UT App 125, ¶ 2.

B.        Drug Testing Requirement

¶41 At the disposition hearing, the court ordered Father to submit to “drug testing, evaluation, and treatment.” Father argues that this order was unwarranted.

¶42 As explained, when a juvenile court has adjudicated a minor child as abused, neglected, or dependent, “the court may order reasonable conditions to be complied with by a minor’s parents or guardian, a minor’s custodian, or any other person who has been made a party to the proceedings.” Utah Code Ann. § 78A-6-117(2)(q)(i). Whether a condition is “reasonable” depends on the circumstances of each case. See In re S.A., 2016 UT App 191, ¶ 7, 382 P.3d 642 (per curiam). Helpful considerations include whether the condition is “reasonably related to the juvenile court’s factual finding[s],” “proportionate to the concern raised by” those findings, and “reasonably calculated to serve the best interest of the child.” Id. ¶ 7. Furthermore, we can overturn the juvenile court’s decision only “if it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” In re E.R., 2021 UT 36, ¶ 31, 496 P.3d 58 (quotation simplified).

¶43      Our decision in In re S.A. is illustrative. There, the “juvenile court found that the facts did not establish abuse or neglect but entered an adjudication order stating that the child was dependent as to [the father].” In re S.A., 2016 UT App 191, ¶ 2. In a subsequent disposition order, the court then ordered that the father “complete a domestic violence assessment.” Id. ¶ 5. The father challenged that order on appeal, claiming that he could not be required to complete the assessment “because there was no neglect adjudication” and because “the juvenile court found no fault by” him. Id. We upheld the order on appeal, however,

concluding that it was “reasonably related to the juvenile court’s factual finding that the parents have hit each other on occasion in the presence of the child.” Id. ¶ 7 (quotation simplified). We also concluded that the condition was “proportionate to the concern raised by that finding” and was “reasonably calculated to serve the best interest of the child.” Id.

¶44      Here, Father claims that the court could not require him to submit to drug testing and treatment without first finding that he actually “used drugs” himself. Father argues that such a finding was required by Utah Code section 62A-4a-205, under which “a child and family plan may only include requirements that . . . address findings made by the court.” Utah Code Ann. § 62A-4a-205(8)(h).

¶45 But while the court didn’t find that there was clear and convincing evidence that Father uses drugs, it did find that “Father is connected to too many people and locations which raises concerns for the Court that he may be abusing substances.” (Emphases added.) And there was ample support for this concern. In addition to its proximity-based findings, the court found that Mother had told both Officer and Investigator that Father used drugs, and it further found that Father had been resistant on at least one occasion to DCFS’s request that he take a drug test.

¶46      As also discussed, the court’s findings showed that Father frequently chose to be around illegal drugs and people who use them. Again, Father commonly associated with both Mother and his friend, both of whom had drug problems; he frequented a trailer on his property in which drug paraphernalia was found; and he was resistant to DCFS’s efforts to look inside that trailer. As noted, this trailer was located on the property where Father lived with the children. And finally, the children’s other caretaker (Mother) has admitted that she has drug problems of her own, and all of this arises against the backdrop of the court’s unchallenged determination that the children were neglected.

¶47      There are obvious dangers associated with advertently or

even inadvertently exposing children to illegal drugs. There are also obvious dangers associated with leaving children in the care of a parent or custodian who is under the influence of illegal drugs. Here, given the reports of Father’s illegal drug use, his ongoing proximity to people who use illegal drugs, his habit of frequenting a place in which drug paraphernalia was later found, and the fact that the children’s other parent had an ongoing drug problem, we have no trouble concluding that the court’s decision to require Father to submit to drug evaluation and testing was “proportionate to the concern raised by” the findings and was “reasonably calculated to serve the best interest” of the neglected and thus vulnerable minor children who were sometimes in Father’s care. In re S.A., 2016 UT App 191, ¶ 7.

¶48 Again, we cannot overturn the juvenile court’s decision unless “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 (quotation simplified). Because the juvenile court considered all the facts and its decision was not “against the clear weight of the evidence,” id. (quotation simplified), we affirm the court’s disposition order.[5]

 

CONCLUSION

¶49 We have no need to address Father’s challenge to the juvenile court’s abuse determination because, even if Father is correct, the neglect determination independently provided the juvenile court with jurisdiction and the ability to enter disposition orders in the best interest of the children. Moreover, we conclude that the juvenile court’s finding that Father “has issues related to the use of illegal substances” was not clearly erroneous. We further conclude that the juvenile court’s requirement that Father submit to “drug testing, evaluation, and treatment” was reasonable.

¶50 Affirmed.

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In re J.P. – 2021 UT App 134 – termination of parental rights

In re J.P. – 2021 UT App 134

2021 UT App 134

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF J.P. AND T.P., PERSONS UNDER EIGHTEEN YEARS OF AGE.

T.L.,
Appellant,
v.
STATE OF UTAH,
Appellee.

Opinion

No. 20210185-CA

Filed December 9, 2021

Fifth District Juvenile Court, Cedar City Department

The Honorable Troy A. Little

No. 1170183

Colleen K. Coebergh, Attorney for Appellant

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

Martha Pierce, Guardian ad Litem

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES GREGORY K. ORME and JILL M. POHLMAN concurred.

HARRIS, Judge:

¶1        After a two-day evidentiary hearing, the juvenile court terminated T.L.’s (Mother) parental rights regarding her two children, J.P. and T.P. (collectively, the Children). Mother now appeals, asserting that the court erred by concluding that termination of her parental rights was strictly necessary and in the Children’s best interest. We affirm.

BACKGROUND

¶2        While married to her husband (Father), Mother had two children: J.P., a son born in 2013, and T.P., a daughter born in 2016. Mother described J.P. as “difficult to manage because he is autistic,” and stated that he has a history of “aggressive and violent behavior,” which he sometimes expressed toward T.P. Mother’s marriage was “good at first,” but Father eventually became violent and abusive toward both Mother and J.P., and was arrested on one occasion for domestic violence. In 2018, Mother went to live with her parents, taking the Children with her.

¶3        A few months later, J.P. sustained a black eye after Mother’s father (Grandfather) threw a laundry basket at him. Grandfather “has a history of dangerous behavior” and was once arrested and convicted of attempted aggravated assault after discharging a firearm in the presence of the Children during a family dispute. After investigating the laundry basket incident, the Department of Child and Family Services (DCFS) made a supported finding of physical abuse against Grandfather and asked Mother to stop living with her parents; DCFS recommended that she stay at a women’s shelter with the Children, and Mother complied.

¶4        During the stay at the shelter, DCFS again became involved after other residents of the shelter reported that Mother was physically abusing the Children and throwing their meals in the trash as a form of punishment. Following an investigation of these incidents, DCFS made a supported finding of physical abuse against Mother and took the Children into protective custody. The juvenile court later determined that the Children were abused and neglected, and set reunification with Mother as the primary permanency goal.

¶5        The Children were initially placed together with the same foster family. During this time, the foster parents reported that J.P. was “physically aggressive, daily, toward[]” T.P. But in some ways, the Children did better in their new environment: T.P. was “excelling” and J.P. showed improvement after weekly therapy, although he continued to sometimes “act[] out aggressively.”

¶6 During this same time period, Mother worked toward reunification by attending therapy and parenting courses, and by securing employment. In recognition of this progress, some nine months after their removal the Children were returned to Mother’s custody for a trial home placement. But Mother still lived with her family, including Grandfather, and for various reasons the home placement failed; this time, DCFS removed the Children “due to concerns of environmental neglect, ongoing insufficient hygiene . . . , and suspicion of sexual reactiveness.”

¶7        Following the failure of the trial home placement, the State and a guardian ad litem (the GAL) appointed to represent the Children’s interests asked the juvenile court to change the permanency goal from reunification to adoption. The court granted that request and terminated reunification services; shortly thereafter, the State filed a petition to terminate Mother’s parental rights to the Children.[1]

¶8        Meanwhile, J.P. was continuing to act aggressively toward T.P. and others, and DCFS eventually found it necessary to separate the Children, and place them with different foster families, in order to protect T.P. Some time later, Mother expressed “concern” about the separation to the juvenile court, but the court allowed it, crediting the GAL’s account that J.P.’s behavior improved after the Children were separated.

¶9        The case proceeded to trial on the State’s petition to terminate Mother’s parental rights. During trial, the State called eight witnesses in support of its case, including Mother, all the foster parents, certain DCFS caseworkers, and a peer parent advisor. In addition, the GAL addressed the court and proffered certain statements made by the Children. During closing argument, Mother’s attorney did not contest the fact that statutory grounds existed for termination of Mother’s parental rights, and acknowledged that “maybe returning the [Children] to [Mother’s familial] home was not the best idea.” Mother’s attorney also recognized that J.P. had, at times, been violent and aggressive toward T.P., and agreed with the State that “these kids could not be together” in foster care. But Mother’s attorney argued that, nevertheless, termination of Mother’s parental rights was not in the Children’s best interest, which he argued could best be served by returning them, together, to Mother’s care. However, at no point did counsel argue, as an alternative to termination, that the court should grant permanent custody and guardianship to relatives or foster families.

¶10 After trial, the court issued a detailed written ruling terminating Mother’s parental rights. The court found that six statutory grounds for termination existed, including abuse and neglect. And the court concluded that it was in the Children’s best interest for Mother’s parental rights to be terminated.

¶11 As part of its best-interest analysis, the court considered whether termination of Mother’s parental rights was “strictly necessary,” and it assessed whether other feasible options, short of termination, existed that would adequately address the situation, but ultimately concluded that termination was strictly necessary. The court noted that, at trial, it had been presented with only two options: terminating Mother’s parental rights, or returning the Children to Mother’s care. Nonetheless, the court proceeded to consider other potential options; in particular, the court examined at length whether a permanent guardianship with a relative or with a foster family would be appropriate.

With regard to a kinship placement, the court noted that the only known relatives were Mother’s family members, including Grandfather, who all lived in the same household, and the court concluded that, in light of the situation, including Grandfather’s history of violence, such a placement would be inappropriate. And with regard to long-term guardianships with foster families, the court offered its view that such arrangements tend to work well only “where the child has a healthy relationship with both the guardian and the parent” and “the guardian and parent are willing to work together to preserve that parent-child relationship.” In this case, the foster families had “little to no relationship” with Mother. The court also noted that the Children were “very young,” and concluded that “[t]hey both need stability and permanency” that could best be found in an adoption arrangement rather than in a guardianship arrangement. After an extensive analysis, the court determined that neither a kinship placement nor a long-term guardianship with foster families was an appropriate option in this case, and that adoption following termination of parental rights was the option most in keeping with the Children’s best interest. Based on those findings and conclusions, the court terminated Mother’s parental rights.

ISSUE AND STANDARD OF REVIEW

¶12 Mother now appeals from that order, and challenges the juvenile court’s ruling that termination of her parental rights was strictly necessary and in the Children’s best interest. “Whether the juvenile court correctly concluded there was no feasible alternative to terminating Mother’s . . . parental rights is a mixed question of fact and law,” and “we review the juvenile court’s findings of fact for clear error and its conclusions of law for correctness, affording the court some discretion in applying the law to the facts.” See In re G.D., 2021 UT 19, ¶ 37, 491 P.3d 867 (quotation simplified); see also In re J.M., 2020 UT App 52, ¶ 24, 463 P.3d 66 (“We afford a juvenile court’s best-interest decision a high degree of deference, reversing only for clear error, which we find 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 . . . .” (quotation simplified)).

ANALYSIS

¶13 A court may terminate parental rights only after making two necessary findings. In re N.K., 2020 UT App 26, ¶ 21, 461 P.3d 1116. First, the court must find, by clear and convincing evidence, that at least one statutory ground for termination exists. See In re T.E., 2011 UT 51, ¶ 17, 266 P.3d 739; see also Utah Code Ann. § 80-4-301(1) (LexisNexis Supp. 2021). “Second, the court must find that termination of the parent’s rights is in the best interest[] of the child.” In re N.K., 2020 UT App 26, ¶ 21 (quotation simplified); see also Utah Code Ann. § 80-4-104(12) (LexisNexis Supp. 2021).

¶14      The best interest of the child is “of paramount importance in determining whether termination of parental rights shall be ordered.” Utah Code Ann. § 80-4-104(12)(a). Because any number of factors can have bearing on the child, the best-interest inquiry is a broad-ranging, “holistic examination of all the relevant circumstances that might affect a child’s situation.” In re H.F., 2019 UT App 204, ¶ 14, 455 P.3d 1098 (quotation simplified). And this requires evaluating “the unique and specific conditions” experienced by the child, from the child’s perspective. In re J.M., 2020 UT App 52, ¶ 37, 463 P.3d 66. While courts have identified factors relevant to the best-interest determination, the list is non-exhaustive. See id. (“The breadth of this subjective assessment based on the totality of the circumstances surrounding the child has never been diminished . . . .” (quotation simplified)); see also In re H.F., 2019 UT App 204, ¶ 14 (listing possible factors to consider in evaluating a child’s best interest).

¶15 In addition, our legislature has directed that parental rights may be terminated only when that outcome is “strictly necessary” from “the child’s point of view.” See Utah Code Ann. § 80-4-301(1); see also id. § 80-4-104(12)(b). Our supreme court has interpreted this instruction as requiring that termination “be strictly necessary to promote the child’s best interest,” and has held that the “strictly necessary” inquiry is to be conducted “as part of” the best-interest inquiry. In re B.T.B., 2020 UT 60, ¶¶ 60, 76, 472 P.3d 827. Termination is “strictly necessary” only when, after exploring possible placements for the child, the juvenile court concludes that no “other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights.” Id. ¶ 67 (quotation simplified). “If the child can be equally protected and benefited by an option other than termination, termination is not strictly necessary.” Id. ¶ 66.

¶16 In this case, after finding that six different statutory grounds for termination existed and that termination was in the Children’s best interest, the juvenile court terminated Mother’s parental rights. As noted, this case is not about the statutory grounds for termination—Mother did not contest the presence of statutory grounds at trial, and does not appeal the court’s findings in that regard. But Mother does challenge the court’s conclusion that termination of her parental rights was in the Children’s best interest and, in so doing, asks us to consider two issues. First, Mother argues that the court, in evaluating best interest, failed to adequately consider the customary preference for keeping siblings together, and failed to consider the impact that termination would have on the sibling bond.[2] Second, Mother takes issue with the court’s conclusion that terminating her rights was strictly necessary to promote the Children’s best interest; specifically, she contends the court did not adequately address whether permanent guardianship with nonrelatives presented a viable option. We discuss each argument in turn.

¶17 Among the many “factors involved in a best-interest[] determination” is consideration of whether to “keep[] siblings together.” See In re O.C., 2005 UT App 563, ¶ 22, 127 P.3d 1286 (quotation simplified); cf. Utah Code Ann. § 80-3-409(3)(b) (LexisNexis Supp. 2021) (stating that, in making permanency decisions, juvenile courts should “attempt to keep the minor’s sibling group together” where “practicable” and where that outcome is “in accordance with the best interest of the minor”). Mother contends that the court “did not appropriately weigh and consider the negative impact that termination of parental rights of the mother had on the sibling bond.” We disagree.

¶18 In making its best-interest determination, the juvenile court quite clearly evaluated the impact termination would have on the Children’s sibling relationship. In its findings, the court found it “necessary to address” the fact that the Children were “not placed together in the same adoptive home,” and noted at the outset of its analysis the general preference for the “sibling group [to] stay together.” But the court also noted that “this is a particularly unique situation wherein [J.P.] has a history of aggressive and violent behavior toward[] [T.P.],” and would “direct his anger at [T.P.] by hitting, kicking, and biting her.” The court referenced testimony by caseworkers, foster parents, and a mental health evaluator who had each “witnessed [J.P.’s] aggression” toward T.P., and the court referred to J.P.’s aggression as a “safety risk” to T.P. And in particular, the court addressed Mother’s argument that she could do better than the foster parents had done in this regard, offering its view that Mother “seem[ed] unaware of the severity of [J.P.’s] aggression” toward T.P. and that Mother was “minimizing” J.P.’s aggressive behavior. After considering the evidence, the court expressly found that “it is not practicable and it is not in the Children’s best interest to keep” them together.

¶19 In light of these detailed findings and conclusions, it is simply not accurate to suggest that the juvenile court did not consider the “sibling bond” factor as part of its best-interest analysis. The court clearly did consider it. Mother’s complaint, properly viewed, is not that the court did not consider the issue; rather, Mother’s dissatisfaction lies with the weight the court gave her perspective, and with the court’s ultimate conclusion. We have often stated that “it is not within our purview to engage in a reweighing of the evidence” heard by a court following a trial, even in cases in which “the evidence could also have supported” an alternative outcome. See Shuman v. Shuman, 2017 UT App 192, ¶¶ 9–10, 406 P.3d 258 (quotation simplified). Where a juvenile court has analyzed an issue following an evidentiary hearing, and has made factual findings and legal conclusions that are supported by the evidence and the law, we will not overturn those findings and conclusions, even if a different judge might have weighed the evidence in a different way. See In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435 (stating that, when a “foundation for” a juvenile court’s “decision exists in the evidence, an appellate court may not engage in a reweighing of the evidence”); see also In re J.E.G., 2020 UT App 94, ¶ 24, 468 P.3d 1048 (“Given the factfinder’s advantaged position in observing the witnesses firsthand, it is the factfinder’s responsibility, not the appellate court’s, to weigh [the] evidence and make a determination of fact.” (quotation simplified)). Here, the court’s analysis regarding the importance of the Children’s sibling bond was supported by the evidence presented at trial, and we will not engage in a reweighing of that evidence on appeal. On that basis, we reject Mother’s argument that the juvenile court, in evaluating best interest, failed to adequately consider and weigh the “sibling bond” factor.

¶20      Next, Mother asserts that the juvenile court, as part of its “strictly necessary” assessment, “did not appropriately consider permanent custody and guardianship” of the Children with nonrelatives. We reject this argument for similar reasons: the court did in fact consider this issue, and Mother’s disagreement with the court’s conclusion is not grounds for reversal.

¶21      In this case, the juvenile court devoted eight paragraphs of its analysis to this issue, despite the fact that Mother, at trial, did not specifically ask the court to assess permanent guardianship options with nonrelatives.[3] The court noted, at the outset of its analysis, that the “only options presented at trial from the parties were to terminate Mother’s parental rights or return the Children” to Mother. But despite the fact that the parties did not advance other alternatives, the court explored them anyway. In particular, the court noted that, “another option, short of termination,” was to place the Children in a permanent guardianship with a relative. In this regard, the court noted that “DCFS made diligent efforts to locate possible” kinship placements, but did so “without success,” because “the only known kin” were Mother’s relatives, including Grandfather, who all lived together in the same household, a placement that had already proved itself inappropriate. Accordingly, the court concluded that a permanent guardianship with a relative “is not an option in this case.”

¶22 The court then proceeded to assess whether a long-term guardianship with a nonrelative was a viable option. The court noted that “the obvious choice” for such a placement “would be a possible guardianship placement with the current” foster families. But the court offered its view that long-term guardianship arrangements are “typically only in a child’s best interest where the guardians and the parent have a working, relatively healthy relationship” in which they are both “willing to work together to preserve [the] parent-child relationship,” and “where the child has a healthy relationship with both the guardian and the parent.” The court also opined that long-term guardianships work best with older children who have “the developmental maturity to recognize the guardian in their role and the parent in their role,” and “can distinguish between the two.” The court found that none of these conditions were present here: the foster families had “little to no relationship whatsoever with Mother,” and the Children were “still very young” and needed “stability and permanency” and “a family they can call their own without further changes.” Accordingly, the court concluded that a long-term guardianship with a nonrelative did “not promote [the Children’s] best interest or welfare,” and that “[h]aving a permanent family unit [would] meet their best interest far better than a guardianship.”

¶23      In light of the thorough treatment the juvenile court gave the issue, Mother’s complaint that the court “did not appropriately consider” permanent guardianship options is unavailing. In this context as well, Mother is simply dissatisfied with the manner in which the juvenile court weighed the evidence and, as noted, this complaint has no traction on appeal. See In re B.R., 2007 UT 82, ¶ 12; cf. State v. Littlejohn, 2021 UT App 73, ¶ 28, 496 P.3d 726 (stating that, where “it is apparent . . . that [the court] did consider the information” the appellant claimed it did not consider, the appellant’s complaint was merely “that the court failed to give that information the weight [the appellant] believes it should have been given,” and concluding that this “argument simply has no traction on appeal”). On this basis, we reject Mother’s argument that the court failed to adequately consider potential long-term guardianship options with nonrelatives.

CONCLUSION

¶24 The juvenile court appropriately considered whether to keep the Children together, and whether long-term guardianship options existed short of termination. For the reasons stated, we reject Mother’s challenges to the juvenile court’s best-interest determination, and affirm the court’s order of termination.

——————————————————

[1] The State’s petition also asked the court to terminate Father’s parental rights, which the court eventually did. Father’s parental rights are not at issue in this appeal.

[2] The State asserts that Mother did not properly preserve this argument for appellate review. The State’s contention is not particularly persuasive. Indeed, at trial, although acknowledging that the Children needed to be separated if they remained in foster care, Mother’s attorney argued that the Children could be kept together if they were returned to Mother’s care, and advanced this as a reason not to terminate. But we need not discuss preservation further here because, in this case, the issue “can easily be resolved in favor of the party asserting that the claim was not preserved,” and therefore we elect to simply address the claim on its merits. See State v. Kitches, 2021 UT App 24, ¶ 28, 484 P.3d 415.

[3] For this reason, the State argues that Mother did not preserve this issue for our review. We acknowledge the State’s point that a litigant, if it wants a court to afford specific relief, should ask for that relief directly. But as the State acknowledges, “Utah law places an affirmative onus” on juvenile courts to “consider reasonable alternatives to termination.” (Citing In re B.T.B., 2020 UT 60, ¶ 74, 472 P.3d 827.) In this situation, juvenile courts have an independent obligation, imposed by statute, to assess whether termination is strictly necessary. See In re B.T.B., 2020 UT 60, ¶ 74 (explaining that the juvenile court is “require[d] . . . to find, on the record, that no other option can achieve the same welfare and best interest for the child”); see also Utah Code Ann. § 80-4-301(1) (LexisNexis Supp. 2021). While the court’s assessment in this regard is of course guided by the parties’ arguments and specific requests for relief, a juvenile court must always make a finding, prior to terminating a parent’s rights, that termination is strictly necessary to promote the child’s best interest. In this case, we commend the juvenile court for its thorough analysis of the issue, even in the absence of any specific request by Mother for imposition of a long-term guardianship with nonrelatives.

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In re J.P. – 2021 UT App 134 – termination of parental rights

2021 UT App 134 

THE UTAH COURT OF APPEALS 

STATE OF UTAH, IN THE INTEREST OF J.P. AND T.P., PERSONS UNDER EIGHTEEN YEARS OF AGE. 

T.L.,
Appellant,
v.
STATE OF UTAH,
Appellee. 

Opinion 

No. 20210185-CA 

Filed December 9, 2021 

Fifth District Juvenile Court, Cedar City Department 

The Honorable Troy A. Little 

No. 1170183 

Colleen K. Coebergh, Attorney for Appellant 

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

Martha Pierce, Guardian ad Litem 

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES GREGORY K. ORME and JILL M. POHLMAN concurred. 

HARRIS, Judge: 

¶1 After a two-day evidentiary hearing, the juvenile court terminated T.L.’s (Mother) parental rights regarding her two children, J.P. and T.P. (collectively, the Children). Mother now appeals, asserting that the court erred by concluding that termination of her parental rights was strictly necessary and in the Children’s best interest. We affirm. 

BACKGROUND 

¶2 While married to her husband (Father), Mother had two children: J.P., a son born in 2013, and T.P., a daughter born in 2016. Mother described J.P. as “difficult to manage because he is autistic,” and stated that he has a history of “aggressive and violent behavior,” which he sometimes expressed toward T.P. Mother’s marriage was “good at first,” but Father eventually became violent and abusive toward both Mother and J.P., and was arrested on one occasion for domestic violence. In 2018, Mother went to live with her parents, taking the Children with her. 

¶3 A few months later, J.P. sustained a black eye after Mother’s father (Grandfather) threw a laundry basket at him. Grandfather “has a history of dangerous behavior” and was once arrested and convicted of attempted aggravated assault after discharging a firearm in the presence of the Children during a family dispute. After investigating the laundry basket incident, the Department of Child and Family Services (DCFS) made a supported finding of physical abuse against Grandfather and asked Mother to stop living with her parents; DCFS recommended that she stay at a women’s shelter with the Children, and Mother complied. 

¶4 During the stay at the shelter, DCFS again became involved after other residents of the shelter reported that Mother was physically abusing the Children and throwing their meals in the trash as a form of punishment. Following an investigation of these incidents, DCFS made a supported finding of physical abuse against Mother and took the Children into protective custody. The juvenile court later determined that the Children were abused and neglected, and set reunification with Mother as the primary permanency goal. 

¶5 The Children were initially placed together with the same foster family. During this time, the foster parents reported that J.P. was “physically aggressive, daily, toward[]” T.P. But in some ways, the Children did better in their new environment: T.P. was “excelling” and J.P. showed improvement after weekly therapy, although he continued to sometimes “act[] out aggressively.” 

¶6 During this same time period, Mother worked toward reunification by attending therapy and parenting courses, and by securing employment. In recognition of this progress, some nine months after their removal the Children were returned to Mother’s custody for a trial home placement. But Mother still lived with her family, including Grandfather, and for various reasons the home placement failed; this time, DCFS removed the Children “due to concerns of environmental neglect, ongoing insufficient hygiene . . . , and suspicion of sexual reactiveness.” 

¶7 Following the failure of the trial home placement, the State and a guardian ad litem (the GAL) appointed to represent the Children’s interests asked the juvenile court to change the permanency goal from reunification to adoption. The court granted that request and terminated reunification services; shortly thereafter, the State filed a petition to terminate Mother’s parental rights to the Children.1  

¶8 Meanwhile, J.P. was continuing to act aggressively toward T.P. and others, and DCFS eventually found it necessary to separate the Children, and place them with different foster families, in order to protect T.P. Some time later, Mother expressed “concern” about the separation to the juvenile court, but the court allowed it, crediting the GAL’s account that J.P.’s behavior improved after the Children were separated. 

¶9 The case proceeded to trial on the State’s petition to terminate Mother’s parental rights. During trial, the State called eight witnesses in support of its case, including Mother, all the foster parents, certain DCFS caseworkers, and a peer parent advisor. In addition, the GAL addressed the court and proffered certain statements made by the Children. During closing argument, Mother’s attorney did not contest the fact that statutory grounds existed for termination of Mother’s parental rights, and acknowledged that “maybe returning the [Children] to [Mother’s familial] home was not the best idea.” Mother’s attorney also recognized that J.P. had, at times, been violent and aggressive toward T.P., and agreed with the State that “these kids could not be together” in foster care. But Mother’s attorney argued that, nevertheless, termination of Mother’s parental rights was not in the Children’s best interest, which he argued could best be served by returning them, together, to Mother’s care. However, at no point did counsel argue, as an alternative to termination, that the court should grant permanent custody and guardianship to relatives or foster families. 

¶10 After trial, the court issued a detailed written ruling terminating Mother’s parental rights. The court found that six statutory grounds for termination existed, including abuse and neglect. And the court concluded that it was in the Children’s best interest for Mother’s parental rights to be terminated. 

¶11 As part of its best-interest analysis, the court considered whether termination of Mother’s parental rights was “strictly necessary,” and it assessed whether other feasible options, short of termination, existed that would adequately address the situation, but ultimately concluded that termination was strictly necessary. The court noted that, at trial, it had been presented with only two options: terminating Mother’s parental rights, or returning the Children to Mother’s care. Nonetheless, the court proceeded to consider other potential options; in particular, the court examined at length whether a permanent guardianship with a relative or with a foster family would be appropriate. 

With regard to a kinship placement, the court noted that the only known relatives were Mother’s family members, including Grandfather, who all lived in the same household, and the court concluded that, in light of the situation, including Grandfather’s history of violence, such a placement would be inappropriate. And with regard to long-term guardianships with foster families, the court offered its view that such arrangements tend to work well only “where the child has a healthy relationship with both the guardian and the parent” and “the guardian and parent are willing to work together to preserve that parent-child relationship.” In this case, the foster families had “little to no relationship” with Mother. The court also noted that the Children were “very young,” and concluded that “[t]hey both need stability and permanency” that could best be found in an adoption arrangement rather than in a guardianship arrangement. After an extensive analysis, the court determined that neither a kinship placement nor a long-term guardianship with foster families was an appropriate option in this case, and that adoption following termination of parental rights was the option most in keeping with the Children’s best interest. Based on those findings and conclusions, the court terminated Mother’s parental rights. 

ISSUE AND STANDARD OF REVIEW 

¶12 Mother now appeals from that order, and challenges the juvenile court’s ruling that termination of her parental rights was strictly necessary and in the Children’s best interest. “Whether the juvenile court correctly concluded there was no feasible alternative to terminating Mother’s . . . parental rights is a mixed question of fact and law,” and “we review the juvenile court’s findings of fact for clear error and its conclusions of law for correctness, affording the court some discretion in applying the law to the facts.” See In re G.D., 2021 UT 19, ¶ 37, 491 P.3d 867 (quotation simplified); see also In re J.M., 2020 UT App 52, ¶ 24, 463 P.3d 66 (“We afford a juvenile court’s best-interest decision a high degree of deference, reversing only for clear error, which we find 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 . . . .” (quotation simplified)). 

ANALYSIS 

¶13 A court may terminate parental rights only after making two necessary findings. In re N.K., 2020 UT App 26, ¶ 21, 461 P.3d 1116. First, the court must find, by clear and convincing evidence, that at least one statutory ground for termination exists. See In re T.E., 2011 UT 51, ¶ 17, 266 P.3d 739; see also Utah Code Ann. § 80-4-301(1) (LexisNexis Supp. 2021). “Second, the court must find that termination of the parent’s rights is in the best interest[] of the child.” In re N.K., 2020 UT App 26, ¶ 21 (quotation simplified); see also Utah Code Ann. § 80-4-104(12) (LexisNexis Supp. 2021). 

¶14 The best interest of the child is “of paramount importance in determining whether termination of parental rights shall be ordered.” Utah Code Ann. § 80-4-104(12)(a). Because any number of factors can have bearing on the child, the best-interest inquiry is a broad-ranging, “holistic examination of all the relevant circumstances that might affect a child’s situation.” In re H.F., 2019 UT App 204, ¶ 14, 455 P.3d 1098 (quotation simplified). And this requires evaluating “the unique and specific conditions” experienced by the child, from the child’s perspective. In re J.M., 2020 UT App 52, ¶ 37, 463 P.3d 66. While courts have identified factors relevant to the best-interest determination, the list is non-exhaustive. See id. (“The breadth of this subjective assessment based on the totality of the circumstances surrounding the child has never been diminished . . . .” (quotation simplified)); see also In re H.F., 2019 UT App 204, ¶ 14 (listing possible factors to consider in evaluating a child’s best interest). 

¶15 In addition, our legislature has directed that parental rights may be terminated only when that outcome is “strictly necessary” from “the child’s point of view.” See Utah Code Ann. § 80-4-301(1); see also id. § 80-4-104(12)(b). Our supreme court has interpreted this instruction as requiring that termination “be strictly necessary to promote the child’s best interest,” and has held that the “strictly necessary” inquiry is to be conducted “as part of” the best-interest inquiry. In re B.T.B., 2020 UT 60, ¶¶ 60, 76, 472 P.3d 827. Termination is “strictly necessary” only when, after exploring possible placements for the child, the juvenile court concludes that no “other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights.” Id. ¶ 67 (quotation simplified). “If the child can be equally protected and benefited by an option other than termination, termination is not strictly necessary.” Id. ¶ 66. 

¶16 In this case, after finding that six different statutory grounds for termination existed and that termination was in the Children’s best interest, the juvenile court terminated Mother’s parental rights. As noted, this case is not about the statutory grounds for termination—Mother did not contest the presence of statutory grounds at trial, and does not appeal the court’s findings in that regard. But Mother does challenge the court’s conclusion that termination of her parental rights was in the Children’s best interest and, in so doing, asks us to consider two issues. First, Mother argues that the court, in evaluating best interest, failed to adequately consider the customary preference for keeping siblings together, and failed to consider the impact that termination would have on the sibling bond.2 Second, Mother takes issue with the court’s conclusion that terminating her rights was strictly necessary to promote the Children’s best interest; specifically, she contends the court did not adequately address whether permanent guardianship with nonrelatives presented a viable option. We discuss each argument in turn. 

¶17 Among the many “factors involved in a best-interest[] determination” is consideration of whether to “keep[] siblings together.” See In re O.C., 2005 UT App 563, ¶ 22, 127 P.3d 1286 (quotation simplified); cf. Utah Code Ann. § 80-3-409(3)(b) (LexisNexis Supp. 2021) (stating that, in making permanency decisions, juvenile courts should “attempt to keep the minor’s sibling group together” where “practicable” and where that outcome is “in accordance with the best interest of the minor”). Mother contends that the court “did not appropriately weigh and consider the negative impact that termination of parental rights of the mother had on the sibling bond.” We disagree. 

¶18 In making its best-interest determination, the juvenile court quite clearly evaluated the impact termination would have on the Children’s sibling relationship. In its findings, the court found it “necessary to address” the fact that the Children were “not placed together in the same adoptive home,” and noted at the outset of its analysis the general preference for the “sibling group [to] stay together.” But the court also noted that “this is a particularly unique situation wherein [J.P.] has a history of aggressive and violent behavior toward[] [T.P.],” and would “direct his anger at [T.P.] by hitting, kicking, and biting her.” The court referenced testimony by caseworkers, foster parents, and a mental health evaluator who had each “witnessed [J.P.’s] aggression” toward T.P., and the court referred to J.P.’s aggression as a “safety risk” to T.P. And in particular, the court addressed Mother’s argument that she could do better than the foster parents had done in this regard, offering its view that Mother “seem[ed] unaware of the severity of [J.P.’s] aggression” toward T.P. and that Mother was “minimizing” J.P.’s aggressive behavior. After considering the evidence, the court expressly found that “it is not practicable and it is not in the Children’s best interest to keep” them together. 

¶19 In light of these detailed findings and conclusions, it is simply not accurate to suggest that the juvenile court did not consider the “sibling bond” factor as part of its best-interest analysis. The court clearly did consider it. Mother’s complaint, properly viewed, is not that the court did not consider the issue; rather, Mother’s dissatisfaction lies with the weight the court gave her perspective, and with the court’s ultimate conclusion. We have often stated that “it is not within our purview to engage in a reweighing of the evidence” heard by a court following a trial, even in cases in which “the evidence could also have supported” an alternative outcome. See Shuman v. Shuman, 2017 UT App 192, ¶¶ 9–10, 406 P.3d 258 (quotation simplified). Where a juvenile court has analyzed an issue following an evidentiary hearing, and has made factual findings and legal conclusions that are supported by the evidence and the law, we will not overturn those findings and conclusions, even if a different judge might have weighed the evidence in a different way. See In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435 (stating that, when a “foundation for” a juvenile court’s “decision exists in the evidence, an appellate court may not engage in a reweighing of the evidence”); see also In re J.E.G., 2020 UT App 94, ¶ 24, 468 P.3d 1048 (“Given the factfinder’s advantaged position in observing the witnesses firsthand, it is the factfinder’s responsibility, not the appellate court’s, to weigh [the] evidence and make a determination of fact.” (quotation simplified)). Here, the court’s analysis regarding the importance of the Children’s sibling bond was supported by the evidence presented at trial, and we will not engage in a reweighing of that evidence on appeal. On that basis, we reject Mother’s argument that the juvenile court, in evaluating best interest, failed to adequately consider and weigh the “sibling bond” factor. 

¶20 Next, Mother asserts that the juvenile court, as part of its “strictly necessary” assessment, “did not appropriately consider permanent custody and guardianship” of the Children with nonrelatives. We reject this argument for similar reasons: the court did in fact consider this issue, and Mother’s disagreement with the court’s conclusion is not grounds for reversal. 

¶21 In this case, the juvenile court devoted eight paragraphs of its analysis to this issue, despite the fact that Mother, at trial, did not specifically ask the court to assess permanent guardianship options with nonrelatives.3 The court noted, at the outset of its analysis, that the “only options presented at trial from the parties were to terminate Mother’s parental rights or return the Children” to Mother. But despite the fact that the parties did not advance other alternatives, the court explored them anyway. In particular, the court noted that, “another option, short of termination,” was to place the Children in a permanent guardianship with a relative. In this regard, the court noted that “DCFS made diligent efforts to locate possible” kinship placements, but did so “without success,” because “the only known kin” were Mother’s relatives, including Grandfather, who all lived together in the same household, a placement that had already proved itself inappropriate. Accordingly, the court concluded that a permanent guardianship with a relative “is not an option in this case.” 

¶22 The court then proceeded to assess whether a long-term guardianship with a nonrelative was a viable option. The court noted that “the obvious choice” for such a placement “would be a possible guardianship placement with the current” foster families. But the court offered its view that long-term guardianship arrangements are “typically only in a child’s best interest where the guardians and the parent have a working, relatively healthy relationship” in which they are both “willing to work together to preserve [the] parent-child relationship,” and “where the child has a healthy relationship with both the guardian and the parent.” The court also opined that long-term guardianships work best with older children who have “the developmental maturity to recognize the guardian in their role and the parent in their role,” and “can distinguish between the two.” The court found that none of these conditions were present here: the foster families had “little to no relationship whatsoever with Mother,” and the Children were “still very young” and needed “stability and permanency” and “a family they can call their own without further changes.” Accordingly, the court concluded that a long-term guardianship with a nonrelative did “not promote [the Children’s] best interest or welfare,” and that “[h]aving a permanent family unit [would] meet their best interest far better than a guardianship.” 

¶23 In light of the thorough treatment the juvenile court gave the issue, Mother’s complaint that the court “did not appropriately consider” permanent guardianship options is unavailing. In this context as well, Mother is simply dissatisfied with the manner in which the juvenile court weighed the evidence and, as noted, this complaint has no traction on appeal. See In re B.R., 2007 UT 82, ¶ 12; cf. State v. Littlejohn, 2021 UT App 73, ¶ 28, 496 P.3d 726 (stating that, where “it is apparent . . . that [the court] did consider the information” the appellant claimed it did not consider, the appellant’s complaint was merely “that the court failed to give that information the weight [the appellant] believes it should have been given,” and concluding that this “argument simply has no traction on appeal”). On this basis, we reject Mother’s argument that the court failed to adequately consider potential long-term guardianship options with nonrelatives. 

CONCLUSION 

¶24 The juvenile court appropriately considered whether to keep the Children together, and whether long-term guardianship options existed short of termination. For the reasons stated, we reject Mother’s challenges to the juvenile court’s best-interest determination, and affirm the court’s order of termination. 

 

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