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.
[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).
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 evidence. Id. § 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.
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.
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.
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.
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.
“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.
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.
[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.
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.
¶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 severeneglect,” 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.
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.
[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.
Wendy M. Brown, Debra M. Nelson, and Benjamin Miller, Attorneys for Appellant
Blair T. Wardle, Attorney for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN D. TENNEY concurred.
MORTENSEN, Judge:
¶1 Elizabeth Lydia Meyer’s[1] ex-husband (Father) discovered bruising on their daughter (Child) after picking her up from Meyer’s home. The State charged Meyer with child abuse and, at a bench trial, used a process-of-elimination approach to argue that Meyer was the only possible cause of the bruising. The district court convicted Meyer, and she now appeals. Meyer asserts that the court erred in admitting the preliminary hearing testimony of her now-husband. We agree that this action was erroneous and prejudiced Meyer, so we vacate her conviction.
BACKGROUND
¶2 One Wednesday in July 2018, Father picked up Child, then two years old, from Meyer’s home for a regular midweek visit. Meyer and Father had been through a “fairly contentious” divorce, and their relationship was sometimes “volatile,” so Father had made it a habit to record via cellphone his pickups of Child. His video recording from this day shows marks on the upper portions of both of Child’s arms. But Father did not notice the marks until later, when he was at a restaurant with Child. Father exchanged texts with Meyer about the marks:
Father: I noticed that [Child] has what looks like bruises on her arm. Is she okay?
Meyer: Yes, she’s fine.
Father: How did she get those marks?
Meyer: How do children get the majority of their bruises? What direction are you trying to go with this?
Father: I’m just concerned because the bruising pattern is not consistent with normal childhood injuries.
Meyer: Since when did you become an expert in that matter? I understand that you want to pretend to care about my daughter, but I do not wish to have you go on a third witch hunt and falsely accuse someone like you already have done twice, even though we both know you’re dying to. You do not make any of her medical appointments. And the last I knew you have not completed any courses in the direction. So please leave your harassing comments to yourself.
¶3 After dinner, Father drove to the police station and asked for an officer to examine Child’s arms. An officer (Officer) and a caseworker (Caseworker) from the Division of Child and Family Services (DCFS) met with Father and photographed Child’s arms approximately two hours after Father had picked up Child.
¶4 Officer and Caseworker then visited Meyer’s home. Outside, they met Michael Glenn, Meyer’s then-boyfriend whom she married before the case went to trial. Glenn was initially “defiant” and did not want them to enter the house, but when they showed him photos of Child’s bruises, he was concerned and let them in.
¶5 Officer and Caseworker entered the house and spoke with Meyer, who was very upset. Officer asked Meyer what could have caused bruising on Child’s arms, and Meyer gave multiple possible explanations, including Child falling out of the car when she arrived home from daycare, Child playing with hair ties that were like rubber bands (which she snapped on her arms), or Child playing roughly with her older brother and sometimes getting rug burns from the roughhousing. Caseworker asked Meyer how she had picked Child up when Child fell out of the car after returning from daycare, and Meyer responded along the lines that she picked Child up like any mother would and cleaned her face. Meyer also reported that she had caused a mark on Child’s upper arm when Child ran into the street and Meyer pulled her back. Caseworker showed Meyer photos of Child’s bruises, and Meyer was very surprised, saying, “They were not like that.”
¶6 Glenn gave Officer contact information for Child’s daycare provider (Daycare Provider). When Officer spoke to Daycare Provider on the phone, she confirmed that Child had been in her care that day. Daycare Provider also confirmed that she had asked Meyer about a mark on Child’s arm when Meyer picked Child up that day and that Meyer told her she had grabbed Child to prevent her from running into the street.
¶7 The next day, Father took Child for a physical exam, which was completed by a forensic nurse examiner (Nurse). In her report, Nurse identified “[p]ositive physical findings of injury to bilateral upper arms and left forearm” and described the upper arm injuries as “circumferential and linear with equal spacing between” them and stated that the bruises were “highly indicative for a squeezing mechanism and physical abuse.” Child was not returned to Meyer’s care.
¶8 The case was transferred to a detective (Detective), who called Meyer two days after the alleged incident and recorded the phone call. During the call, Meyer implied that Father was the source of Child’s bruises because, according to her, Child had no bruises until she was in Father’s care and Meyer believed that “[h]e [was] trying to get [her] daughter away from [her].” Meyer was very upset during the call and indicated that she had been previously accused of child abuse, presumably by Father. Meyer also stated that she did not see any bruises or marks on Child— other than the mark from the incident she reported of grabbing Child to stop her from running into the road—before giving Child to Father. But she explained that Child would sometimes scratch herself, leaving marks, and hit and bite things. Meyer also spoke about Glenn’s whereabouts on the day of the incident, indicating that Glenn was asleep when Child came home and remained asleep until after Father had picked Child up.
¶9 Detective wrote in his police report that Child’s older brother, then four years old, “was asked where his sister got the marks on her arm and he said that it was from someone who had power and squeezed hard.” Detective spoke to Daycare Provider, though he did not inspect her home; perform a background check on her; or speak with the parents of other children she babysat or with the three children she had living with her, who were ages fourteen, ten, and eight and may have had access to Child. Detective later testified that he didn’t really consider Daycare Provider a suspect after speaking with her. He also ruled out Glenn as a suspect based on Meyer’s statement that Glenn had been asleep between the time Child came home from daycare and the time Father picked up Child. However, in his report he wrote that he told Meyer he didn’t think the incident causing the bruising had happened on that day. But at trial he testified that, based on his investigation, the timeline he established was that there were no visible bruises—other than the one caused by Meyer stopping Child from running into the street—until the time between Meyer picking Child up from daycare and Father picking her up from Meyer within the next forty-five minutes.
¶10 In August 2018, another officer (Sergeant) interviewed Meyer in person at Detective’s request. Meyer’s statements were consistent with those she had made previously. Specifically, Meyer again stated that Glenn was asleep when Child returned from daycare and did not wake up until after Child left with Father.
¶11 In December 2018, the State charged Meyer with one count of child abuse, a class A misdemeanor.
¶12 The district court held a preliminary hearing in May 2019. Among other witnesses, the State subpoenaed Glenn to testify at the hearing. When he was called to testify, he was hostile, and the court threatened to hold him in contempt and take him into custody. But Glenn ultimately did testify. While he first declared that it was “100 percent incorrect” that he told Officer and Caseworker that the marks had not been on Child in the morning, after reviewing Officer’s bodycam footage, he admitted that he did say that. He also testified that after waking up that morning, he went straight to the car and didn’t notice any marks on Child’s arms, but he said he was busy “concentrating on driving and getting to and from.” He described how he went with Meyer to drop Child off at daycare in the morning. He testified that he was asleep when Meyer brought Child home. And he declared that he did not cause Child’s bruising.
¶13 Sometime after the preliminary hearing, Meyer married Glenn, and Meyer’s defense counsel (Defense Counsel) informed the State via email that Glenn intended to invoke his spousal privilege related to testifying at trial. The State told Defense Counsel that Glenn was “still required to show up to court to produce evidence that he [was], in fact, married . . . and take the stand to actually invoke the privilege.” The prosecutor insisted, “This is important because then he will become an unavailable witness. As an unavailable witness, I will then be able to play his preliminary hearing audio in lieu of his testimony.” Defense Counsel indicated that she “had anticipated that [the State] would be able to get Glenn’s preliminary hearing testimony in at trial.”
¶14 When Defense Counsel later informed the State that Glenn would be on bed rest following surgery on the date of trial (which had been continued multiple times), they discussed the possibilities of Glenn testifying via video during trial or of filing stipulated facts related to his testimony. But Glenn filed a motion to quash the subpoena against him. The State then sent Defense Counsel a transcript and redacted audio file of Glenn’s preliminary hearing testimony that it intended to have admitted at trial, and Defense Counsel responded, “I would absolutely object to both the transcript and the audio coming in at trial. . . . Glenn’s testimony is hearsay[,] and to introduce it would also be a violation of my client’s confrontation rights.” Defense Counsel explained, “The Utah Supreme Court has ruled that because there is a different motive for examining witnesses at a preliminary hearing than that at a trial, said testimony is inadmissible.”
¶15 The State then filed a motion to admit Glenn’s preliminary hearing testimony. After receiving briefing and hearing oral argument, the court found that Glenn’s testimony fell under the exception to hearsay in rule 804(b)(1) of the Utah Rules of Evidence for former testimony of an unavailable witness. The court acknowledged caselaw indicating that defendants are restricted in developing testimony at preliminary hearings, see State v. Goins, 2017 UT 61, ¶¶ 32–33, 423 P.3d 1236, but it distinguished that caselaw from the facts of this case and admitted the testimony.
¶16 The court held a bench trial in May 2021. In its opening statement, the State indicated that “through the process of elimination,” it would “show beyond a reasonable doubt that it was . . . Meyer who committed child abuse.”
¶17 In addition to Glenn’s testimony, Daycare Provider testified at trial that Child had been in her care from roughly 9:00 a.m. to 4:45 p.m. that day. She stated that she did not see any marks or injuries on Child when Child was dropped off and she never saw marks like those photographed, but she did notice a different mark on Child’s arm later in the day, and this was the mark she asked Meyer about. She also testified that on the day of the bruising, she did not take Child to the park, she did not know of any equipment Child could have accessed that would have caused the injuries, Child did not get injured playing with toys, Child did not receive any injuries while in her care, and Child did not cry or appear to be in pain while in her care. She admitted, though, that she was aware that Child had been “kicked out of her previous day care . . . for playing too rough” and that Child “play[ed] really rough with toys and hit[] dolls a lot.”
¶18 Nurse testified that after examining Child, she “speculated . . . that because of the spacing, and the shape, and the location of the injuries, the colors that [she] saw, they were most definitely bruises,” the spacing of which “could fit a hand.” She said, “I’m not telling you it’s fitting a hand because—you know, I can’t say it was a hand unless I watched it happen, but I can tell you that those are bruises that are in a linear form that you don’t just get from falling down.” She further testified that based on the location, direction, and shape of the bruising, she did not believe that the incidents Meyer had described as possible accidental sources of injury had caused Child’s bruises. She also testified that the marks were “fresher bruises” that, based on coloration, could have been caused within hours of when Officer and Caseworker photographed Child’s injuries. But she acknowledged that “there’s no scientific way to date a bruise” and said that while it was “likely that it occurred” that day, “literally there is no way to determine when it happened.”
¶19 The State played a clip from the recorded interview between Meyer and Sergeant, in which Meyer stated that Child had a temper tantrum after arriving home from daycare and that Child tried to get out of being held and Meyer needed to grab her arm from the side.
¶20 In its closing argument, the State asked, “[W]ho caused the abuse?” and answered that “this is where we get into the process of elimination.” The State then explained its theory that the evidence proved that no one else could have caused the bruising, including Glenn, who “slept through the whole thing.”
¶21 The court ultimately found Meyer “guilty of a lesser-included offense of [c]lass B misdemeanor, child abuse, for having inflicted this injury on [Child] in a reckless manner.” The court provided its rationale, explaining in part that it “found highly credible the testimony” of Nurse that the “bruising was consistent with the types of bruising she has seen in her child abuse conferences and trainings.” The court ruled out Glenn as a potential source of the injuries by saying, “You know, . . . Glenn is asleep by the time [Child] gets home and doesn’t really interact at all. And then we know for a fact that the injuries took place . . . definitively prior to when [Father] arrive[d] based off of the video.” The court concluded, “And so there’s just no doubt in the [c]ourt’s mind that Mom, you lost your cool, you crossed a line, you squeezed your daughter’s arms, and it left that injury. It couldn’t have been anyone else.” The court sentenced Meyer to 180 days of jail but suspended 179 days. It also ordered a fine and probation.
¶22 Meyer subsequently filed a motion for a new trial through Defense Counsel. Defense Counsel then withdrew from representing Meyer. Meyer appeared pro se and asked the court to appoint counsel, but the State objected, and the court decided that Meyer did not qualify for appointed counsel based on her income. The court ultimately denied Meyer’s motion for a new trial. Meyer now appeals.
ISSUE AND STANDARD OF REVIEW
¶23 Meyer argues on appeal that Glenn’s “preliminary hearing testimony should not have been admitted at trial” under an exception to the bar on hearsay.2 “When reviewing rulings on hearsay, [appellate courts] review legal questions regarding admissibility for correctness, questions of fact for clear error, and the final ruling on admissibility for abuse of discretion.” State v. Leech, 2020 UT App 116, ¶ 31, 473 P.3d 218 (cleaned up), cert. denied, 481 P.3d 1039 (Utah 2021). But even “if we determine that the hearsay testimony should not have been admitted, we will reverse only if a reasonable likelihood exists that absent the error,
Meyer also argues that the district court “committed plain error by failing to obtain a valid waiver of counsel before having [Meyer] represent herself on her motion for a new trial.” Because we rule in her favor on the first issue, we need not address this argument.
the result would have been more favorable to the defendant.” Id. (cleaned up).
ANALYSIS
Similar Motive and Opportunity
¶24 Meyer argues that the district court erred in admitting Glenn’s preliminary hearing testimony. She asserts that Glenn’s testimony fails to qualify for the rule 804 exception to the evidentiary bar on hearsay. This exception applies when “the declarant is unavailable” and the declarant’s testimony was “given . . . at a trial, hearing, or lawful deposition” and is now “offered against a party who had . . . an opportunity and similar motive to develop it by direct, cross-, or redirect examination.” Utah R. Evid. 804(b)(1). Meyer argues that caselaw on this point “compels the conclusion that the admission of Glenn’s preliminary hearing testimony was erroneous” because that caselaw indicates that the motive to develop an adverse witness’s testimony at a preliminary hearing differs from the motive to do so at trial.
¶25 In State v. Goins, 2017 UT 61, 423 P.3d 1236, our supreme court discussed the effect of the 1994 amendment to Article I, Section 12 of the Utah Constitution, which limited “the function of preliminary examination to determining whether probable cause exists,” id. ¶ 31 (cleaned up) (discussing Utah Const. art. I, § 12). The court stated that, “by and large,” this provision “places most credibility determinations outside the reach of a magistrate at a preliminary hearing.” Id. ¶ 33. Therefore, “[o]ur constitution specifically limits the purpose of preliminary hearings in a manner that can undercut defense counsel’s opportunity to cross-examine witnesses at a preliminary hearing and thereby modify the interest counsel has in developing testimony on cross-examination.” Id. ¶ 41. But the court “eschewed a blanket rule” of inadmissibility for preliminary hearing testimony because it could “envision scenarios where, for whatever reason, defense counsel possesses the same motive and is provided the same opportunity to cross-examine as she would have at trial.” Id. ¶¶ 36–37. However, the court indicated that “such cases might prove rare.” Id. ¶ 36.
¶26 The Goins court then analyzed the motive for cross-examining a witness at the preliminary hearing by considering the facts of the case, which included the defendant allegedly brandishing a knife and accusing the later-unavailable witness of stealing his phone, after which the witness fled and the defendant assaulted the witness’s acquaintance. Id. ¶¶ 3–6. The court held that it was “apparent on the record . . . that [the defendant’s] counsel did not possess the same motive to develop testimony at the preliminary hearing that she would have had at trial” because the witness’s “testimony referenced concerns with [the defendant] and a prior incident between” the pair, so the defendant’s “counsel had a motive to develop this testimony and question [the witness’s] credibility” at trial “that went beyond a preliminary hearing’s constitutionally limited purpose.” Id. ¶ 46.
¶27 Subsequent cases have reached similar conclusions. In State v. Ellis, 2018 UT 2, 417 P.3d 86, a defendant faced a charge of aggravated robbery for allegedly robbing a cupcake shop at gunpoint, id. ¶¶ 1, 4. The store clerk testified at trial as to the events within the store, id. ¶ 19, but another witness—a witness who saw the perpetrator leave the scene, run across the road, and get into a car whose license plate she then reported—was not able to be in court on the day of the trial, id. ¶¶ 7–8, 16. The court admitted her preliminary hearing testimony, id. ¶ 19, but our supreme court held that this was improper, id. ¶ 40. It stated that in Goins, it had “conditioned the admissibility of preliminary hearing testimony on a showing that defense counsel really did possess the same motive and was permitted a full opportunity for cross-examination at the preliminary hearing.” Id. ¶ 39 (cleaned up). And it said that “Goins foreclose[d] the admissibility of the . . . preliminary hearing testimony” because, “as in Goins, . . . [the court had] no basis to conclude that [the defendant’s] counsel’s preliminary hearing motive to cross-examine was similar to what would have existed at trial.” Id. ¶ 40 (cleaned up).
¶28 Similarly, in State v. Leech, 2020 UT App 116, 473 P.3d 218, cert. denied, 481 P.3d 1039 (Utah 2021), this court applied the holding of Goins where a defendant faced charges related to the alleged kidnapping of two men and murder of one of them, id. ¶¶ 22–24. The court considered the admissibility of preliminary hearing testimony from a man who helped tie up the victims, drove the group to the murder site, supplied the gun, and observed the murder. Id. We noted that “whether the defense had a similar motive to develop prior testimony for purposes of rule 804(b)(1) will often turn on the nature of a witness and her testimony.” Id. ¶ 40 (cleaned up). Where the witness in question “was not only a critical eyewitness, but also an accomplice to each of the crimes,” we determined that “[t]he opportunity to cross-examine this type of witness at a preliminary hearing will likely be a poor substitute for confronting the witness at trial, where the jury can observe [the witness’s] demeanor and assess . . . credibility firsthand.” Id. Accordingly, we held that “the State did not demonstrate that [the defendant] had an adequate opportunity and similar motive to cross-examine [the witness] at the preliminary hearing as he would have had at trial.” Id. ¶ 41.
¶29 The district court believed that the present case was distinguishable from Goins because that case involved an “incident that could have caused motive for [the witness] to fabricate or fashion . . . testimony in such a way that would be damaging to [the defendant].” See Goins, 2017 UT 61, ¶ 46. On the other hand, the court stated, “in the case before the [c]ourt, there’s nothing that has been pointed to specifically that would indicate that there is a similar motive for . . . Glenn to have fabricated any of his testimony.” But the court’s analysis on this point was inadequate, as a witness’s motive for fabrication is not the only circumstance that might impact a defendant’s motive for questioning a witness at a preliminary hearing. This is obvious from Ellis, where the witness had no motive to fabricate testimony and our supreme court still held that it had “no basis to conclude that [the defendant’s] counsel’s preliminary hearing motive to cross-examine was similar to what would have existed at trial.” 2018 UT 2, ¶ 40 (cleaned up).
¶30 The district court erred in concluding that the motives at the preliminary hearing and at trial were the same. The court stated that during the preliminary hearing “there was an opportunity to cross-examine [Glenn] as to whether he was the source of . . . the injuries, whether he abused [Child].” “In fact,” it pointed out, “the State specifically questioned him on that.” It continued, “[The preliminary hearing judge] would have never shut that down and said, ‘No, even though the State had questioned specifically, did you cause the injuries, [d]efense you’re prohibited from going after him to follow up on that question.’ Certainly that would have been permitted by . . . the [j]udge.” But this analysis does not align with our supreme court’s in Goins. The Goins court specifically addressed the reality that a per se rule of admissibility for preliminary hearing testimony of unavailable witnesses “places magistrates in the uncomfortable position of choosing between conducting preliminary hearings in fidelity with article I, section 12 and permitting the type of examinations” that were standard before the constitutional amendment limited the scope of preliminary hearings. 2017 UT 61, ¶ 34. The district court fails to accept that, as the supreme court suggests, Defense Counsel could have reasonably expected the court to limit questioning to that which was necessary for probable cause and prepared to cross-examine Glenn accordingly. See id. We reasoned similarly in Leech, where the defendant’s “counsel admitted that he did not pose a question during his cross-examination of [the witness] that was objected to and sustained, but he maintained that he did not have the same opportunity and motive to cross-examine [the witness] as he would have had at trial because he understood the limited scope of the hearing.” 2020 UT App 116, ¶ 28 (cleaned up). Accordingly, the district court erred in determining that Meyer had the same motive and opportunity to question Glenn in the preliminary hearing as she did at trial because the judge would— presumably—not have prevented follow-up questions to those that were asked.
¶31 Instead, the court should have recognized that the motives changed with respect to questioning witnesses at the preliminary hearing versus at trial. The State was clear that its case was based on a process of elimination. This point is hardly significant at a preliminary hearing, which seeks to determine if there was probable cause—a low standard—for a jury to conclude Meyer caused the bruising. See id. ¶ 20 (reciting the magistrate’s explanation at the defendant’s preliminary hearing that “different standards of proof apply at a probable cause hearing than apply at trial” and that “probable cause means enough evidence that the court is convinced that a reasonable jury could find, not that they necessarily would, but that they could find the offenses charged were committed and that [the defendants] were the individuals who committed them” (cleaned up)). Moreover, at a preliminary hearing, the facts are construed in the light most favorable to the State’s case. See id. (indicating that the magistrate informed the defendant that “one of the most important [differences] is that any doubts or questions about evidence at a preliminary hearing get resolved in favor of the State and against the defendants” and explained that “the benefit of the doubt goes to the State in a preliminary hearing” (cleaned up)). On the other hand, at trial the State must prove a defendant’s guilt beyond a reasonable doubt, see, e.g., id. ¶ 64, and here the State needed to eliminate all other possible suspects beyond a reasonable doubt during trial. So the motive in questioning each witness at the preliminary hearing was to show lack of probable cause that Meyer was the source of Child’s bruises, while the motive at trial was to introduce reasonable doubt as to Meyer causing the bruises by convincing the court that someone else may have done so. In other words, with respect to Glenn, the motive shifted from showing that Glenn was the more likely source of the bruising to showing that Glenn could have caused the bruising such that there was reasonable doubt that Meyer caused it. Therefore, we hold, as did the Goins court, that it was “apparent on the record . . . that [Meyer] did not possess the same motive to develop testimony at the preliminary hearing that she would have had at trial” because at trial Meyer “had a motive to . . . question [Glenn’s] credibility that went beyond a preliminary hearing’s constitutionally limited purpose.” See 2017 UT 61, ¶ 46.
Prejudice
¶32 “A determination of error in admitting [Glenn’s] preliminary hearing testimony is not alone enough to sustain a reversal. We must also find that error prejudicial. Prejudice in this setting requires a showing of a reasonable likelihood that the decision to admit [Glenn’s] preliminary hearing testimony altered the . . . verdict.” See State v. Ellis, 2018 UT 2, ¶ 41, 417 P.3d 86 (cleaned up).
¶33 The relevant caselaw indicates that errors in admitting preliminary hearing testimony are sometimes harmless. In Goins, the court held that the error was prejudicial as to one charge but harmless as to another because on the first charge, the “testimony was the primary evidence admitted in support of” that charge but on the second charge, the testimony did not address the major underlying facts and the guilty verdict was supported by other witness testimony and corroborating photographs. State v. Goins, 2017 UT 61, ¶¶ 50–51, 423 P.3d 1236.
¶34 Similarly, in Leech, this court identified prejudice with respect to one count but not as to three others. State v. Leech, 2020 UT App 116, ¶ 48, 473 P.3d 218, cert. denied, 481 P.3d 1039 (Utah 2021). For the first, we determined that the “charge could not be proven without crediting” the testimony of the kidnapping victim who wasn’t killed and “there [was] a reasonable likelihood that the jury would not have believed” this person “without the corroboration [the unavailable witness’s] testimony provided.” Id. ¶ 63. But we held that two of the convictions were independently supported by three other witnesses. Id. ¶ 52. And for the final charge, one of its elements “was not disputed at trial” and the other two elements “did not depend on the veracity of the [unavailable witness’s] account of the murder itself.” Id. ¶ 62.
¶35 In Ellis, the court found prejudice where “the preliminary hearing testimony in this case was central to the prosecution’s case on this charge.” 2018 UT 2, ¶ 2. The court so concluded because the witness “provided key pieces of evidence that the jury likely credited,” including her being “the only witness who could testify that the robber fled in a car”—making her “the crucial link for what occurred after [the clerk] lost sight of the robber.” Id. ¶¶ 43, 45.
¶36 Here, the court’s error in admitting Glenn’s testimony prejudiced Meyer because there is a “reasonable likelihood that the decision to admit [Glenn’s] preliminary hearing testimony altered the . . . verdict.” See id. ¶ 41 (cleaned up). The State’s presentation of the case against Meyer as a “process of elimination” impacts the fact-finder’s weighing of the evidence such that, for Glenn’s testimony to have been prejudicial, Meyer need show only that without the testimony, the court would have had a reasonable doubt that she was the source of the injuries. Meyer points us to this helpful insight offered by the Supreme Court of Illinois: “[I]f [the prosecution] intend[s] to obtain a conviction by the process of elimination by showing that no one else but [the] defendant could have been guilty, the burden [is] upon it to show that there was no one else in the other room.” People v. Boyd, 161 N.E.2d 311, 315 (Ill. 1959).
¶37 We agree with Meyer that removing Glenn’s erroneously admitted testimony makes a finding of reasonable doubt as to Meyer’s guilt much more likely. While Meyer’s own testimony corroborated Glenn’s account from the preliminary hearing that he was sleeping during the time Child was home from daycare until Father picked her up, that is not the only information Glenn provided. Glenn also testified that he did not cause the bruising. And he testified that, on the morning in question, he woke up and went directly to the car to drive Child to daycare, giving him no opportunity to interact with Child such that he could have caused her bruising that day.
¶38 The court, in providing the rationale for its conviction of Meyer, explained that it “found highly credible the testimony of” Nurse that the “bruising was consistent with the types of bruising she has seen in her child abuse conferences and trainings.” And it said, “You know, . . . Glenn is asleep by the time [Child] gets home and doesn’t really interact at all. And then we know for a fact that the injuries took place . . . definitively prior to when [Father] arrive[d] based off of the video.” The court clearly found that the bruises were caused before Father arrived, but it did not make a specific finding that the bruises could not have been caused earlier in the day. And Nurse, whose testimony the court found “highly credible,” testified multiple times that she could not provide a timeline for the cause of the bruising. When asked if it was “possible to at least rule out certain time frames,” Nurse responded, “What we were trained was that a fresher bruise is red or purple. . . . Red or purple means that this happened probably fairly close to the time that I saw her because of the darkness of the color, but . . . there’s no scientific way to date a bruise.” Nurse agreed that the bruises could have been caused “within hours.” But when Defense Counsel pressed, asking, “You testified a minute ago that you—it’s your opinion that with bruising, from what you observed, it’s more likely that it occurred like four hours before?” Nurse answered, “That day.” Defense Counsel stated, “That day. Two hours before, five hours before.” Nurse responded, “Purple-red is the colors you see first with bruising and there is—literally there is no way to determine when it happened.”
¶39 Given that removing Glenn’s testimony would have heightened the possibility that Glenn caused the injuries at some time outside the window between Child’s return from daycare and Father’s arrival, we conclude that Meyer was prejudiced. The State’s process-of-elimination approach makes Glenn’s preliminary hearing statements that he did not cause the bruising and did not have the opportunity to cause the bruising before Child went to daycare all the more significant. The State admitted as much when it argued for the admission of Glenn’s testimony, saying that “his testimony [was] necessary to the State to prove the case at trial.” We are hard-pressed to conclude that the testimony’s faulty admission was harmless when the State was so adamant that the testimony was essential in the first place. And the State fails to argue that Meyer was not prejudiced by the faulty admission or to point us to other evidence corroborating these key points of Glenn’s testimony. So without the preliminary hearing testimony, Glenn was not excluded—or at least not as easily excluded as he would have otherwise been. The State’s theory required it to eliminate all other possible suspects; without Glenn’s preliminary hearing testimony, it did not do so, and it is likely that the court would have concluded as much. In this respect, Glenn’s testimony is like that at issue in Ellis, because it was “central to the prosecution’s case” and “provided key pieces of evidence” under the State’s process-of-elimination approach. See 2018 UT 2, ¶¶ 2, 43. And this testimony is unlike that deemed nonprejudicial in Goins and Leech because Meyer’s conviction did “depend on the veracity of [Glenn’s] account.” See Leech, 2020 UT App 116, ¶ 62. Accordingly, the court’s error in admitting Glenn’s preliminary hearing testimony prejudiced Meyer.
CONCLUSION
¶40 The district court erred in admitting Glenn’s preliminary hearing testimony, and Meyer was prejudiced by that error. We therefore vacate Meyer’s conviction and remand this matter for further proceedings consistent with this opinion.
[1] Since the time of her charges, the defendant has remarried. She uses a different last name but still accepts the use of “Meyer.” We continue to use “Meyer” for simplicity and for consistency with the case name.
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.
What can I legally do if my child’s mother picks up our child in an Uber without a car seat? She is 5 years old, about 50 lbs. She is also the custodial parent with full custody rights, so she feels she can do anything she wants. Can I call the cops?
I’m old enough to remember when it was not illegal to wear a seatbelt. I’m old enough to remember when it was not illegal to permit a child to ride in a car without a seatbelt. I remember when there were no laws that children under a certain weight or height must ride in car seats when riding in cars. Most jurisdictions now have laws that require children of a certain age, weight, or height be strapped into a car seat when riding in a car.
So, the first thing you will need to do is find out whether it is illegal for your ex-wife to have your five-year-old, 50 pound child ride in a car without a car seat. You’ve mentioned that your ex-wife will often have your child picked up by Uber (a ridesharing service), and so you will want to ensure that even if there are laws that require a child to ride in a car seat when writing in a car, there are no exceptions for ridesharing services, taxicabs, buses, etc.
If, after conducting your research, you learn that it is illegal for your ex-wife to have your child ride in a car or when using a ridesharing service without having the child strapped into a car seat, then you would be well within your rights to report this to the police. just because you could do this, however, does not mean that you should, at least without first notifying your ex-wife that what she is doing is illegal and places your child in danger, and that if she refuses to comply with the law you will then report her to the police and perhaps even take the matter up with the court to get an order that requires her to secure the child in a car seat when traveling by car under circumstances when the law requires a car seat be utilized.
First, some marriages need to end in divorce. That is why divorce exists. But divorce is not always the answer when one or both spouses is/are miserable. Far too many divorces are not only unnecessary, but take things from bad to worse. For those marriages that need not end in divorce, teach and exemplify:
belief in God;
trust—humbly—in God;
that God’s plan for His children includes marriage and family (so He will help you when you and your spouse turn to Him for guidance and strength to overcome);
love for and service to God;
Loving and serving God leads us to loving and serving others (especially your spouse and children). Loving and serving others leads us to love and to serve God. You cannot sustainably have one without the other;
Go to church together and with your children. Associate with other families and learn from and support each other. It’s soothing and encouraging to see you’re not alone in the struggles couples and families face. It’s good to have others in your community to whom you can turn for support in good times and bad.
mercy and forgiveness for human faults and frailties;
Don’t demand perfection from your spouse or yourself—that’s impossible—but strive to be your best. Don’t exploit your spouse.
This does not mean that wrongs go unpunished and unrestituted, but it does mean that “the punishment fit the crime,” as the saying goes;
Marriage and family is a major purpose of our lives—it’s part of God’s plan for each of us;
Marry because you want “us” to be happy, supported, and fulfilled together. If you marry merely for “what’s in it for me,” you’re not ready or worthy to marry;
Being equals in marriage does not mean that you and your spouse are the same in every respect. Accept it. Adapt to it. Celebrate it. Don’t forget it.
Be honest in your dealings with your spouse and worthy of trust.
Accept that certain aspects of a good married life and of single life are incompatible, so those aspects of single life must be left behind and replaced to serve your role as a spouse and parent;
Accept the bitter aspects of married and family life with the sweet;
“Anyone who imagines that bliss is normal is going to waste a lot of time running around shouting that he’s been robbed. The fact is that most putts don’t drop, most beef is tough, most children grow up to just be people, most successful marriages require a high degree of mutual toleration, most jobs are more often dull than otherwise. Life is like an old time rail journey…delays…sidetracks, smoke, dust, cinders and jolts, interspersed only occasionally by beautiful vistas and thrilling burst of speed.” — Gordon B. Hinckley
Learn to make the compromises in your habits and lifestyle that marriage requires.
Don’t die on the hill of whose responsibility it is to take out the trash, whether “breakfast for dinner” is untenable, etc. Go to movies and restaurants you don’t like sometimes, if going is something your spouse enjoys (he/she needs to make the same accommodations for you too).
It will seem as though you are “making sacrifices” when in reality you are continuing to grow and mature as a person. You are developing dormant talents and new skills that a successful marriage needs to thrive.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Can being a noncustodial parent improve the child’s relationship with the noncustodial parent?
Recently, a reader on Quora, where I comment regularly, commented on a post of mine with this:
Anecdotally: When my parents separated I felt I saw my father more because when they lived together simply being in the house was considered fathering. This is something I’ve heard from many fellow adult children of divorce. Suddenly Dad was actually doing something with us and having full conversations.
I responded with this:
Thank you for reading and for commenting. I don’t know you, your father, or your collective circumstances, but assuming generally that a father was neither abusive or neglectful (most fathers who become “noncustodial” parents in divorce are in this category), but the children were nevertheless deprived of being in the equal care and custody of their father and mother and Dad was deprived of equal custody of the children, how often do you think that a divorce awarding “sole” or “primary” custody of the children to one parent results in the children’s relationship with the other parent improving? To what degree did any aspect of the children’s lives improve? Right. Not often, not much. Indeed, just the opposite is the case.
While there are some abusive, neglectful, and/or indifferent fathers out there, they are few and far between compared the vast majority of fathers. When fit, loving fathers (not perfect fathers, mind you) are cut off from their children by court order for even a few days, it is heartbreaking to father and children alike.
Few parents had children without wanting to be there for them as much as possible and for them to be with that parent as much as possible. Although parental rights are not earned from the state or conditioned upon the state’s approval, that’s essentially how custody policy and law have come to function.
Marginalizing a fit parent in a child’s eyes by reducing that parent to visitor, second-class, “backup” status necessarily marginalizes the child. “You don’t get the equal (i.e., the maximum) love and care of both parents, boy.” By depriving him/her of equal custody of his/her children with the other parent is to deprive the children of each parent exercising equal responsibility for the children, and to deprive the children of what is in their best interest.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Should I get sole custody of my children if their dad does not want to be involved with them? Or try to talk it out before I go through with it?
Your children deserve a loving, salutary relationship with both of their parents, so it is morally right to urge and encourage the father in this situation to love and care for his children. Yes, have that talk with the father. It’s pointless, however, to nag or try to guilt a father into loving and caring for his children when he doesn’t want to love and care for his own children. And it’s plain irresponsible and wrong to try to involve a father in his children’s lives if that father is a danger to the children, whether physically or emotionally/psychologically.
But where a father is not abusive, not a danger to the life or health of his own children, it’s not a bad idea to leave the door open. One day Dad might wake up and want to walk through it for the children’s benefit. Leaving open the possibility does not, of course, mean that the children will be receptive to repairing (or in some cases forming) their relationship with their father, but why slam that door and nail it shut if you must not? Do unto others as you would have them do for you. Don’t needlessly deprive the children of an opportunity to bond with their father.
That stated, this does not mean that you must ask the court for a joint child custody award. “Leaving the door open” does not require you treat Dad like an involved parent when he’s not. If Dad’s not around, not interacting with the children, not playing with them, bathing, feeding them, etc., not financially supporting the children, then there’s no good reason to act as though he is when the child custody awards are made. There’s no reason to “leave the door open” in a way that sets the kids up to have their hopes dashed and their hearts broken. If an absentee parent (father or mother) says that he or she recognizes the error of that absentee parent’s ways and wants to make amends, there must needs be a price to be paid by that parent. There will be hard words to hear from the other parent and child. He or she should expect caution and hesitancy, even skepticism, from the children and the other parent. There will be hard work and sacrifice ahead as well (and not just for Dad). Easier said than done. I get it. But if the children are willing to give Dad a second chance and he’s proven he can and wants to make good, it would be tragic and frankly inexcusable to deny the children that.
Utah Family Law, LC | divorceutah.com | 801-466-9277
My husband cheated on me and we’re getting a divorce. He begged me not to take his children away, but I want him to suffer. How can I make sure that he won’t gain custody or even visitation rights?
Surely you jest. Right?
Utah Family Law, LC | divorceutah.com | 801-466-9277
My parents are divorced, my father has no savings, he didn’t work for the entire period of their marriage, we were estranged for a while and now we are back, but now he keeps asking me for money, what do I do?
Do unto others as you would have them do unto you. I fully acknowledge that is easier said than done, but that doesn’t excuse any of us from doing the right thing.
If your father is a moocher, he has not right to mooch and you have no obligation to enable him in his mooching, just as you have no right to mooch.
If your father is in real need and you have the ability to help him, help him. He is your father, and we are commanded by God to honor our parents, and that commandment is not qualified to apply only to good parents. I can’t claim to understand why this is (just as I can’t always understand the “reason” behind every one of God’s commandments in every situation), but I believe it. Honoring our parents does not mean turning a blind eye to their faults and misconduct.
Utah Family Law, LC | divorceutah.com | 801-466-9277
How can I help my 12-year-old step daughter get away from an emotionally abusive mother?
Tell the child’s father (your husband) about the trouble and have him handle it. It’s not legally your fight. You should certainly share your observations and your suggestions, if sought, and you should offer to help in any reasonable way your husband my want or need you to help. But if Dad’s not on board, then no matter how much you want to help, it’s not your place to go it alone.
Be supportive of your step-daughter and of your husband, but don’t be the one who initiates anything with the mother or the courts. Again, it’s not legally your fight. If you raise the concern you might do your step-daughter’s cause (and both her credibility as a victim and your credibility as a witness) a disservice by looking like a busybody, a “jealous wife” trying to smear the child’s mother to gain the child’s and your husband’s favor and loyalty.
If both parents are wonderful, will the court still lean towards full custody to the mother?
[Note: I am a divorce lawyer of 25 years. I am not bitter about “what happened to me in my divorce” as I am not divorced. I have no axe to grind with women or mothers (I love my mother, sisters, wife, and daughters dearly and without reservation). With these facts in mind, I answer your question as follows below.]
Not exactly. But close.
While the courts are finally starting to confront and slowly abolish discrimination against fathers when it comes to making the child custody and parent-time awards, the odds are still ludicrously in the mother’s favor when both parents are fit and loving parents.
No question about it. The exceptions prove the rule.
“All things being equal,” the mother is favored (yes, I know that’s illogical, but the courts find ways to justify or to appear to justify illogical thinking, especially in making child custody and parent-time awards).
It’s grossly unfair to children and to fit, loving fathers alike, but it’s what courts frequently (more often than not) do.
Now clearly there are times when, even though Dad’s a wonderful parent, circumstances (such as the parents living too far apart or having an unorthodox/inflexible work schedule) may render impractical or impracticable the exercise of joint equal physical custody and/or result in joint equal custody arrangements doing the children more harm than good. But far, far too often fit, loving fathers are denied joint equal custody by virtue of plain old sexual discrimination.
What does “favoring the mother” (prejudicing the father) look like nowadays? Here are few of the most common situations:
Rather than awarding joint equal physical custody to both parents, awarding “just a little more time” to Mom than to Dad. Case in point: I worked a case where both Mom and Dad had full-time jobs, but the court awarded Mom more time with the children than with Dad anyway (8 out of every 14 days on a 14-day repeating schedule—the trial court even stated that denying the kids and dad that one day every two weeks would enable dad to have more time to get his work done). This was the case where I reached my breaking point (about three years ago). To his credit, my client agreed to appeal (and pay tens of thousands of dollars for the privilege), and he won, with the appellate court ordering the trial court to award equal child custody and parent time. If you believe that happens in every case like his, you would be mistaken.
Finding that, even in situations where the children are preteens or older, the mother was (past tense) the children’s primary caregiver when they were infants and toddlers, and therefore she always has that “advantage” over the father in the here and now. I have this case where mom had been working full-time for the past four years. The youngest of the couple’s children could take care of himself and did not need a full-time caregiver. Worse, mom worked outside the home full-time, while dad’s full-time job permitted him to work from home. At the temporary orders phase of the case, the court awarded mom primary physical custody of the kids because (and the court made no secret of the basis for its decision) she had been (past tense) the per children’s primary caregiver. Dad Wasn’t even seeking sole or primary custody; he was seeking joint equal physical custody, but he lost. Such an outcome is ridiculous and tragic, but not surprising.
Rejecting Dad’s claims that the mother is so lazy and that Dad not only works full-time each day outside the home, but then spends the rest of his time at home taking care the housekeeping and taking care of the kids as well. Why? Because (in my experience) in the minds of most judges it is unthinkable for a stay-at-home mother to be a lazy and inattentive parent (while at the same time it is easy for judges to believe—just believe—that a father doesn’t pull his weight when it comes to fulfilling child caregiving).
Penalizing the father for being the only full-time employed (in many cases the only employed) parent and awarding sole or primary physical custody of the children to the mother because she doesn’t work outside the home. Never mind (apparently) the fact that if the parties share joint equal custody, that would enable both parents to provide as much personal care to the children as possible and also allow them to work full-time jobs for their children’s financial support. Nope. Now clever courts will “acknowledge” and “praise” Dad for being a responsible and devoted breadwinner, but won’t award joint equal custody, justifying the unequal award of child custody with assertions such as:
Spending equal time in both parents’ Respective residences creates an “unstable” residential circumstance for the children.
The fact that unemployed Mom spends more of the waking hours with the children than does Dad (until the children start school, in which case the amount of time mom spends with the kids during waking hours is negligible compared to the time the children are with Dad while he’s at work) means that dad should spend even less of the children’s waking hours with them when he gets home from work. Otherwise stated, because Dad can’t be with the kids during the eight or nine hours that he is at work each day, that means that he should not spend the hours that he does have available to be with the children when the children could be spending that time or “consistently” in the custody and care of their mother. If you don’t understand this reasoning the first time you read through it, you’re not alone.
Courts will still indulge in blatantly discriminating against fathers:
by citing to the “fact” that women/mothers are “born nurturers”;
by citing to the “fact” that children are more closely bonded with, and thus need more time with, their mothers than with their fathers;
by claiming “it’s not the quantity of time but the quality of time” that children spend with their fathers that matters most, failing to concede that the quality of the time is a function of the quantity of time when it comes to parent-child interactions. How did the term “Disneyland Dad” evolve? Not by assuming the responsibilities and “heavy lifting” parental duties of day to day living. No, but by spoiling the child when they have such disproportionately little time on alternating weekends and one weeknight. It creates a warped sense of the father-child relationship and of reality for the kids in general, leading to the kids becoming self-absorbed, worldly, and feeling entitled around their fathers.
Utah Family Law, LC | divorceutah.com | 801-466-9277
I have studied this question throughout my career, and I’ve been a divorce and family lawyer for 25 years. If there is one family law question to which I know the answer, it is this one.
Eventually, a rebuttable presumption of 50–50 custody will become the norm. That change is happening now, although I am appalled at how slowly.
There are many reasons why a 50-50 custody award is not the presumptive/default physical child custody award. I will list those reasons in the order of what I believe to be the strongest to the weakest. I do not mean that the strength of an argument depends upon how intellectually rigorous and honest the reason is. I mean how entrenched the reason is in society and in the legal culture.
#1. Nothing else comes close: sexism. Any knowledgeable and experienced divorce and family law attorney will tell you that although sexism is not as strong as it once was a generation or two ago, it is still alive and kicking the butts of fit fathers who are denied the joint equal physical custody of their children. It is as shocking as it is terrifying as it is disgusting to see mothers and their lawyers make sexist arguments that the court’s still accept. Such as?
Children, especially young children, need to spend more time with their mother than with their fathers.
Women are born nurturers, more naturally competent parents than are men.
Children are more strongly bonded to their mothers than to their fathers.
(This one is particularly insulting) men who want more than minimal custody and parent time with their children do so to avoid having to pay child support.
While it is true that some men don’t really want to be that involved in their children’s lives, yet seek sole or joint custody simply to reduce the amount of child support they have to pay without having any intention of engaging in the level of responsibility that a joint equal physical custodian should, to suggest that men in general want joint custody solely or primarily to save money is a pretty damn cynical view of men, not to mention a pretty damn false one. Think about it. If men wanting joint custody are motivated by greed, does that mean that women wanting sole or primary physical custody of their children are motivated by greed as well?
We all know plenty of women who oppose a joint custody award and seek a sole or primary custody award precisely for the financial benefits primary or sole custody confers. It is unfair to presume that either mothers or fathers inherently seek a child custody award that is the most financially advantageous at the expense of their children’s emotional and physical well-being.
#2. Unscientific and pseudoscientific principles (that are usually, though not always, invoked to mask the blatant sexism). Such as?
Children should not be going back and forth like ping-pong balls between their parents’ respective homes
There is some truth to this, but only under certain circumstances. The way I explain it to my clients and to legal professionals with open minds (few though there are currently) is that joint equal custody doesn’t benefit children if the parents live so far away from each other that the children don’t have access to the same group of friends and other familiar surroundings and resources.
If mom and dad live many miles apart, the kids end up having no friends in either mom’s neighborhood or dad’s neighborhood. Here’s why: they are only in mom’s neighborhood half the time and only in dad’s neighborhood half the time. that makes it hard to make friends in either neighborhood. And so the kids often end up with no friends in either neighborhood. Certainly no close friends. They don’t go to church with the same kids on the weekends. While they may go to one school, if that school is in one parent’s neighborhood, then the kids don’t do anything with their friends after school on the days and weeks when they are with the other parent.
Some parents and lawyers and judges think that the solution to this problem is having the children go to a school centrally located between moms and dads house. this almost never works well. the kids may have friends at school, but because they do not live in the neighborhood without school is located, their friendship is limited to the time they spend at school.
Joint equal physical custody works best for children when the parents live within walking distance of each other, when the parents reside in the same neighborhood and school district and parish. Yet even when these circumstances exist, I’ve seen courts that still refuse to award of joint equal custody claiming that going back and forth between moms and dads house is a problem in itself, not a symptom of parents who live too far apart.
joint equal custody makes it hard for kids to follow two different sets of rules in each parent’s home. What utter bilge. Sure, if the environments and rules in each parent’s home are so radically and catastrophically different from one another as to do the children harm, then perhaps joint equal custody can’t work. But such a scenario just doesn’t arise often enough to dismiss the idea of joint equal custody out of hand on this basis. The majority of parents are going to agree upon things like diet and bedtimes, and those parents who aren’t in total agreement will likely have rules and routines that don’t differ enough to do the children harm (such as bedtime at mom’s being 8:30 p.m. and bedtime at dad’s being 9:00 p.m., or mom may eat out with the kids more often than dad does— these are differences that are going to do the children long-term damage, if any damage at all).
There is one legitimate reason why every child should not be in a 50–50 physical custody arrangement: when the circumstances of the parents and children are not conducive to a joint equal physical custody (50-50″) award.
Sometimes the circumstances of one or both parents makes joint equal physical custody more trouble than it’s worth, of no benefit to the child, or even deleterious to the child.
Work schedules and distance between the parents’ respective homes may not be conducive to the exercise of joint equal physical custody.
If a parent is unfit to exercise custody of a child, then that’s not really a problem with joint equal physical custody, but a matter of the parent’s incompetence. Holding father to a burden of proof that presumes them to be unfit until proven otherwise, is patently irrational, unconstitutional, and fundamentally unfair and gratuitously harmful to children and fathers alike.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Christmas/Winter Break for Parents Under Utah Code § 30-3-35 or (§ 30-3-35.5 for a child 18 months and older)
If your Christmas/Winter break starts December 17, 2021 and ends January 2, 2022 (i.e., school starts back up on Monday, January 3, 2022), then that means the period between December 17 and January 2 and 17 days (an odd number of days in the holiday break parent-time period). This is how the holiday would be divided:
§ 30-3-35(2)(f)(viii): the first portion of the Christmas school vacation as defined in Subsection 30-3-32(3)(b), including Christmas Eve and Christmas Day, continuing until 1 p.m. on the day halfway through the holiday period, if there are an odd number of days for the holiday period or until 7 p.m. if there are an even number of days for the holiday period, so long as the entire holiday period is equally divided.
The day halfway through the period between December 17 and January 2 would be 1:00 p.m. December 25.
No, mothers are not being treated “worse” by the legal system these days, with more and more states leaning toward awarding joint custody to fathers more.
Mothers do not have an inherent or presumptive right to be awarded the sole or even the primary custody of their children. This idea is known (was known) as the “tender years doctrine,” which has been determined to be sexually discriminatory in most jurisdictions in the U.S.A. (perhaps all jurisdictions, I don’t know for certain).
It is undeniable that fathers today are generally being treated more fairly in the child custody award analysis, and that trend appears to continue, but as a general matter fathers are still presumed to be second class parents and discriminated against accordingly.
To be sure, there are children whose best interests are ignored in favor of the court indulging personal and cultural biases. And this mistreatment sometimes includes (but is not limited to) when the child custody award is made. I cannot deny that there are mothers and fathers who are mistreated by the legal system, but it is my experience and opinion that–with the exception of a current large but slowly decreasing number of jurisdictions–for every mother who are cheated by the system, there are dozens of fathers who suffer the same unfair fate.
Some people believe that their lawyers “know” that their clients “obviously” want sole custody of their children when a child custody battle arises. Not true. Tell your lawyer what kind of custody arrangements you want and why. Your lawyer, if he/she is a good lawyer, will evaluate the strengths and weaknesses of your position and tell you whether he/she believes you can get what you want or whether you’re setting your sights too high or even too low.
Some people believe that if both parents have no history of spousal or child abuse that the court will “automatically” award the parents 50/50 legal and physical custody of their children. Not true. Not even usually true.
Some people believe that unless you or the other parent wants to fight over child custody, that the court will award the parents joint equal legal and physical custody of their children. That is not true of all jurisdictions. In my estimation, most jurisdictions do not presume that joint equal legal and/or physical custody is best for children, and even in those jurisdictions that do have such a presumption, if one of the parents objects to such a presumptive custody award, the court will hold hearings and/or a trial to determine whether the presumption has been rebutted.
At the time I write this, I’ve been practicing divorce and family law for 24 years, and it’s simply a fact that while it is getting easier for men to get a fair shake in the child custody fight, in most jurisdictions it is easier for a mother to win primary physical custody of the children than it is for a father to win primary physical custody of the children or even joint equal physical custody of the children.
In my experience as a divorce and family lawyer in Utah, most courts never even give a father seeking merely joint equal physical custody so much as a losing chance to prove he can exercise joint equal custody in the children’s best interest. Such courts just presume that for whatever reason(s)—real or imagined—the father can’t hack it, and then they make their child custody awards accordingly.
Some courts subconsciously discriminate, not even realizing what they are doing, just taking for granted that “children belong with their mother” and “children don’t need more than a few weekends and holidays and a few hours each week with their dads” and/or “dads don’t really want their kids to be reared equally by both parents”. Courts that deliberately discriminate will selectively cite to the facts and/or fabricate facts to support their foregone custody award conclusions. I’ve witnessed these scenarios personally time and again as a lawyer. And I represent both men and women. I don’t have a personal stake in my observations. I’d like nothing more than to say, “The system doesn’t discriminate against fathers anymore,” but at this point in my career, I cannot honestly say so.
Recently, public service YouTube channel I run (UFTLV – Utah Family Law TV – not run by or run to support Utah Family Law, LC) received a comment on this video:
“I’m pretty convinced this channel is a pro fathers [sic] rights movement channel. Its [sic] not surprising at all he got joint custody. Its [sic] an automatic presumption nowadays for mother and father to share joint custody.
My response follows below:
Thank you so much for watching and for commenting. You are mistaken on both counts. 1) This is not a pro-father’s rights channel (nor is it a “pro-mother’s rights” channel). It is a pro-fairness, pro-child, pro-due process, and pro-common sense channel. 2) It is not automatically presumed everywhere that child custody will be awarded to both parents on a joint custody basis.
1) For generations mothers were (and still remain in most jurisdictions) presumed to be “the better parent” simply by virtue of their being mothers/women, without evaluating the parental fitness of each parent to determine whether the children would be best served by a sole or joint child custody award. It was (and still is in many jurisdictions) believed that children need to spend more time in their mothers’ care than in their fathers’ care, even if and when the father is ready, willing, and able to share joint equal custody of the children.
2) While there are more and more states in the U.S. passing laws that presume the parents will be awarded joint legal and joint physical custody of their children, many states have no such presumption and many states still treat fathers as second class parents when it comes to making the child custody award. I myself have been told by a judge just this year that “it’s not the quantity of time the children spend with their father but the quality that matters.” But quality of time parents and children spend together is a factor of quantity. Where both parents are fit parents, the “best parent” is both parents. Children deserve no less than joint equal custody in such situations. Fit parents deserve no less as well.
Author Bio: Cristin Howard runs Smart Parent Advice, a site that provides parenting advice for moms and dads. Cristin writes about all of the different ups and downs of parenting, provides solutions to common challenges, and reviews products that parents need to purchase.
Divorce isn’t easy on anyone, and navigating this hurdle won’t come without conflict. That makes it all the more important that when you talk to your children about it, you remain a united front, explain it calmly, and be loving parents first.
There are plenty of extra steps you can take to make this reality easier to handle. Prepare for the conversation, and don’t shy away from it or the feelings that will result. Make sure you’re both on board with helping your children overcome this obstacle along with you.
Tell Them Together
Once you and your spouse reach this conclusion, it’s still important that you remain a united parenting front. After all, while your marriage may have changed, your role as parents will always be the same.
This is not the time to place blame or argue about whose responsibility it is to break the news. Using personal pronouns like “we” instead of “I” will ensure that your children understand it’s what both of you want. They don’t need to see the ins and outs of a crumbling relationship. What they need is two parents who still love them, no matter what.
Your children also need to know that it’s not their fault and you’ll work to make sure their lives change as little as possible. They need as much assurance as you can give them that even though you won’t be living together anymore, you’ll both be as involved as possible in everything they do.
It helps to have a plan before you have this conversation so you can answer questions like where you will live, where they will be going to school, and the timeline in which all of this will be finalized.
Give Them Time to Process Their Feelings
Remember that once you conquer what seems like the most overwhelming hurdle, the process is far from over. Your children may not want to talk right now, but over the next few months (or even years), they’ll continue to process their feelings in a variety of ways.
Make sure they know you’re always there for them when they need to talk about how they feel or what they’re thinking.
After all, not all children have matured enough to handle their feelings in reasonable ways. They may lash out, blame you, throw tantrums, cry, or become reclusive. They’ll find the only way they know to process their feelings, and it’s important to allow them to do so.
It will be difficult on you, it may seem like you’re the only parent dealing with it, and it may even come at a time in which you feel like you’re the one who had to deal with abuse or infidelity.
However, remember that your children didn’t see any of that (hopefully), and they’re getting a pretty raw deal as well. They need help coping with their anger, sadness, and everything else they’re feeling.
Spouses who can’t seem to work things out between each other can still be excellent parents. Remember that whatever you’re feeling toward your ex, that person is still a beloved parent to your children, and they need your support more than anything else right now.
Prepare to Deal with Trauma
Divorce is a traumatic event for children that can cause behavioral or academic decline. As you process your emotions, you may be blind to the grief your children are experiencing. As hard as it may be, keep your children out of adult arguments and present a united front for them.
Expressing contempt for your former spouse will just make it harder for your child to trust either of you and will add to their confusion. They can’t understand what went wrong in the first place, and need to feel safe with both parents.
Work Hard to Create Two Households
Your children should feel comfortable, safe, and at home with both parents, so working together to create two households, unified in the way you treat your children is incredibly important.
If you’re still living close to one another, it makes it easy to stay involved, share holidays, and keep some semblance of normalcy in their lives. They can stay at the same school, see their friends, and keep the same extracurriculars.
It’s no mystery that this will make the adjustment easier on them. However, that’s not always possible. Make sure both parents are on board with how your children can communicate with one parent while they’re staying with the other.
Put forth the effort to ensure your children have the tools they need to stay in touch while you’re far apart. Do everything you can to agree on the rules in each new household to make the transition smoother.
Remain a Family Unit
You may now be a single parent, but you can still remain a united parenting team in a lot of ways. Putting aside any animosity you have for each other and understanding what your children are going through will help you make better decisions moving forward.
Just like when you were married, you won’t always agree on everything, but if you can both agree that remaining a parent your children can rely on is the most important thing right now, you’ll make great strides to adjusting your life in a way that makes the transition easier on them.
Working together won’t be easy, but it’s definitely for the best, if you can make it work.