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Can I petition for annulment if my husband already filed for dissolution of marriage?

I will answer this question based up on the law of the state of Utah, which is the jurisdiction in which I practice divorce and family law.

Yes, you can, IF you qualify for an annulment. If your spouse files for divorce, you can countersue for annulment IF, and only if, you qualify for an annulment.

Before we go any further with this question understand this (because many people don’t understand this): divorce or annulment is not an option for everyone. Some people who are married cannot quality for an annulment. All valid marriages can be terminated by divorce. Not all marriages can be annulled.

What factors must be met to qualify for annulment? Black’s Law Dictionary ((11th ed. 2019), Bryan A. Garner, Editor in Chief) explains it this way:

An annulment establishes that the marital status never existed. So annulment and dissolution of marriage (or divorce) are fundamentally different: an annulment renders a marriage void from the beginning, while dissolution of marriage terminates the marriage as of the date of the judgment of dissolution. Although a marriage terminated by annulment is considered never to have occurred, under modern ecclesiastical law and in most states today a child born during the marriage is not considered illegitimate after the annulment.

To obtain an annulment one must establish that the marriage was void from its inception. While a divorce ends a marriage, an annulment usually has the effect of declaring that no marriage occurred and so it is effective retroactively, meaning it never happened as a matter of law.

One cannot obtain an annulment except on the grounds recognized by law for an annulment. There are different grounds in different jurisdictions, but some of the common grounds are: fraud, coercion, bigamy (already married to someone else at the time of the second purported marriage), being under the age of consent, marriage between close relatives (parent and child, siblings, in some jurisdictions, first cousins), mental incapacity, intoxication, knowing one is infertile but concealing the fact at the time of the marriage, being impotent and concealing that at the time of the marriage, intoxication, refusal to engage in sexual intercourse, misrepresentation as to religion, having a sexually transmitted disease at the time of marriage, and the woman was pregnant by another man at the time of marriage).

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

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

THE UTAH COURT OF APPEALS

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

C.S.,

Appellant,

V.

STATE OF UTAH,

Appellee.

Opinion

No. 20220264-CA

Filed March 23, 2023

Sixth District Juvenile Court, Manti Department

The Honorable Brody L. Keisel

No. 1097003

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

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

Martha Pierce, Guardian ad Litem

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

HARRIS, Judge:

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

BACKGROUND

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ISSUES AND STANDARDS OF REVIEW

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

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

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

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

ANALYSIS

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

I. Evidentiary Standard

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

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

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

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

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

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

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

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

II. Reasonable Efforts

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

A

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

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

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

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

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

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

B

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

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

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

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

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

CONCLUSION

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

¶46 Affirmed.

 

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

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

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

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

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

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

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

Court of Appeals of Utah.

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

H.W., Appellant,

v.

State of Utah, Appellee.

No. 20210886-CA

Filed November 17, 2022

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

Attorneys and Law Firms

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

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

Martha Pierce, Salt Lake City, Guardian ad Litem

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

Opinion

TENNEY, Judge:

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

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

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

BACKGROUND

DCFS Petitions for Protective Supervision

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

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

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

 

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

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

DCFS Petitions for Custody

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

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

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

Mother Requests Placement with Grandparents

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

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

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

Juvenile Court Terminates Reunification Services

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

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

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

Mother Enters an Inpatient Treatment Facility

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

Juvenile Court Terminates Mother’s Parental Rights

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ISSUES AND STANDARDS OF REVIEW

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

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

ANALYSIS

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

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

I. Grounds for Termination

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

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

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

 

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

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

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

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

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

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

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

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

II. Best Interest

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

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

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

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

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

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

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

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

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

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

¶69 Third, if a court has complied with its statutory obligations, its resultant best interest determination is entitled to deference. See In re J.J.W., 2022 UT App 116, ¶ 18, 520 P.3d 38; see also In re E.R., 2021 UT 36, ¶ 22, 496 P.3d 58. This is because the best interest determination “is a factually intense inquiry dependent on the unique circumstances and needs of each child.” In re E.R., 2021 UT 36, ¶ 22, 496 P.3d 58 (quotation simplified). Furthermore, “the juvenile court has a superior perspective in light of its view of the demeanor of both parents and children.” Id. ¶ 23. For these reasons, “we do not lightly reverse a court’s best-interests determination.” In re A.H., 2022 UT App 114, ¶ 38, 518 P.3d 993. But to be clear, a juvenile court’s determinations are not “afforded a high degree of deference”; rather, “the deference afforded to the juvenile court is the same level of deference given to all lower court findings of fact and fact-like determinations of mixed questions.” In re E.R., 2021 UT 36, ¶¶ 29–30, 496 P.3d 58. Accordingly, we will overturn a juvenile court’s decision “if it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” Id. ¶ 31 (quotation simplified). In In re J.J.W., for example, we remanded because the district court failed to consider whether a kinship placement could serve the child’s best interest. 2022 UT App 116, ¶ 37. And in In re A.H., we reversed where the juvenile court did consider the kinship placement but its decision went “against the clear weight of the evidence presented at trial.” 2022 UT App 114, ¶ 57, 518 P.3d 993.

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

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

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

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

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

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

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

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

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

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

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

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

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

CONCLUSION

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

——————–

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In re J.P. – 2021 UT App 134

2021 UT App 134

THE UTAH COURT OF APPEALS

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

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

Opinion

No. 20210185-CA

Filed December 9, 2021

Fifth District Juvenile Court, Cedar City Department

The Honorable Troy A. Little

No. 1170183

Colleen K. Coebergh, Attorney for Appellant

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

Martha Pierce, Guardian ad Litem

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

HARRIS, Judge:

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

BACKGROUND

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

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

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

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

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

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

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

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

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

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

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

ISSUE AND STANDARD OF REVIEW

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

ANALYSIS

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

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

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

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

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

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

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

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

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

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

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

CONCLUSION

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

——————————————————

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

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

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

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

2021 UT App 134 

THE UTAH COURT OF APPEALS 

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

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

Opinion 

No. 20210185-CA 

Filed December 9, 2021 

Fifth District Juvenile Court, Cedar City Department 

The Honorable Troy A. Little 

No. 1170183 

Colleen K. Coebergh, Attorney for Appellant 

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

Martha Pierce, Guardian ad Litem 

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

HARRIS, Judge: 

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

BACKGROUND 

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

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

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

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

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

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

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

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

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

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

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

ISSUE AND STANDARD OF REVIEW 

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

ANALYSIS 

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

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

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

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

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

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

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

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

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

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

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

CONCLUSION 

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

 

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Do I have to publish name change in newspaper in Utah?

No, Utah law governing name change does not require you to publish in the newspaper your new name or the fact that you have changed your name. What happens in Utah is that you prepare your petition for name change, file it with the court, appear at a hearing before the court on your petition, and, if your petition is granted, your name is then officially and lawfully changed. You are not required to take any further steps. 

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

https://www.quora.com/Do-I-have-to-publish-name-change-in-newspaper-in-Utah/answer/Eric-Johnson-311  

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I have custody of my child. He’s refusing to come home. What now?

I have custody of my child. He left to go to his mom’s last Friday for the weekend. He is refusing to come home because he wants to live there. What happens now?

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

And that answer is: realistically speaking, probably nothing.

As a divorce and family law attorney, I have been on both sides of this issue, meaning I’ve represented the parent with custody of the child who won’t come back, and I’ve also represented the noncustodial parent to whose house the child has “fled” and won’t leave.

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

Briefly, if the children are old enough that they cannot be physically controlled by a parent and forced into a car from the noncustodial parents house back to the custodial parent’s house, then the courts are usually not going to intervene. This means that a court will, in fairness and realistically, tell the parents that pragmatically there’s really nothing that they ought to do to enforce the child custody order if the child himself or herself is old enough to put up a fight and/or call the police and/or DCFS and report you for child abuse if you try to force them into the car to go back to the custodial parent’s house. Besides, the child who is old enough to put up a fight is also likely old enough to run away from the noncustodial parents home if anyone tries to force him or her to reside with a parent with whom the child doesn’t want to live.

And so, you get in a situation where the child is disobeying the court’s custody order, but most courts either don’t have the cats to hold the child in contempt of court or don’t feel it is appropriate to sanction a child who won’t comply with the court’s child custody orders. Yet these same courts will also often refuse to modify the child custody award because they don’t want to acknowledge that children, of all people, have the de facto power to defy court orders with impunity.

Next, you need to be aware of the possibility that your custodial parent ex will try to blame you for your child refusing to return to the custodial parent’s home, regardless of whether that is true. Many times, a perfectly innocent noncustodial parent will tell his or her acts and the court, “Look, I’ve told the child what the court order is and that both our and I are expected to comply. But the child refuses to comply anyway. Now what you want me to do? Kick the child out and lock the door behind him?” Some courts sympathize with that predicament, others don’t buy it. Which means it is entirely possible that you would be held in contempt of court for doing absolutely nothing wrong, if the court believes you enticed or coheirs the child to say he or she wants to stay with you. So you need to keep that in mind.

So if you are a noncustodial parent of a child who refuses to reside with the court ordered custodial parent, then you must ask yourself a few questions:

First, if the child refusing to live with the custodial parent because the child is a spoiled brat who has no legitimate reason for refusing to live with the custodial parent? If the answer is yes, then you as the noncustodial parent have both a legal and moral obligation to talk the child into going back to the custodial parent’s home, or if persuasion doesn’t work, imposing limitations and restrictions and punishments upon the child so that the child won’t get the impression that he or she is in charge.

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

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

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

https://www.quora.com/I-have-custody-of-my-child-He-left-to-go-to-his-moms-last-Friday-for-the-weekend-He-is-refusing-to-come-home-because-he-wants-to-live-there-What-happens-now/answer/Eric-Johnson-311?prompt_topic_bio=1

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

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

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

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

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

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

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

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

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

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

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

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

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What are the Steps for Getting Divorced in Utah?

What are the Steps for Getting Divorced in Utah?

To start the divorce process, you must begin by filing what is called a complaint or a petition for divorce with the court. This means you are suing your spouse for a divorce. Don’t let the term “suing” frighten you or your spouse. “To sue” means to institute legal proceedings against your spouse. That’s all.

Then your complaint or petition for divorce is served on (or officially delivered to) your spouse, usually by a law enforcement officer or a private process server. You can also waive personal service by a law enforcement officer or process server and just accept service by signing a simply accepting the documents without the need for personal service.

If you and your spouse agree to the terms of your divorce, also known as an “uncontested divorce,” the issue of “service of process” doesn’t come up because you submit voluntarily to the jurisdiction of the court by signing and filing with the court your divorce settlement agreement and other documents that indicate you recognize you are subject to the to the jurisdiction of the court.

If you’re the one seeking a divorce and the one who filed for divorce, your spouse has 21 days to respond to the complaint for divorce or 30 days to respond if your spouse is served outside of the state of Utah.

The name for the response to a complaint for divorce is an “answer”. If you wish to countersue your spouse for divorce after you get served with a petition or complaint for divorce, you can file an “answer and counterclaim”.

How the case proceeds from this point could take various routes:

  • At any point during the pendency of the case, as long as the trial has not concluded and the court issued its decree and orders, you and your spouse can reach a settlement agreement.
  • After the complaint and answer or answer and counterclaim are filed, the parties have to exchange some initial financial information and information about the evidence each party has and what witnesses the parties might call to testify at trial.
  • Then the parties have 180 days to conduct discovery. The purpose of discovery is to obtain facts and information that will reveal the truth in a matter and help both parties and the court determine what’s truly in dispute and what is not. After discovery closes, then the case is almost ready to take to trial, but not quite.
  • Before a divorce case can go to trial in Utah the parties must first to go mediation and try to settle the case (if the parties don’t want to go to mediation they can ask the court to waive the mediation requirement “for good cause,” but it’s not easy to get the court to find good cause to waive mediation. Most couples go to mediation, even if they think it won’t work, if for no other reason than to check the “we went to mediation” box, so that they can get to trial.
  • After discovery closes and mediation is completed, either party can certify the case as read for trial.
  • Then the court schedules one or more pretrial conferences to prepare for trial, set a trial date, the number of day the trial will take, and other matters.
  • After trial, the court can take up to 60 days to issue its decision on the case, after which one of the parties’ respective attorneys is ordered to prepare the Decree of Divorce for the court’s signature.

That’s the Utah divorce process in a nutshell.

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

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Utah Divorce Case Timeline Summary

Utah Divorce Case Timeline Summary

The greatest influence on how long a divorce case takes is usually how much and how severely the parties fight over the issues. The more they fight and the more things they fight over, the longer and more expensive the divorce process is. But here is a general timeline for a Utah divorce, step by step.

Bottom line: Generally speaking, a contested divorce will likely take between 15 months to 24 months. Bitterly contested divorce cases can take many years. An uncontested divorce can take as little as 45-60 days to complete from the date of filing, if the parties agree on everything.

Timeline

What happens first?

  1. Complaint or petition for divorce is filed (“complaint for divorce” and “petition for divorce” are interchangeable terms). The person who files is the “petitioner”.

What happens next?

  1. Your spouse is served with the summons and a copy of the complaint/petition for divorce. Your spouse is the “respondent”.

When?: The respondent has 21 days to file an “answer” to your complaint. Your spouse will likely not only answer your divorce complaint but also counters through you which is known as a counterclaim.

You will then have 21 days to respond to the counterclaim after it is served on you (and if you have an attorney the counterclaim will be sent to your attorney, and your attorney should provide you with a copy of it).

What happens next?

  1. Financial declaration and initial disclosures. After the complaint have been filed with the court and served on your spouse and after the parties have responded to each other’s respective complaint and counterclaim for divorce they have to exchange what are known as financial declarations and initial disclosures.

Financial declaration. The financial declaration requires you to identify

      • Whether you are employed and if so, by whom and what you earn from employment.
      • Other forms of income other than income from a job (unearned income).
      • Monthly expenses
      • Business interests, if you have any
      • Financial Assets. A description of your financial assets
      • Real Estate. Identifying any interests in real estate that you own
      • Personal Property. A description of your personal property, such as vehicles, boats, trailers, major equipment, furniture, jewelry, and collectibles
      • Debts Owed. A list of your debts and obligations, what you owe, and who your creditors are.

Initial Disclosures. Your initial disclosures require you to disclose:

      • each individual likely to have discoverable information supporting your claims or defenses
      • each fact witness you may call at trial
      • a copy of all documents, data compilations, electronically stored information, and tangible things in your possession or control that you may offer at trial
      • a copy of all documents to which you refer in your pleadings

When?: The petitioner must serve her financial declaration and initial disclosures 14 days after the answer is filed (that’s a lot of work in a fairly short time, so don’t dillydally if you’re the petitioner). The respondent is required to serve his financial declaration and initial disclosures 28 days after the answer is filed.

What happens next?

  1. Temporary orders. After the answer and counterclaim have been filed with the court, it is typical for the parties to request what are known as “temporary orders” from the court. Temporary orders are put in place to ensure that the leaves and affairs of the family are maintained during the pendency of the divorce action. So temporary orders can include things like responsibility for the mortgage and other expenses associated with the house and family. They can include temporary orders of child custody and parent time and child support and spousal support. Temporary orders can include other provisions as well, depending upon the circumstances and needs of your family.

When?: You soonest you could file for temporary orders is when you file your petition/complaint for divorce. Most people file after the petition/complaint for divorce is filed.

After the motions are file the court usually schedules a hearing within 1 to 3 months of the date the motion was filed.

What happens next?

  1. Discovery. Discovery is the process By which the parties request documents and other evidence from each other to help them get a better understanding of the issues, and to determine what issues are really disputed and which ones aren’t or can’t be disputed. Discovery is used to help the parties gain a better understanding of the issues and to help each party build its strongest case against the other party.

When?: You are allowed 180 days for discovery. The discovery period starts the day after the last day that initial disclosures and financial declarations are due from the respondent.

If you have children and you and your spouse are fighting over child custody: a custody evaluation may be ordered. A custody evaluation is supposed to take 4 months. They almost always take longer. Sometimes the custody evaluation won’t be completed by the time discovery closes. Be prepared for this possibility.

What happens next?

  1. Divorce Orientation and Education Courses. If the divorcing couple has minor children then divorce orientation and education courses are mandatory for both parties. You can learn about and sign up for those courses using this link: https://www.utcourts.gov/specproj/dived/

When?: You can take the divorce orientation and education courses any time, even before you file for divorce. Most people sign up for and complete the courses around the time after the answer and the reply to counterclaim have been filed and served.

You cannot obtain a decree of divorce without completing the divorce orientation and education courses or having the requirement to attend them waived (and for most people it’s probably more trouble than it’s worth to try to get the courses waived).

What happens next?

  1. Mediation. You must go to mediation before the case can go trial. Most divorce actions settle and most settle in mediation. If neither party wants to go to mediation or there are circumstances (such as domestic violence) that would not make mediation feasible or worthwhile, the parties can move to waive the mediation requirement.

When?: You can go to mediation any time, even before you file for divorce, although if you go to mediation before you or your spouse file(s) for divorce the court may make you go to mediation again before you will be allowed to go to trial.

So bear in mind that you can go to mediation at any point in the case.

You cannot obtain a decree of divorce without engaging in mediation or having the mediation requirement waived (and for most people it’s probably more trouble than it’s worth to try to get the courses waived).

What happens next?

  1. Trial. If the parties do not settle their case (whether in mediation or on their own), then the case goes to trial.

When?: After discovery has closed (after 180-day discovery period has elapsed), then the case can be certified for trial.

It usually takes at least 2 or 3 months from the time a party requests a trial date to get a trial date. All told, it takes about a year to a year and a half to go from filing for divorce to trial.

It usually takes at least 2 or 3 months from the time a party requests a trial date to get a trial date.

All told, it takes about a year to a year and a half to go from filing for divorce to trial.

What happens next?

  1. After trial, the court will make its decisions as to the issues that were argued over and “tried” in court and then the Decree of Divorce is prepared and the court signs it.

When?: Usually 30 to 60 days after trial.

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

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How can I find my spouse’s response to my divorce petition?

How can I find my spouse’s response to my divorce petition?

You should have received a copy at the same time when she filed her response with the court.

She or her attorney (if she is represented by an attorney) should have provided you (or your attorney, if you have an attorney representing you) with a complete copy of her response (“served simply means that she gave you a copy of her response), either by having someone (including herself) hand you a copy or with a copy or having her attorney (if she has one) give or mail (or email, if your jurisdiction allows for that) a copy. She is required to do that.

If she filed her response with the court but did not serve you, MAKE SURE YOU NOTIFY THE COURT of this fact, so that it is noted in the court’s record.

If she filed her response with the court but did not serve you, either go to the courthouse and request a copy (you will likely have to pay the costs of photocopying) IF THE COURTHOUSE IS STILL OPEN IN THE AGE OF COVID-19.

If the courthouse is closed due to COVID-19, the courthouse will likely have a policy of sending you a copy by mail or fax or email if you call or email the court clerk to request a copy. If you don’t know how to find the courthouse or it’s telephone number or e-mail address, ask a local attorney how to get in contact. You should have little trouble finding one who is happy to do you that courtesy (so if at first you do not succeed, try a few times until you find the kind attorney).

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

https://www.quora.com/How-can-I-find-my-spouses-response-to-my-divorce-petition/answer/Eric-Johnson-311

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Do you flee the country to avoid alimony? Or do you happily comply?

Do you flee the country to avoid alimony? Or do you happily comply?

First, let’s discuss the “option” of fleeing the country to avoid paying alimony. It’s not really an option unless you consider obeying the law optional. In one sense, obeying the law is not optional because the law itself says so and makes provision for its enforcement by those who will not obey it. In another sense, obeying the law is not morally or ethically optional because if everyone treated obedience to law as optional and without adverse consequences for disobedience to it, we’d have anarchy, chaos, and misery.

Second, you have more options than those you listed in your question. If you are divorced and forced to pay alimony to your narcissistic ex-spouse, you not only have the options of 1) fleeing the country to avoid paying or 2) “happily complying”; you can also 3) grudgingly comply or 4) have the option of taking action in court to modify or terminate the alimony award.

The option of taking action in court to modify or terminate the alimony award is contingent on whether you can meet the legal requirements for modification. In Utah, where I practice divorce law, those requirements are either:

  • Unless a decree of divorce specifically provides otherwise, establishment by the party paying alimony that the former spouse, after the order for alimony is issued, cohabits with another individual, even if the former spouse is not cohabiting with another person when the party paying alimony files the motion to terminate alimony (and note that a party paying alimony to a former spouse may not seek termination of alimony under this provision later than one year from the day on which the party knew or should have known that the former spouse has cohabited with another individual); or
  • proving that, based on a substantial material change in circumstances not foreseeable at the time of the divorce, a modification or termination of the alimony award is warranted or necessary. Regardless of whether a party’s retirement is foreseeable, the party’s retirement is a substantial material change in circumstances that is subject to a petition to modify alimony, unless the divorce decree expressly states otherwise.
    • In determining an alimony modification (which could include termination), the income of any subsequent spouse of the alimony payor may not be considered, with the exceptions that the court may consider the subsequent spouse’s financial ability to share living expenses, or if the court finds that the payor’s improper conduct justifies that consideration, or if the court finds some other compelling reason to do so.

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

https://www.quora.com/Youre-divorced-and-forced-to-pay-alimony-to-your-narcissistic-ex-spouse-Do-you-flee-the-country-to-avoid-it-If-so-where-or-do-you-happily-comply/answer/Eric-Johnson-311?prompt_topic_bio=1

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How many back and forth claims and counterclaims are allowed in a child custody battle?

How many back and forth claims and counterclaims are allowed in a child custody battle?

Here’s one way to count (I’ll use the jurisdiction where I practice divorce and family law (Utah) as an example):

A child custody case (whether that be a divorce, a paternity action, or just a custody case) is commenced with a complaint or a petition filed with the court.

The response to a complaint or petition can be made by an answer or “answer and counterclaim”. The difference between an answer and an “answer and counterclaim” is that an an answer is a respondent’s first pleading that usually consists of denying the petitioner’s allegations and articulating the defendant’s defenses (Black’s Law Dictionary (11th ed. 2019)). An answer and counterclaim consists of an answer, plus a claim for relief against the petitioner (also termed counter petition, counteraction, or countersuit) (Id.).

The “reply” is the petitioner’s response to the respondent’s counterclaim. It usually consists of denying the respondent’s counterclaim allegations and articulating the petitioner’s defenses to the counterclaim.

And that’s the limit: 1) complaint or petition; 2) answer or answer and counterclaim. And if a counterclaim is filed, it is followed by 3) a reply to the counterclaim. You can’t file anything else as a means of asserting a cause of action, UNLESS you file (assuming you are allowed to file) an “amended” complaint/petition, answer, counterclaim, or reply.

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

https://www.quora.com/How-many-back-and-forth-claims-and-counterclaims-are-allowed-in-a-child-custody-battle/answer/Eric-Johnson-311

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Retirement now a potential ground for modifying alimony

Retirement now a potential ground for modifying alimony award

In the 2020 legislative session the Utah State legislature amended the Utah Code to provide that “regardless of whether a party’s retirement is foreseeable, the party’s retirement is a substantial material change in circumstances that is subject to a petition to modify alimony, unless the divorce decree expressly states otherwise.” Previous to the passing of this amendment the law in the state of Utah was that because retirement was a foreseeable event at the time of divorce and because foreseeable events are not a basis for seeking a modification of alimony retirement thus was not a triggering event for modifying or terminating alimony. But with this amendment (found in Utah Code § 30-3-5(10)(b)), that is no longer the case. This does not mean that retirement automatically entitles an alimony payor—or payee—to have the alimony obligation modified up or down, but it does now allow retirement to be raised as a basis for modifying or terminating alimony whereas up until now it could not.

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

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LeFevre v. Mackelprang – 2019 UT App 42 – joint custody analysis

2019 UT App 42 – THE UTAH COURT OF APPEALS – LeFevre v. Mackelprang

AMELIA GAYATREE LEFEVRE,
Appellee,
v.
CASEY LEE MACKELPRANG,
Appellant.

Opinion No. 20171006-CA
Filed March 28, 2019

Sixth District Court, Panguitch Department
The Honorable Paul D. Lyman No. 154600028

Van Mackelprang and Julie J. Nelson, Attorneys for Appellant
Douglas L. Neeley, Attorney for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and KATE APPLEBY concurred.

HARRIS, Judge:

¶1 Casey Lee Mackelprang (Father) asked the trial court to modify the governing divorce decree (the Decree) to install him as the primary custodial parent or, at least, change the parenttime schedule to increase the number of nights his daughter (Child) spent at his house. After a trial, the court denied his request, and in addition ordered him to pay the full cost of a custody evaluation. Father now asks us to review the trial court’s conclusions, and we agree with Father that those conclusions were infirm. Accordingly, we vacate the trial court’s order and remand the case for further proceedings.

BACKGROUND

¶2 After nearly six years of marriage, Father and Amelia Gayatree LeFevre (Mother) divorced in August 2014. They had one child—Child—together, who was five years old at the time of the parties’ divorce.

¶3 For the first few years of their marriage, the couple lived in Cedar City, Utah with Child, who had some medical issues and required extra attention. According to Mother, she provided nearly all care for Child during this time period, even though she was taking classes at a university, and even though Father was not employed full-time. She maintained that Father often refused to help with child care, and when she needed someone to care for Child so that she could attend classes, she found it necessary to call upon her sister, her parents, and even a few friends, because Father was unwilling to do so himself. By the time Child was three, Father had never spent a night alone with Child and was not comfortable doing so.

¶4 Mother and Father separated in April 2012. At that point, both Mother and Father left Cedar City to live with family: Mother and Child moved to Boulder, Utah, and Father moved to Kanab, Utah. A few months later, however, in the late summer of 2012, Mother returned to Cedar City to begin work on a master’s degree. Father also soon returned to Cedar City, but the parties lived in separate residences. At that point, while Mother continued to act as Child’s primary caregiver, the parties worked out an informal parent-time arrangement in which Mother would take Child over to see Father on occasion but, because Father was still not entirely comfortable with caring for Child on his own, Mother was often present during these visits. Most of these visits were daytime visits for a few hours, although Father did care for Child overnight on a handful of occasions.

¶5          Mother filed for divorce in August 2012 and, in September 2013, the parties entered into a stipulated settlement agreement that designated Mother as Child’s primary physical custodian. The agreement ordered parent-time for Father every other weekend and every other Wednesday evening, a schedule that (although it did not mention the statute) was similar to the one set forth in Utah Code section 30-3-35. Nearly a year later, in August 2014, the trial court signed the Decree, incorporating the parties’ agreed-upon custody and parent-time arrangement.

¶6 During this period, Father and Mother each lived in Cedar City during the week, but on most weekends Mother traveled to Boulder to visit family and to work. Mother always took Child with her to Boulder for the weekends, even on the alternating weekends on which Father would have otherwise been entitled to parent-time, and at the time Father voiced no objection. Father also was not in the habit of exercising the regular mid-week visits to which he was entitled, instead depending on Mother to bring Child over to his house for many short weekday visits as her class schedule allowed. And Father did not exercise his right to a multi-week summertime visit in 2014, even though the stipulation entitled him to do so.

¶7 After nearly three years in Cedar City, Mother and Child moved back to Boulder in April 2015, and at this point Father began to regularly exercise the weekend parent-time and the multi-week summertime visits to which the Decree entitled him. Although Father did not exercise his mid-week visits due to the distance between Cedar City and Boulder, he began to make significant efforts to travel to Boulder to participate in important events in Child’s life, such as school programs and dance competitions, even when such events did not occur during his weekend. After a while, Father was of the view that things were going so well with his parent-time that he asked Mother if she would agree to increasing the number of overnights he had with Child, but Mother did not agree.

¶8 In November 2015, Father filed a petition to modify the Decree, requesting that the court alter the custody arrangement to designate him, rather than Mother, as the primary physical custodian. In the petition, among other things, Father argued that a modification was warranted because Mother’s move to Boulder in April 2015 constituted a substantial and material change in circumstances because Father was no longer able to see Child as often as he had when Mother was living in Cedar City. Father also argued that Mother was not spending a substantial amount of her parent-time with Child because she was working two jobs that required her to leave Child in the primary care of Child’s maternal grandmother. Mother opposed Father’s petition, and eventually filed a counter-petition requesting that the Decree be modified to remove redundant material, clarify issues, and make minor alterations to the parent-time schedule.

¶9 In November 2016, while the competing petitions were pending, Mother notified Father that she intended to relocate with Child to Las Vegas, Nevada. Mother proposed that the parties continue to follow the parent-time schedule set forth in the Decree until her move, at which point they should adopt the parent-time schedule found in Utah Code section 30-3-37(6). Father opposed Mother’s request, and asked the court to hold a hearing to consider Mother’s proposed move. Father also asked the court to appoint a custody evaluator to assess the parties’ situation, a request Mother opposed on the ground that no such evaluation was necessary. Mother argued, in the alternative, that if the court did appoint an evaluator, it should order Father to pay all costs associated with the evaluation.

¶10 In early February 2017, Mother and Child relocated to Las Vegas. Shortly thereafter, the court appointed a custody evaluator (Evaluator) and ordered Father to front the costs associated with the appointment, but stated that it would make a final allocation of costs at a later date. The court also postponed any hearing on Mother’s relocation to Las Vegas until after the completion of the custody evaluation. Around this same time, in early 2017, in addition to regularly exercising his weekend and summertime parent-time—which he had been doing since April 2015—Father began to travel to Las Vegas once a week to exercise regular mid-week parent-time with Child.

¶11 Over the next few months, Evaluator conducted a number of interviews with Father, Mother, and Child, as well as home studies during which she observed Child. On November 1, 2017, Evaluator issued her report, in which she recommended—with one important qualification—that the status quo should continue, with Mother acting as the primary residential parent and with Father exercising parent-time on alternating weekends and Wednesdays during the school year. The important qualification was that, if Father were to move to Las Vegas so as to be geographically closer to Mother and Child, she would alter her recommendation and urge the court to adopt the alternative parent-time schedule specified in Utah Code section 30-3-35.1 (section 35.1), which would result in Father having the right to five overnights (instead of two) in every two-week period.

¶12 After learning of Evaluator’s recommendations, Father almost immediately moved to Las Vegas.[1] Just a few weeks later, in mid-November 2017, the court held a trial on the competing petitions to modify. Evaluator testified about her report and evaluation, and recommended that, because Father had relocated to Las Vegas, the court should implement a custody and parent-time arrangement based on section 35.1. She opined that adopting section 35.1 would have a positive impact on Child and the proposed schedule would not hurt the bond Child has with Mother, but would strengthen the bond Child has with Father by providing Child an opportunity to develop a structure and routine with him during the additional mid-week and weekend overnights. Evaluator further opined that the proposed schedule would help reduce communication problems the parties had been experiencing under the current schedule because drop-offs during the school year would occur at school. She also offered her observation that Father was a good parent who since April 2015 had made significant efforts to spend quality time with Child, and opined that Father’s parenting actions over the past two-and-a-half years were more relevant than his actions during the first six years of Child’s life.

¶13 Evaluator also recommended that Father’s summertime parent-time should occur in one large block to reduce both the number of transitions between the parents as well as the amount of time Child spends in the car traveling back and forth from Las Vegas to Utah. Finally, in an effort to reduce the frequency of Father’s requests for virtual parent-time, Evaluator recommended that Father’s video or phone chats with Child should be held at scheduled times three days per week, and that the parties’ email communications regarding Child be restricted to a particular day per week to facilitate more predictable and reliable communication.

¶14 At the conclusion of the trial, and after hearing directly from both Father and Mother, the trial court took the matter under advisement. A few days later, the court issued a written ruling on the petitions to modify, making a few changes to the parties’ Decree. Among other alterations, the court ordered that Father’s summertime parent-time be exercised in one large block and that Father exercise virtual parent-time only during three half-hour periods scheduled during the week. The court denied all of Father’s other requests to alter the custody and parent-time schedule, including Father’s request that parent-time during the school year be implemented according to section 35.1.

¶15 On that point, the court determined that the four prerequisites for implementation of the section 35.1 schedule were not met, and made factual findings in support of that conclusion, including the following: that Father “did not participate actively in [Child’s] life until the last couple of years”; that Father’s “plan to accomplish effective communication is to have a designated email answering day per week” and that Father’s “plan . . . does not appear to be adequate”; and that Father “presented no evidence other than his hope” that increased parent-time would be in Child’s best interest. From these findings, the court made legal conclusions that Father “has not adequately been involved in [Child’s] life”; that Father “has failed to present a plan to accomplish effective communication”; and that Father “has failed to present evidence that it will be in [Child’s] best interest to have increased overnight visits.” Because it considered the statutory prerequisites unsatisfied, the trial court declined Father’s invitation to award him additional parent-time under section 35.1.

¶16 The court also ordered Father to pay all costs related to Evaluator’s report. Although it did not provide reasons for its decision, it did note that Father “asked for the child custody evaluation with the hope that somehow it would find in his favor and it did not, so he should pay its entire cost.”

ISSUES AND STANDARDS OF REVIEW

¶17 Father now appeals the trial court’s ruling on his petition to modify, and asks us to review two aspects of that ruling. Father’s main complaint is with the court’s decision not to implement a parent-time arrangement based on section 35.1. We review a trial court’s custody and parent-time determination for abuse of discretion, and review any underlying factual findings for clear error. See Vaughan v. Romander, 2015 UT App 244, ¶¶ 7– 8, 360 P.3d 761. “A finding is clearly erroneous only if the finding is without adequate evidentiary support or induced by an erroneous view of the law.” Hale v. Big H Const., Inc., 2012 UT App 283, ¶ 9, 288 P.3d 1046 (quotation simplified).

¶18 Second, Father argues that the trial court abused its discretion in ordering him to pay the entire cost of the custody evaluation. When reviewing a court’s decision to allocate costs pursuant to Utah Code section 30-3-3, “we use an abuse of discretion standard.” Peterson v. Peterson, 818 P.2d 1305, 1310 (Utah Ct. App. 1991).

ANALYSIS

I

¶19 The main issue presented on appeal is whether the trial court erred by concluding that the statutory prerequisites set forth in Utah Code section 30-3-35.1(2) were not met. We find infirmities in the trial court’s conclusions, and therefore determine that remand is necessary.

¶20 “In all custody determinations, the [trial] court’s primary focus must be on the best interests of the child.” Pingree v. Pingree, 2015 UT App 302, ¶ 7, 365 P.3d 713 (quotation simplified). Our legislature has determined that each divorced parent “is entitled to and responsible for frequent, meaningful, and continuing access with the parent’s child consistent with the child’s best interests.” Utah Code Ann. § 30-3-32(2)(b)(ii) (LexisNexis Supp. 2018). Relevant statutes prescribe a default minimum parent-time schedule “to which the noncustodial parent and the child shall be entitled,” id. § 30-3-35(2), unless either (a) “the court determines that Section 30-3-35.1 should apply” or (b) a parent can establish “that more or less parenttime should be awarded,” id. § 30-3-34(2). Under the default minimum parent-time schedule set forth in section 30-3-35, “the noncustodial parent is entitled to parent-time with the child during one weekday evening and on alternating weekends, which include Friday and Saturday overnights.” Lay v. Lay, 2018 UT App 137, ¶ 6, 427 P.3d 1221. This default statutory schedule affords the noncustodial parent two overnights in a typical twoweek period, and approximately ninety overnights during a typical calendar year (after holiday and summertime parent-time are accounted for).

¶21 As noted above, section 35.1 “provides an alternative statutory parent-time schedule” that—by extending weekend overnights by one night, and affording one weeknight overnight each week—offers the noncustodial parent the opportunity to enjoy five overnights in every two-week period, resulting in approximately 145 overnights in a typical calendar year See id. ¶ 7; see also Utah Code Ann. § 30-3-35.1(1)(a) (stating that the alternative schedule “is 145 overnights”).

¶22 A trial court may implement the alternative section 35.1 schedule only if “the parties agree or the noncustodial parent can demonstrate” the presence of at least four[2] factual circumstances: (a) that “the noncustodial parent has been actively involved in the child’s life”; (b) that either (i) “the parties are able to communicate effectively regarding the child,” or (ii) “the noncustodial parent has a plan to accomplish effective communications regarding the child”; (c) that “the noncustodial parent has the ability to facilitate the increased parent-time”; and (d) that “the increased parent-time would be in the best interest of the child.” Utah Code Ann. § 30-3-35.1(2). If all four of these elements are present, then the trial court may—but is not required to—implement the parent-time schedule set forth in section 35.1. See id. (stating that “the court may consider” the alternative schedule if the required factual elements are present); see also Lay, 2018 UT App 137, ¶ 13 (stating that “the noncustodial parent’s demonstration of the enumerated factors gives the court the discretion to consider the increased parenttime schedule, but there is no language in the statute making the court’s consideration of that schedule—much less its adoption— mandatory”).

¶23 In this case, the trial court determined that three of the four statutory prerequisites were not present, and therefore decided not to alter the parties’ parent-time arrangement to afford Father additional parent-time.[3]  Father argues that the trial court’s determination is incorrect, and that all of the necessary prerequisites were in fact present on the facts presented at trial. In the discussion that follows, we examine each of the three remaining statutory prerequisites and, for the reasons set forth, we agree with Father that the trial court’s analysis was infirm.

A

¶24 The first of the three statutory requirements is that “the noncustodial parent has been actively involved in the child’s life.” Utah Code Ann. § 30-3-35.1(2)(a) (LexisNexis Supp. 2018). Father contends that he presented evidence conclusively demonstrating his active involvement in Child’s life. We agree.

¶25 At the outset of the discussion, it is important to note that the trial court did not actually make a finding or a conclusion to the contrary. The court’s specific finding was that Father “did not participate actively in [Child’s] life until the last couple of years,” implying that Father did participate actively in Child’s life during the “couple of years” prior to trial. (Emphasis added.) Indeed, the evidence presented to the court was overwhelming that, starting in approximately April 2015, Father exercised regular weekend and summertime parent-time according to the ordered schedule, and that he made extra effort as necessary to attend Child’s school functions and other celebrations in her life, even when those occurred outside his customary scheduled parent-time.

¶26 From this evidence, however, the trial court concluded that Father “has not adequately been involved in” Child’s life. In our view, this conclusion is not supported by the evidence presented, and is in any event not the conclusion required by the statute. Indeed, the word “adequately” does not appear in the statute, which instead asks the court to determine whether Father has been “actively” involved in Child’s life. See id. As noted above, at least for the thirty months prior to trial, Father was actively involved in Child’s life, as the trial court impliedly found.[4]

¶27 The only sensible explanation for the trial court’s conclusion is that the court was looking primarily at Father’s actions during the first six years of Child’s life, a period in which Father was not nearly as involved in Child’s life as he was during the thirty months leading up to trial. The relevant statute does not indicate whether a court should weigh recent behavior more heavily, and we certainly acknowledge that a parent who—in true “deathbed repentance” fashion—has been active in his child’s life for only a few days or weeks before trial may comfortably be considered to have not been actively involved in his or her child’s life, when that life is examined as a whole. But a parent who has—even in the eyes of his ex-spouse—been actively involved in his daughter’s life for the thirty-month period leading up to trial has clearly been “actively involved” in her life, and any finding or conclusion to the contrary is clearly erroneous and an abuse of discretion.

¶28 Accordingly, we agree with Father that he satisfied the first statutory prerequisite.

B

¶29 Next, the statute requires that Father demonstrate either (i) that “the parties are able to communicate effectively regarding the child,” or (ii) that he “has a plan to accomplish effective communications regarding the child.” Utah Code Ann. § 30-3-35.1(2)(b) (LexisNexis Supp. 2018). The trial court found that “[t]here is little meaningful communication between the parties,” and concluded that “[t]he parties do not communicate effectively.” Father does not challenge these determinations, and thereby concedes that he cannot meet the first statutory alternative. However, Father asserts that he presented a plan to address the parties’ communication issues, and argues that he can therefore meet the second statutory alternative. We agree.

¶30 The relevant statute requires only that Father present a plan for improved communication to the court; it does not require that Father’s plan be foolproof or even that Father’s plan—or any part of it—be adopted by the court. The statutory language requires only that the parent present a “plan to accomplish effective communication,” see id. § 30-3-35.1(2)(b), and Father did so here.

¶31 At trial, Father adopted and advocated for the communication plan recommended by Evaluator, which included several features designed to address the communication problems that the parties were experiencing. Among those were (a) limiting email communication between the parties to a “designated email day” on which both parents would be available to electronically express and respond to concerns regarding Child; (b) limiting Father’s virtual parenttime to three designated half-hour periods scheduled throughout the week, thereby limiting any ad hoc demands Father might make to speak with Child; and (c) maximizing the number of pickups and drop-offs that would occur at Child’s school rather than at Mother’s residence, thereby reducing the number of times Mother and Father saw each other.

¶32 The trial court ended up adopting one of these three recommendations in its ruling, in that it limited Father’s virtual parent-time to three scheduled half-hour periods each week. The court did not adopt the other two parts of this plan, perhaps in part because Mother expressed dislike for the “designated email day” idea, but the fact that the court declined to adopt Father’s plan in total does not mean that he did not have one. Indeed, the trial court itself referred to “[Father’s] plan” in its findings, later judging that plan to be inadequate. But an inadequate plan is still a plan, and the statute imposes no requirement that the plan be found by the court to be adequate. See id.

¶33 Under these circumstances, the trial court abused its discretion by concluding that Father “failed to present a plan to accomplish effective communication.” Father presented a plan for improved communication to the trial court, and thereby satisfied the second statutory prerequisite.

C

¶34 Finally, the statute requires that implementation of the alternative parent-time schedule would be “in the best interest of the child.” Utah Code Ann. § 30-3-35.1(2)(d) (LexisNexis Supp. 2018). Ordinarily, we afford a high degree of deference to a trial court’s “best interest” determination. See Vaughan v. Romander, 2015 UT App 244, ¶ 8, 360 P.3d 761 (stating that a trial court “has the discretion to establish parent-time in the best interests of the children,” and that a trial court’s “parent-time order” is reviewed for abuse of discretion (quotation simplified)). But here, the trial court did not engage in a traditional “best interest” analysis by weighing the evidence presented by each side and coming to a decision. Instead, the trial court stated flatly that Father had “presented no evidence other than his hope” that increased parent-time would benefit Child, and concluded that Father “failed to present evidence that it will be in [Child’s] best interest to have increased overnight visits.”

¶35 These statements are simply incorrect. Father presented quite a bit of evidence supporting his view that increased parenttime would be in Child’s best interest. Most significantly, Father presented the expert testimony of Evaluator, who offered her reasoned professional opinion that the best thing for Child— now that Father had relocated to Las Vegas and was closer to Mother and Child—would be for the court to implement the alternative parent-time schedule set forth in section 35.1. In addition, Father offered his own testimony along those same lines, and even cajoled Mother into acknowledging that Father was “a good father” and that she was in favor of Father and Child spending more time together (with the proviso that she preferred that the extra parent-time take place in the summertime, to cut down on the number of exchanges during the school year).

¶36 The trial court was certainly free to decline to credit Father’s evidence, and to give it less weight than Mother’s evidence.[5] Had it done so here, and articulated supported reasons for its decision, we undoubtedly would have affirmed that determination. But a trial court is not free to completely ignore a litigant’s evidence by making a “finding” that there is no such evidence when in fact there is.

¶37 Under these unique circumstances, we are not yet able to determine whether Father can (or cannot) satisfy the fourth statutory prerequisite. But the trial court’s stated reasons for rejecting Father’s position are unsupported, and are clearly erroneous and an abuse of discretion. We therefore must remand the case for further proceedings on this point, and specifically for the trial court to consider all of the evidence presented and to make a determination as to whether increased parent-time as per section 35.1 would be in Child’s best interest. Because all of the other prerequisites are met, if the trial court finds, on remand, that the “best interest” prerequisite is also met, the trial court will then be permitted to exercise its discretion, if it so chooses, to implement the alternative parent-time schedule. See Utah Code Ann. § 30-3-35.1(2) (stating that, if the statutory prerequisites are met, the court “may consider” the increased parent-time schedule); see also Lay v. Lay, 2018 UT App 137, ¶ 13, 427 P.3d 1221. (stating that, even where all of the statutory prerequisites are met, a trial court is not required to implement the alternative schedule, but may do so in its discretion).

II

¶38 The second issue Father raises on appeal is whether the trial court abused its discretion in ordering him to pay the entire cost of Evaluator’s report. In a case like this one, in which one party brings an action to establish an order of custody or parenttime, the trial court is statutorily authorized to make an award of costs. See Utah Code Ann. § 30-3-3(1) (LexisNexis 2013) (stating that “in any action to establish an order of custody [or] parenttime, . . . the court may order a party to pay the costs, . . . including expert witness fees, of the other party to enable the other party to prosecute or defend the action”). We have previously recognized that the relevant statute “is worded so as to afford divorce litigants a broader award of reimbursement, if need be, for the expenses of litigation, than those reimbursements authorized in other civil cases” in which costs are allocated according to who prevailed. Peterson v. Peterson, 818 P.2d 1305, 1310 (Utah Ct. App. 1991) (quotation simplified).[6]  This rule is particularly appropriate in family law cases where many of the costs, including the cost of custody evaluations, relate to the best interests of the child and enable the court to make a reasoned determination on these important issues. See id.

¶39 While section 30-3-3(1) “empowers a court to use its sound discretion in determining whether to award costs based on need and ability to pay,” id., “the award or denial of such fees must be based on evidence of the financial need of the receiving spouse, the ability of the other spouse to pay, and the reasonableness of the requested fees,” Wilde v. Wilde, 969 P.2d 438, 444 (Utah Ct. App. 1998) (quotation simplified). “Failure to consider these factors is grounds for reversal on the fee issue.” Id.

¶40 Here, the trial court ordered each party to pay their own attorney fees and costs, but ordered Father to pay the entire cost of the custody evaluation. However, there is no indication in the court’s order that it considered the factors identified in Wilde, see id., including the parties’ financial ability to pay; indeed, the court gave no reasons at all for its decision to require Father to pay the entire cost of Evaluator’s report, other than to note that Father “asked for the child custody evaluation with the hope that somehow it would find in his favor and it did not, so he should pay its entire cost.”[7]

¶41 This conclusion is both inaccurate and contrary to the governing statute. Although Evaluator did not recommend that primary physical custody be changed from Mother to Father, Evaluator did recommend that Father be awarded additional parent-time if he moved to Las Vegas, which he did prior to trial. Accordingly, Evaluator’s recommendation at trial was that a parent-time schedule in accordance with section 35.1 should be implemented, which recommendation was in line with Father’s ultimate request at trial. In addition, the court’s conclusion that Father should pay the entire cost of the custody evaluation because the evaluation did not “find in his favor” is inconsistent with a proper subsection (1) analysis. As discussed above, while subsection (1) gives the trial court discretion in determining whether to award the costs of expert witness fees, an award of such fees must be based upon the parties’ ability to pay and the reasonableness of the fees, and not upon which party ultimately prevails. See Utah Code Ann. § 30-3-3(1); Wilde, 969 P.2d at 444. But instead of applying these factors, see Wilde, 969 P.2d at 444, the trial court appears to have erroneously allocated the cost of the custody evaluation by applying the “substantially prevailed” standard found in subsection (2), which is applicable only in actions to enforce—but not to establish—custody or parent-time arrangements, see Utah Code Ann. § 30-3-3(2).

¶42 Here, there is no indication that the trial court considered the appropriate factors. The absence of any such findings prevents a meaningful review of the trial court’s ruling, and we therefore remand the issue for further analysis. See Wilde, 969 P.2d at 444 (remanding the issue of fees and costs for reconsideration in light of the trial court’s failure to consider the needs of the parties and their ability to pay).

CONCLUSION

¶43 The trial court incorrectly—and prematurely—concluded that the statutory prerequisites to considering the section 35.1 parent-time schedule were not met in this case. The first three statutory prerequisites were in fact met, and the trial court’s ruling to the contrary was clearly erroneous. Also, the court incorrectly found that Father had submitted “no evidence” in his favor with regard to the fourth prerequisite. In addition, the trial court’s decision to order Father to pay all costs associated with Evaluator’s report appears to have been grounded in an inaccurate factual assumption as well as made pursuant to the incorrect statutory subsection. The trial court’s ruling with regard to parent-time and costs is hereby vacated, and this matter is remanded for further proceedings consistent with this opinion.

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

[1] Neither party contests the trial court’s continuing exercise of jurisdiction over this case, even after both parties relocated to Nevada. See Utah Code Ann. §§ 78B-13-201(1), 202, 207 (LexisNexis 2018); see also In re S.W., 2017 UT 37, ¶ 10, 424 P.3d 7 (noting that a court that originally has exclusive and continuing jurisdiction over a child custody matter may dismiss a case on jurisdictional grounds if it finds, after certain criteria are met, that it is “an inconvenient forum,” but may do so “only once a child custody proceeding has been commenced in another state” (quotation simplified)). Even if we were to assume that the statutory criteria are met here given both parents’ relocation, see Utah Code Ann. § 78B-13-202(1)(b), the trial court made no finding that it was an inconvenient forum, and there is no indication, on the record before us, that any child custody proceeding involving these parties has been initiated in Nevada.

[2] The statutory list of elements is not intended to be exhaustive. Indeed, the statute itself proclaims that the court may take into account “any other factor the court considers relevant.” Utah Code Ann. § 30-3-35.1(2)(e) (LexisNexis Supp. 2018).

[3] All parties, as well as the trial court, agreed that Father has the ability to facilitate the increased parent-time, and that therefore the third statutory prerequisite is satisfied. See id. § 30-335.1(2)(c).

[4] Subsection (3) of section 35.1 provides factors that courts “shall consider” in determining whether a parent has been actively involved in a child’s life. See id. § 30-3-35.1(3). Those factors include whether the parent has “demonstrated responsibility in caring for the child”; whether the parent has “involvement in day care”; whether the parent has a “presence or volunteer efforts in the child’s school and at extracurricular activities”; whether the parent assists the child with homework, and whether the parent is involved in “preparation of meals, bath time, and bedtime for the child”; and whether the parent has a strong bond with the child. Id. In this case, the trial court’s findings reveal no effort to apply these factors. In any event, as noted, the evidence clearly supports the conclusion that these factors weigh in favor of Father, at least for the thirty-month period prior to trial: Father had a strong bond with Child, demonstrated responsibility for Child’s care, and had a presence at Child’s extracurricular and school activities.

[5] But if a trial court declines to adopt the recommendation of a custody evaluator, “the court is expected to articulate some reason for rejecting that recommendation.” Zavala v. Zavala, 2016 UT App 6, ¶ 44, 366 P.3d 422 (quotation simplified).

[6] This standard also differs from the standard for awarding costs and fees in actions brought “to enforce” an alreadyestablished order in a domestic case. See Utah Code Ann. § 30-3-3(2) (LexisNexis 2013). In enforcement cases, the standard is similar to the one ordinarily used in civil cases: courts are authorized to award fees to “the party [that] substantially prevailed upon the claim or defense.” Id. In such cases, a trial court “may disregard the financial need of the moving party” because awards under this subsection “serve no equalizing function but allow the moving party to collect fees unnecessarily incurred due to the other party’s recalcitrance.” Connell v. Connell, 2010 UT App 139, ¶¶ 28, 30, 233 P.3d 836 (quotation simplified). Thus, the “guiding factor” when awarding costs under subsection (2) is “whether the party seeking an award of fees substantially prevailed on the claim [or defense].” Id. ¶ 28.

[7] We do not mean to suggest that a court, when deciding how to allocate the costs of a custody evaluation, is forbidden from taking into account the identity of the party who asked for the evaluator to be appointed. In many cases, potentially including this one, that fact might be relevant to any determination about whether the costs are “reasonable.” See Wilde v. Wilde, 969 P.2d 438, 444 (Utah Ct. App. 1998). In appropriate cases, a court may even condition the grant of a motion to appoint a custody evaluator upon the movant paying the entire cost of the evaluation. In this case, however, that does not appear to be what the trial court did.

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