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

2023 UT App 95

THE UTAH COURT OF APPEALS

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

A PERSON UNDER EIGHTEEN YEARS OF AGE.

A.M.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20220624-CA

Filed August 24, 2023

Second District Juvenile Court, Ogden Department

The Honorable Jeffrey J. Noland

No. 1140984

Emily Adams, Sara Pfrommer, and Hannah K.

Leavitt-Howell, Attorneys for Appellant

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

Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

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

 

CHRISTIANSEN FORSTER, Judge:

 

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

BACKGROUND[1]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ISSUES AND STANDARDS OF REVIEW

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

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

ANALYSIS

I. Reunification Services

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

II. Strictly Necessary

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

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

¶34      When evaluating whether termination is strictly necessary,

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

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

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

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

CONCLUSION

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


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

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

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

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

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

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

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

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

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

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

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

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McQuarrie v. McQuarrie – 2021 UT 22 – termination of continuation of alimony

MCQUARRIE v. MCQUARRIE – 2021 UT 22

In the Supreme Court of Utah.

Melvin C. MCQUARRIE, Appellant,

v.

Janette Colledge MCQUARRIE aka Janette Kendall, Appellee.

No. 20190902-SC

Heard March 5, 2021

Filed June 17, 2021

 

On Petition for Writ of Certiorari to the Utah Court of Appeals

Third District, Salt Lake

Honorable Robert P. Faust

No. 084904419

Attorneys:

Julie J. Nelson, Erin B. Hull, James A. McIntyre, Richard R.

Golden, Salt Lake City, for appellant

David L. Arrington, Douglas B. Thayer, Melinda H. Birrell, Lehi,

for appellee

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in

which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE

AND JUSTICE PETERSEN joined

Associate Chief Justice Lee, opinion of the Court:

*1 ¶1 As a general rule, a stipulated divorce decree is interpreted in accordance with the law of contract interpretation—with the goal of discerning the intentions of the parties, as reflected in the ordinary meaning of the terms of the decree as a whole. But that general rule is subject to a specific statutory exception. If a divorce decree calls for payment of alimony, the payment is presumed to terminate upon remarriage of the receiving spouse, and the presumption is rebutted only if the divorce decree “specifically provides otherwise.” Utah Code § 30-3-5(9) (2015).

¶2 As the district court and the court of appeals in this case noted, the divorce decree at issue included provisions that, taken as a whole, could be interpreted to suggest that the parties contemplated that alimony would continue upon remarriage. But that is insufficient. Under the above-quoted statute as interpreted in our case law, the presumption that alimony terminates upon remarriage is rebutted only by a “specific[ ]” alimony provision that expressly “provides otherwise.” There was no such specific, express provision in the decree at issue here. And we reverse the decision of the court of appeals on that basis.

I.

¶3 Melvin McQuarrie and Janette Colledge McQuarrie (now known as Janette Kendall) married in 1980 and divorced in 2008. The district court entered a divorce decree detailing the terms of their mediated stipulation for divorce.

¶4 Under paragraphs 9 and 10 of the stipulated decree, Melvin1 was required to pay alimony to Janette in two phases. First, during the period in which Melvin was required to pay child support, he was required to make a $2,000 monthly alimony payment (subject to cost-of-living increases) “until the first of any of the following occurrences: a. [Melvin’s] death; or b. [Janette’s] death.” Second, after the child support obligation ended, Melvin was required to make an increased alimony payment to Janette “until the first of any of the following occurrences: c. [Melvin’s] death; d. The expiration of 372 months from the signing of the decree of divorce; or e. [Janette’s] death.”

¶5 The alimony provisions of the decree do not explicitly address the effect of Janette’s remarriage. But other provisions of the decree do refer to the possibility of her remarriage, either expressly or by implication.

¶6 In paragraph 11, the decree requires Melvin to pay $1 million to an annuity underwriter of Janette’s choice, with Janette “irrevocably designated as the beneficiary of the annuity during her lifetime with the power to designate any blood relative as the beneficiary of any death benefit provided by the annuity.” The power to designate a beneficiary of a death benefit is expressly limited, however. “[I]n the event [Janette] remarries, she may not designate her spouse or his children as beneficiaries, even if she were to adopt them.” The expressed “intention of the parties” was “that the annuity is solely for the benefit of [Janette] and no one else.” It was “anticipated that the annuity [would] provide a stream of income to [Janette] for her lifetime sufficient to supplement what [Melvin] pays as alimony.”

¶7 A footnote to the annuity provision states that Janette is “ordered to be responsible for her utilities, maintenance, taxes and insurance on the marital home” (which was awarded to Janette) after she “is eligible to receive the annuity.” It also provides for a meeting, to be held every three years, to allow the parties “to review their respective standard of living” and to make any necessary “upward” adjustment of “alimony beyond the” Consumer Price Index. “The standard of living [was] ordered to be equal.” And the meeting was aimed at facilitating an exchange of information of relevance to the assessment and equalization of the parties’ standard of living. Each party was required “to update any new documentation to the mediation binder, including new property holdings/assets, increased earnings, bonuses, and/or royalties, and business to debt ratio.” Melvin and Janette were to meet “without spouses or attorneys,” but “if necessary,” they could “agree upon a mediator” to be present.

¶8 The decree also makes reference to remarriage in a few provisions addressing division of property. It states that Melvin is required to “pay the first deed of trust” on the marital home and to pay for “utilities, lawn care, snow removal, upkeep, maintenance, [and] a housekeeper” for the home, while providing that Melvin is relieved of the latter responsibilities (but not the payment of the first deed of trust) if Janette remarries. It also requires Melvin to purchase or lease a car for Janette every five years, but provides that that obligation ceases if Janette remarries. And it orders Melvin and Janette to “enter into a prenuptial agreement prior to any remarriage,” while prohibiting them from divesting assets to future spouses and restraining them from disclosing the terms of the decree to such spouses.

¶9 Janette remarried in 2014. Later that year, she filed a petition to modify the divorce decree, asserting that Melvin had defrauded her in failing to disclose certain assets and misrepresenting the value of the marital home. She also filed a motion seeking to have Melvin held in contempt for failing to make certain payments required under the decree.

¶10 Melvin filed a counter-petition to modify the decree. In the counter-petition, Melvin asserted that Janette’s remarriage constituted a “substantial and material change in the parties’ circumstances” justifying a termination of the alimony obligation. Citing Utah Code section 30-3-5(9) (2015), Melvin contended that the alimony obligation terminated as a matter of law upon Janette’s remarriage because the decree did not “specifically provide” that alimony would continue after her remarriage.

¶11 The district court denied both parties’ motions. In denying Melvin’s motion, the court considered “all the language in” the decree and concluded that the alimony provisions “were not something that would be terminated or eliminated based upon the remarriage” of Janette. And it held that the decree “language specifically provides that the alimony/child support payments would continue beyond remarriage and were structured to provide the appropriate division of the marital assets” to Janette.

¶12 Melvin challenged that decision on appeal, again citing Utah Code section 30-3-5(9) (2015) and again asserting that his alimony obligation terminated because the divorce decree did not “specifically provide” that the alimony payment was to continue after Janette’s remarriage. The court of appeals affirmed. See McQuarrie v. McQuarrie, 2019 UT App 147, 450 P.3d 1133. It acknowledged that “[a]limony is presumed to terminate upon the remarriage of the receiving spouse” and noted that this presumption “is now codified in” Utah Code section 30-3-5(9) (2015). Id. ¶ 28 (citation omitted). But it did not elaborate on the requirement of a decree provision that “specifically provides” that alimony payments are to continue after remarriage. Like the district court, it turned instead to the terms of the decree “as a whole.” Id. ¶ 31. And it stated that its role was to “ascertain the intentions of the parties” to the decree with regard to the payment of alimony. Id. ¶ 29 (citation omitted). Citing not just the alimony provisions but the terms of other provisions of the divorce decree, the court of appeals concluded that the decree “specifically provides that alimony would survive Janette’s remarriage.” Id. ¶ 31.

¶13 The court noted that the decree provided that Melvin’s obligation to provide a car allowance and to pay certain household expenses would terminate upon Janette’s remarriage. Id. It also credited the footnote calling for a meeting between the parties to review their standard of living and make any necessary adjustment to alimony payments—noting that that provision prohibited the attendance of the parties’ “spouses,” which the court viewed as an acknowledgement of the possibility that both Melvin and Janette might have remarried at a time when they would be meeting to discuss an adjustment to alimony payments. Id. ¶ 33. And it cited other provisions of the decree referring to the possibility of Janette’s remarriage—including the prohibition on naming a future spouse as beneficiary of the annuity and the requirement that Melvin continue to pay the mortgage on Janette’s home even if she were to remarry. Id. ¶ 35.

¶14 As to the alimony provisions themselves, the court of appeals noted that they identified Janette’s death, but not her remarriage, as an event that would terminate the alimony payment. In the court of appeals’ view, these provisions would be “meaningless” if they were interpreted to allow for termination of alimony upon Janette’s remarriage. Id. ¶ 32.

¶15 On these grounds, the court of appeals concluded that “the parties considered Janette’s potential remarriage and specifically agreed on how that event would affect their respective rights and obligations” under the decree. Id. ¶ 35. It held that “the only ‘reasonable’ interpretation” of the decree “as a whole is that alimony terminates only as expressly provided”—upon Janette’s death, Melvin’s death, or 372 months from the date of execution of the decree. Id. The cited “provisions,” in the court’s view, “strengthen an inference that the parties intentionally omitted remarriage” from the list of events that would terminate Melvin’s alimony obligation. Id. ¶ 31. And on that basis, the court of appeals held that the decree as a whole “specifically provides” that alimony was to continue despite Janette’s remarriage. Id. ¶ 36.

¶16 Melvin filed a petition for writ of certiorari, which we granted. We review the court of appeals’ decision de novo, according no deference to its decision. State v. Lujan, 2020 UT 5, ¶ 18, 459 P.3d 992.

¶17 We consider first Melvin’s challenge to the court of appeals’ determination that the divorce decree “specifically provides” for payment of alimony after remarriage. We then take up a further request made by Melvin—that we enter an order disgorging the alimony payments he has made in the period after Janette’s remarriage. We reverse the court of appeals, decline to enter an order of disgorgement, and remand to the district court for any further proceedings that that court may deem appropriate.

II.

¶18 As a general rule, a stipulated divorce decree is interpreted as if it were a contract between the parties. Parties to a divorce are bound by the terms of their stipulated agreement. See Thayer v. Thayer, 2016 UT App 146, ¶ 17, 378 P.3d 1232; see also Higley v. McDonald, 685 P.2d 496, 499 (Utah 1984) (parties bound by terms of stipulated agreement in property boundary dispute). And the court’s goal in interpreting such a document is to credit the agreed-upon terms of the stipulation under “established rules of contract interpretation.” Thayer, 2016 UT App 146 ¶ 17, 378 P.3d 1232 (citation omitted). In so doing, a court should consider each provision of a decree “in relation to all others, with a view toward giving effect to all and ignoring none.” Id. (citation omitted).

¶19 We see a basis for the court of appeals’ decision under this standard of interpretation. Several of the terms of the divorce decree make reference to the possibility of Janette’s remarriage. And the alimony provisions themselves list conditions other than remarriage (death of one of the parties or expiration of a 372-month period) as grounds for termination of Melvin’s alimony obligation. With this in mind, we can see why the court of appeals found a basis for an “inference that the parties intentionally omitted remarriage” from the list of events that would terminate Melvin’s alimony obligation. By stating that alimony would terminate upon Melvin’s or Janette’s death or after a period of 372 months, it is entirely possible that the parties to the decree were contemplating that there were no other events (such as Janette’s remarriage) that would cut off the alimony payment.

¶20 This inference, moreover, may be strengthened by other provisions of the decree. A key provision, as the court of appeals noted, is the footnote calling for a meeting—without “spouses”—to review the parties’ standard of living and make any necessary alimony adjustments. That provision implicitly seems to contemplate the possibility of an alimony adjustment made after Janette remarried, since it prohibits the attendance of “spouses” (plural).

¶21 For these reasons, we likely would be affirming the court of appeals if we agreed that the effect of remarriage on the alimony payment were a matter of discerning the parties’ likely intentions as reflected in the terms of the divorce decree interpreted as a whole. But that is not the standard. By statute, a party’s obligation to make alimony payments is distinct from other terms and conditions of a divorce decree. If a decree sets forth an obligation to pay alimony, the payment obligation is legally presumed to terminate upon remarriage of the receiving spouse. See Utah Code § 30-3-5(9) (2015). And the presumption is rebutted not by a showing of the parties’ contrary intentions as evidenced by the terms of the divorce decree as a whole, but by a specific proviso to the contrary in a provision addressed to the payment of alimony. See id.

¶22 This follows from the governing text of the controlling statute. “Unless a decree of divorce specifically provides otherwise, any order of the court that a party pay alimony to a former spouse automatically terminates upon the remarriage or death of that former spouse.” Id. The statute prescribes the presumptive effect of the terms of an “order of the court that a party pay alimony to a former spouse.” Such terms are to be interpreted to “automatically terminate[ ] upon the remarriage or death” of the former spouse. This presumption is rebuttable. But the rebuttal must be in the manner set forth by statute: The “decree of divorce” must “specifically provide[ ] otherwise.”

¶23 A divorce decree “specifically provides otherwise” only if there is a provision that speaks directly to the alimony payment in terms that explicitly prescribe a payment obligation that persists despite remarriage. This is clear from the language and structure of the statute. A divorce decree “specifically” overrides the statutory presumption only where it speaks specifically to the alimony payment obligation. And it “provides otherwise” only in a provision of the decree that contradicts the presumption—in stating otherwise (contrary to the statutory presumption) that alimony will continue despite remarriage.

¶24 This interpretive standard is reinforced in Utah case law. In Lord v. Shaw, we considered a divorce decree stating that “alimony [was] to run for a period of three years,” entered under a statute essentially identical to the provision at issue here. 682 P.2d 853, 855 (Utah 1984)), (citing Utah Code § 30-3-5(2) (Supp. 1983)), abrogated on other grounds by Bailey v. Sound Lab, 694 P.2d 1043 (Utah 1984). After remarriage, the receiving spouse asserted a right to continued alimony during the agreed-upon three-year period. She contended that the parties understood that alimony was to continue “for three years regardless of her marital status.” Id. And she asserted that the three-year period was aimed at “assist[ing] her with her education, which would take three years.” Id.

¶25 In Lord we nowhere refuted the receiving spouse’s assertions about the parties’ intentions under the divorce decree, or denied the inference that could be drawn from the decree’s proviso that alimony would continue “for a period of three years.” But we noted that the duty to pay alimony is presumed to terminate upon remarriage unless the divorce decree “specifically provides otherwise.” Id. (citing Utah Code § 30-3-5(2) (Supp. 1983)). And we held that the decree did not “provide for an exception to the general rule that alimony terminates upon remarriage” because it did not include a specific proviso calling for payment of alimony after the receiving spouse’s remarriage. Id.

¶26 The divorce decree at issue in this case is admittedly more detailed than the one presented in Lord. And in some ways, the decree at issue here may provide an even stronger basis for an inference that the parties may have contemplated the possibility of alimony payments continuing after remarriage of the receiving spouse. But the controlling statute does not provide for rebuttal of the underlying presumption by inference. It requires a specific proviso that alimony continues after remarriage. And the absence of such proviso is as controlling here as it was in Lord.

¶27 In so holding, we are not requiring the inclusion of talismanic phrases or magic words. We are simply following the dictates of the statute as interpreted in the case law. And we are accordingly holding that the presumption that alimony terminates upon remarriage is not rebutted by inference but only by a specific proviso that such payments will continue after the receiving party remarries.

¶28 Janette warns of the possibility of a “trap” for the “unwary” if “technical” words are required to rebut the statutory presumption. And she asserts that there is “no discussion” in the legislative history indicating that the legislature “intended” to “require elevated precision in language or the placement of such language in a dedicated ‘proviso.’ ”

¶29 We accept some of the threshold premises of Janette’s arguments. But we do not view them as undermining our holding.

¶30 As to the first point, we again emphasize that the governing standard does not require any particular precision or use of technical language. It just requires a specific proviso that alimony payments are to continue despite remarriage. Perhaps some parties to a divorce will be unaware of the governing legal standard. But the statute states the governing standard. And the public is charged with knowledge of its terms and conditions—ignorance of the law is no excuse. See In re Adoption of B.Y., 2015 UT 67, ¶ 19 n.3, 356 P.3d 1215.

¶31 On the second point, we concede that the requirement of a “dedicated ‘proviso’ ” is nowhere articulated in the legislative history. But “[l]egislative history is not law.” Graves v. N. E. Servs., Inc., 2015 UT 28, ¶ 64, 345 P.3d 619. The law is set forth in the statutory text that was voted on by the legislature. See id. ¶¶ 64–65 (stating that the law is the “statutory text” as “duly enacted” by the legislature). And we cannot foreclose an interpretation of the text on the ground that there is no evidence that it was considered openly on the legislative record. Such a decision would invert the premises of the legislative process, giving “primacy to legislative history, and only secondary significance to the duly enacted statute.” Id. ¶ 65 (explaining that this would “turn a core principle of statutory construction on its head”).

¶32 Janette’s objections ultimately are matters to be taken up, if at all, by the legislature. Perhaps that body could be persuaded that the effect of remarriage on an alimony clause should be a matter controlled purely by an inquiry into the likely intentions of the parties to the divorce decree. And if the legislature so concluded, it certainly could amend the operative statute, and thereby subject alimony provisions to a contract-based standard of interpretation.

¶33 But that is not our law as now written. And we see some wisdom in the law as it stands. The statutory presumption is a gap-filler. It sets a legal presumption based on an educated guess about the likely intentions of the parties to most divorce actions. And it facilitates the process of finalizing the divorce decree by setting a presumptive rule that remains in place unless expressly repudiated.2

¶34 The statutory presumption seems rooted in a fair guess about the likely intentions of the parties to most divorce decrees. And the standard, as stated in our law, provides a clear background rule that parties can negotiate around. If the parties wish to depart from the background presumption, they must do so explicitly in a proviso stating that alimony payments are to continue after remarriage. If they fail to “specifically” so “provide,” the statutory presumption is retained.

¶35 We reverse the court of appeals on this basis. The divorce decree in this case does not include a specific provision stating that alimony is to continue despite remarriage. The alimony provision identifies events other than remarriage that will trigger the termination of alimony. And that, combined with other references to remarriage in the decree, could be viewed to support an inference that the parties contemplated that alimony would continue despite the receiving spouse’s remarriage. But such an inference is insufficient under our law. And we conclude that Melvin’s alimony obligation terminated by operation of law because the decree did not “specifically provide[ ] otherwise.”

III.

¶36 In addition to seeking reversal of the decision of the court of appeals, Melvin asks us to enter an order disgorging the alimony payments he has made to Janette after her remarriage. We decline to consider the disgorgement question in the absence of any analysis of the matter in the proceedings below. Instead, we reverse and remand the matter to the district court for any further proceedings the district court may deem appropriate.

¶37 In remanding, we are taking no position on the propriety or availability of any request for disgorgement or of the proper direction of any further proceedings on remand. We leave the matter to the sound discretion of the district court, with appropriate input from the parties.

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In re Z.C. W. – 2021 UT App 98 – Utah Court of Appeals

In re Z.C.W. – 2021 UT App 98 

THE UTAH COURT OF APPEALS 

STATE OF UTAHIN THE INTEREST OF Z.C.W. AND C.C.W., 
PERSONS UNDER EIGHTEEN YEARS OF AGE. 

R.D., Appellant, v.  C.L.W., Appellee. 

Opinion 

No. 20200039-CA 

Filed September 23, 2021 

Third District Juvenile Court, West Jordan Department 

The Honorable Renee M. Jimenez 

No. 1135445 

Julie J. Nelson and Alexandra Mareschal, Attorneys for Appellant 

Lisa Lokken and Kirstin H. Norman, Attorneys for Appellee 

Martha Pierce, Guardian ad Litem 

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

HARRIS, Judge: 

¶1 This termination-of-parental-rights case—in which R.D. (Mother) seeks to terminate the parental rights of her ex-husband, C.L.W. (Father), regarding their two children, C.C.W. and Z.C.W. (collectively, Children)—comes to us for a second time. In our previous opinion, we reversed the juvenile court’s order dismissing Mother’s petition and remanded the case with instructions for the court to redo its “best-interest” analysis, this time taking into account evidence that it had previously discounted regarding Father’s history of domestic violence toward Mother and another woman. See In re C.C.W., 2019 UT App 34, ¶¶ 19–25, 440 P.3d 749. On remand, the juvenile court reconsidered best interest and this time took into account Father’s history of domestic violence, but it conducted its analysis as of early 2017—the time of the previous trial—and not as of late 2019, when the post-remand proceedings took place. The court denied Mother’s motion to amend her termination petition to include new facts and circumstances that she asserted had occurred after the earlier trial, and the court refused to consider any evidence regarding best interest that had not been placed into the record at the previous trial. After reevaluating best interest as of 2017, this time not compartmentalizing Father’s history of domestic violence, the court again concluded that termination of Father’s parental rights was not in Children’s best interest, and again dismissed Mother’s petition. 

¶2 Mother appeals the dismissal of her petition, but does not raise a substantive challenge to the juvenile court’s new findings and conclusions—that is, Mother does not claim that the findings are unsupported by the evidence presented at the 2017 trial. Instead, Mother’s challenge is procedural: she asserts that the court erred by conducting its post-remand best-interest analysis in light of the evidence available in 2017, and by refusing to consider facts and circumstances arising after 2017 that might have affected its analysis. We agree with Mother, and hold that when we remand a case for a court to reconsider the best-interest question, we generally intend for that renewed inquiry to be conducted in the present tense, and for the effective date of that analysis to be the date of the post-remand proceeding. Accordingly, we vacate the juvenile court’s order of dismissal, and remand for a new best-interest analysis that should be conducted based on the facts and circumstances in existence as of the date the inquiry is made. 

BACKGROUND 

¶3 Many of the salient facts that inform the legal issues in this case are set forth in detail in our previous opinion, see id. ¶¶ 2–12, and we see no need to repeat them here. For present purposes, we include only a brief summary of the pre-remand facts. 

¶4 Mother filed a private petition seeking termination of Father’s parental rights regarding Children and alleged, among other things, that Father had a history of domestic violence toward her and another woman and had been incarcerated twice for such offenses. Id. ¶¶ 2–5. After a trial in early 2017, the juvenile court found that Father had abandoned Children, and that there were therefore statutory grounds for termination, id. ¶ 7, but concluded that it was not in Children’s best interest for Father’s parental rights to be terminated, id. ¶¶ 9–12. The court made factual findings that Father had indeed brutally attacked Mother and had a history of domestic violence, id. ¶ 8 & n.1, but nevertheless concluded that those facts had little bearing on the termination inquiry, because Father had never been violent toward Children, id. ¶ 8. After determining that Mother had not carried her burden on the best-interest inquiry, the juvenile court dismissed Mother’s petition, and Mother appealed. Id. ¶¶ 12–13. 

¶5 On appeal, we concluded that the juvenile court’s best-interest “analysis was materially flawed” because, rather than evaluating the impact Father’s acts of domestic violence could have on Children, the court “completely separate[d] or compartmentalize[d]” Father’s “history of domestic violence toward other adults from the best-interest inquiry.” Id. ¶¶ 15, 19, 22. Accordingly, we vacated the order dismissing Mother’s petition and remanded for the juvenile court to “reconsider[]” its best-interest inquiry. Id. ¶ 25. We directed the court, in conducting its renewed inquiry, to “adequately consider[] all of the proper factors,” including “what effect, if any, Father’s history of domestic violence might have on his efforts to reestablish a relationship with the Children.” Id. 

¶6 Soon after remand, Mother filed a motion seeking leave to amend her petition to include additional relevant information. Mother asserted that “significant events, developments and incidents” bearing on Children’s best interest had occurred in the two years since the 2017 trial. Among other things, Mother alleged that, since the trial, Father had committed violent acts against another woman, and that Father’s parole had been revoked due to drug and alcohol use. In addition, Mother asserted that her own situation had changed, alleging that she had remarried and her new spouse now wanted to adopt Children. The guardian ad litem (GAL) assigned to represent Children endorsed Mother’s position. Nevertheless, the juvenile court denied Mother’s motion to amend, explaining that it interpreted our opinion as requiring only a “reconsideration” of its previous ruling. The court declined to consider the new material alleged by Mother in connection with its renewed best-interest analysis, stating that it would “listen to the testimony” presented at the 2017 trial and would “read and consider the various literature cited” in our opinion, after which it would issue a written ruling without further hearing. 

¶7 A few weeks later, the juvenile court issued a written decision setting forth its renewed best-interest analysis. This time, the court did consider Father’s history of domestic violence. The court again noted that there was no evidence that Father had ever “physically abused his biological or stepchildren,” and found that “Mother did not fear Father’s interaction with the Children.” The court also observed that, under the district court order then in effect governing the parties’ divorce proceedings, Father was entitled only to supervised parent-time with Children. The juvenile court concluded that Father was at low risk to commit domestic violence in the presence of Children, and gave several reasons for its conclusion: Father had little contact with Mother; Father had “engaged in mental health services and medication management” and had “developed coping skills”; Father was “remorseful” and “desire[d] to correct his past actions”; and Father “was married with a support system in place.” In the court’s view, this evidence demonstrated that Father had taken “meaningful steps to change his life in order to be reintroduced” to Children. The court also noted that Father was Children’s only “African American father figure,” and that by keeping Father’s parental rights intact, Children could “maintain their legal relationship” with Father’s extended family, including their older half-sister. For these reasons, the court concluded—based on reconsideration of the evidence presented at the 2017 trial— that Mother had not carried her burden of demonstrating, by clear and convincing evidence, that it would be in Children’s best interest for Father’s parental rights to be terminated. On that basis, the court again dismissed Mother’s petition, doing so without considering any evidence regarding events that allegedly occurred between the 2017 trial and the date of the court’s order. 

¶8 Soon after issuance of the juvenile court’s post-remand ruling, Mother and the GAL each asked the court for a “new trial,” contending that the court should “re-open the evidence” because it was “impossible for the court” to properly consider best interest “without considering evidence of events that have occurred in the two and a half years since the trial.” In the documentation supporting her motion, Mother provided additional detail regarding some of the new evidence, asserting that Children’s half-sister had reached adulthood, no longer lived with Father, and had her own independent relationship with Children; that Father had reduced his financial support of Children and let their insurance coverage lapse; and that C.C.W. had recently been diagnosed with attention deficit hyperactivity disorder, allegedly heightening the need for stability in his life.1 The court denied these motions, offering its view that it had complied with this court’s instructions by “considering all of the evidence presented” at the 2017 trial, and that Mother’s remedy was either to appeal or to file a new petition for termination of Father’s parental rights. 

ISSUE AND STANDARD OF REVIEW 

¶9 Mother appeals from the juvenile court’s second dismissal of her termination petition, and raises one issue for our review: whether the juvenile court erred when it conducted its post-remand best-interest inquiry in past-tense fashion, as of 2017, and refused to consider facts and circumstances that allegedly occurred after 2017.2 Both Mother and Father contend that we should review this issue for abuse of discretion. We disagree. The narrow question of whether a post-remand best-interest inquiry should be conducted in past-tense or present-tense fashion presents a procedural legal issue, not a factual issue, and one that we review for correctness.3 See Berman v. Yarbrough, 2011 UT 79, ¶ 12, 267 P.3d 905 (“We review procedural issues for correctness and afford no deference to the lower court’s ruling.”); see also State v. Kragh, 2011 UT App 108, ¶ 9, 255 P.3d 685 (“Procedural issues present questions of law, which we review for correctness.”). The question also involves interpretation of the remand instructions contained in our previous opinion, and no other court is better positioned on that score than we are. See State v. Lopes, 2001 UT 85, ¶¶ 11, 17–19, 34 P.3d 762 (stating that “the issues before us involve legal determinations” that are reviewed “for correctness,” including the “crucial question” of “what we meant when we remanded the case for a new trial” (quotation simplified)). Accordingly, we review the juvenile court’s post-remand procedural decisions for correctness. 

ANALYSIS 

¶10 “[T]he Utah Constitution recognizes and protects the inherent and retained right of a parent to maintain parental ties to his or her child.” In re J.P., 648 P.2d 1364, 1377 (Utah 1982). Indeed, our legislature has “declared that ‘a parent possesses a fundamental liberty interest in the care, custody, and management of the parent’s child.’” In re B.T.B., 2020 UT 60, ¶ 24, 472 P.3d 827 (quoting Utah Code Ann. § 78A-6-503(1) (LexisNexis 2017), now recodified at id. § 80-4-104(1) (Supp. 2021)). Before severing this important parent-child bond, a court must ensure that the party seeking to terminate a parent’s rights has made a two-part showing by clear and convincing evidence. See In re F.B., 2012 UT App 36, ¶ 2, 271 P.3d 824 (per curiam); see also In re B.T.B., 2020 UT 60, ¶¶ 44–54. First, the court must find grounds for termination under applicable statutory law. See In re F.B., 2012 UT App 36, ¶ 2; see also Utah Code Ann. § 80-4-301 (LexisNexis Supp. 2021).4 Second, the court “must find that termination of the parent’s rights is in the best interest[] of the child.” In re F.B., 2012 UT App 36, ¶ 2; see also Utah Code Ann. § 80-4-104(12)(a) (stating that the “best interest of the child” is “of paramount importance in determining whether termination of parental rights shall be ordered”). 

¶11 We have explained that the best-interest inquiry “requires courts to examine all of the relevant facts and circumstances surrounding the child’s situation.” In re C.C.W., 2019 UT App 34, ¶ 18, 440 P.3d 749 (quotation simplified). “This analysis should be undertaken from the child’s point of view, not the parent’s.” In re B.T.B., 2020 UT 60, ¶¶ 63, 64 (quotation simplified). A child’s best interest can be determined only by considering “the physical, mental, or emotional condition and needs of the child.” In re T.E., 2011 UT 51, ¶ 41, 266 P.3d 739 (quoting Utah Code Ann. § 78A-6-509 (LexisNexis Supp. 2011), now recodified at id. § 80-4-303 (Supp. 2021)). “[A]ny evidence that is probative of what is in the child’s best interest” may be considered. Id. In sum, the best-interest inquiry is “wide-ranging” and “asks a court to weigh the entirety of circumstances . . . to determine what is in the best interest of the child under all of the circumstances,” In re J.M., 2020 UT App 52, ¶ 35, 463 P.3d 66, with the court’s focus being “firmly fixed on finding the outcome that best secures the child’s well-being,” In re B.T.B., 2020 UT 60, ¶ 64. A court may not, simply due to concerns about judicial economy, limit the scope of the best-interest inquiry. See In re J.J.T., 877 P.2d 161, 164 (Utah Ct. App. 1994) (stating that, when considering “the best interest[] of a child, a court must be free from the imposition of artificial constraints that serve merely to advance the cause of judicial economy”). 

¶12 In the context of evaluating the termination of a parent’s rights, we have stressed that “[c]onsiderations regarding a child’s welfare are rarely, if ever, static,” and that often “the child’s environment is constantly evolving.” Id. at 163; see also In re H.J., 1999 UT App 238, ¶ 45, 986 P.2d 115 (stating that a child’s “needs and circumstances can, and do, change rapidly,” and in many cases “the passage of time itself can result in substantially different circumstances” for a child). For these reasons, the best-interest inquiry is generally to be conducted in present-tense fashion, with the effective date of the inquiry being the date of the hearing, trial, or other judicial determination. In a best-interest inquiry, the relevant question is almost always this one: what outcome is in the child’s best interest now? 

¶13 This conclusion is bolstered by the language of the current governing statute. Although this particular language was not in effect at the time the juvenile court entered its post-remand findings, our legislature in 2020 added the following language— as immaterially amended in 2021—to the relevant statute: 

In determining whether termination is in the best interest of the child, and in finding that termination of parental rights, from the child’s point of view, is strictly necessary, the juvenile court shall consider [certain factors, including reunification efforts and kinship placement possibilities]. 

Utah Code Ann. § 80-4-104(12)(b) (emphasis added). This statutory language uses the verb “is,” indicating that the best-interest inquiry is to be undertaken in a present-tense fashion. See Scott v. Scott, 2017 UT 66, ¶ 24, 423 P.3d 1275 (“Typically, we understand ‘is’ as a present tense . . . verb . . . . Accordingly, we assume that the legislature used ‘is’ here as a present-tense verb.” (quotation simplified)); see also W.N. v. S.M., 424 P.3d 483, 490 (Haw. 2018) (concluding that a lower court erred, post-remand, by conducting its custody analysis in past-tense fashion as of the date of the previous trial, and emphasizing that the governing statute’s present-tense locution “requires the court to consider if the person ‘is fit and proper’ to care for the minor child at the time of the contemplated custody award”). 

¶14 In situations where we have remanded a case for a trial court to redo its best-interest analysis, we have sometimes given explicit instructions for courts to do so in present-tense fashion. See, e.g.In re H.F., 2019 UT App 204, ¶ 18 n.6, 455 P.3d 1098 (remanding for a new best-interest analysis, and stating that “any number of circumstances may have changed since trial, and the court should take such changes into account in reconsidering its decision”); Ross v. Ross, 2019 UT App 104, ¶ 20, 447 P.3d 104 (remanding for renewed consideration of a parent’s relocation, including whether such relocation was in the child’s best interest, and stating that, in reconsidering the relocation question, the court “should consider the present circumstances of the parties and the Children and not simply re-litigate the issues as they were at the time of the now-vacated custody order”). In this case, unfortunately, our remand instructions were not quite as explicit. We concluded that “the juvenile court’s best-interest determination was materially flawed,” vacated the court’s order on that basis, and remanded “for proceedings consistent with this opinion,” stating that the court should “reconsider[]” the best-interest question. See In re C.C.W., 2019 UT App 34, ¶ 25. We did not directly instruct the court to undertake that “reconsideration” in a present-tense fashion. In hindsight, we wish we had been more explicit. But our intent was that the court would redo its entire best-interest analysis, this time taking into account the domestic violence evidence, and that it should undertake that analysis in present-tense fashion, evaluating best interest as of the time of the post-remand proceedings. We take this opportunity to clarify that, unless we direct otherwise in a particular case, courts should assume that we intend for post-remand best-interest analyses to be undertaken in a present-tense manner. 

¶15 Post-remand application of a present-tense analysis will not, however, always require a new evidentiary hearing. It may be that, in certain cases, the situation will not have changed at all, and the parties will not have any new evidence to present; in such a situation, given the absence of any new evidence, a present-tense and past-tense analysis will not differ. In other situations, a court may examine the proffered new evidence and conclude that, even assuming the veracity of the new allegations, the court’s analysis would remain unchanged; such analysis is, in its own way, a present-tense analysis, even though no new hearing will be necessary. Cf. In re G.D., 2021 UT 19, ¶¶ 80–82, 491 P.3d 867 (concluding that a lower court appropriately dealt with proffered new evidence in a termination case when it concluded that “none of the [new] evidence would have altered the court’s [previous] decision” (quotation simplified)). In still other situations, the parties may agree that the new allegations, even if material, are not disputed; in those cases, a court would be within its discretion to undertake its present-tense analysis, including consideration of the new undisputed evidence, without holding a new evidentiary hearing. And in many other situations, one or both of the parties may wish to offer new material disputed evidence; in those cases, a court conducting a post-remand best-interest analysis will likely need to hold an evidentiary hearing and make findings regarding the veracity and the materiality of the new allegations, and will need to consider whether additional discovery or other pre-hearing proceedings would be appropriate. See, e.g.W.N., 424 P.3d at 491 (determining that a lower court erred, post-remand, when it failed to hold an evidentiary hearing to consider new disputed factual allegations that “would have directly pertained” to the issue at hand). But regardless of the posture of the particular case, a court conducting a proper post-remand best-interest analysis must—in some manner—consider and appropriately deal with proffered new evidence. 

¶16 With these principles in mind, we now examine the juvenile court’s handling of Mother’s proffered new evidence in this case. As noted above, the court refused to allow Mother to amend her petition to include new allegations, and after issuing its post-remand ruling it denied Mother’s motion for “new trial” in which Mother again asked the court to consider the new allegations.5 The court espoused a narrow interpretation of the remand instructions in our previous opinion, and opted to conduct a “reconsideration” of the evidence that had been presented at the 2017 trial, without any consideration of the new evidence Mother proffered. And the court instructed Mother that the proper avenue to facilitate adjudication of the new allegations was to file an entirely new petition for termination of Father’s parental rights. 

¶17 The juvenile court erred by undertaking its best-interest analysis as of 2017, the date of the previous trial. As discussed above, the court should have undertaken its best-interest analysis in present-tense fashion, as of 2019, the date of the post-remand proceeding. And the court erred by refusing to consider, in some form, the new evidence proffered by Mother. The court made no determination that the proffered evidence was immaterial or inadmissible;6 we offer our own observation that at least some of the proffered evidence—in particular, the allegation that Father has committed additional acts of domestic violence against additional women—if true, appears to be at least potentially material and at odds with some of the court’s post-remand findings. And the court made no effort to ascertain the extent to which the new evidence was disputed. The court needed to consider the new evidence in some fashion, rather than simply relying on previously submitted evidence. 

¶18 Mother could, of course, alternatively file a new termination petition. In such a proceeding, Mother could air all of the new allegations, and would not be barred by res judicata from incorporating into her presentation facts found by the court during the previous proceedings. See In re A.C.M., 2009 UT 30, ¶ 18, 221 P.3d 185 (“We . . . adopt the rule . . . that in child welfare proceedings res judicata does not bar courts from considering both newly discovered facts, whether or not they were knowable at the time of the earlier proceeding, and facts determined in previous termination proceedings when considering a later termination petition.”); see also Hardy v. Hardy, 776 P.2d 917, 922–23 (Utah Ct. App. 1989) (stating that res judicata does not preclude reconsideration of previously admitted evidence because res judicata, in this context, is “subservient to the child’s best interest[]”). But filing a new termination petition would entail some inefficiencies; as Mother pointed out at oral argument before this court, if a new petition were filed the juvenile court would be required to start from scratch, and re-adjudicate the entire case, including the “statutory grounds” portion that is no longer in dispute here. Moreover, the mere fact that Mother has the option of filing another action does not mean that her preferred option is thereby foreclosed. When two valid procedural litigation options exist, it is up to the litigant to choose which one to utilize. See, e.g.Utah Stream Access Coal. v. VR Acquisitions, LLC, 2019 UT 7, ¶ 36, 439 P.3d 593 (“[A] core component of our adversary system [is] the notion that the plaintiff is the master of the complaint. We leave it to the parties to plead claims and defenses in the time and manner designated by our rules.”). A court may not close one door simply because another one exists, even if the court considers the litigant’s preferred option inefficient. See In re J.J.T., 877 P.2d 161, 164 (Utah Ct. App. 1994) (stating that, when considering “the best interest[] of a child, a court must be free from the imposition of artificial constraints that serve merely to advance the cause of judicial economy”); cf. AFA Distrib. Co. v. Pearl Brewing Co., 470 F.2d 1210, 1213 (4th Cir. 1973) (stating that federal courts asked to exercise diversity jurisdiction “cannot close the door to the federal courts merely because [a diversity] case involves a difficult question of state law”). 

CONCLUSION 

¶19 The juvenile court erred by conducting a past-tense—rather than a present-tense—analysis while reconsidering best interest during its post-remand proceedings. The best-interest inquiry is, in most cases, not to be based on a snapshot from the past. Rather, a proper best-interest inquiry requires evaluating all relevant past and present circumstances bearing on a child’s welfare as of the date of the proceeding. Where an appellate court remands a case for a trial court to redo its best-interest analysis, that analysis should generally be conducted as of the date of the post-remand proceedings, and the court must consider, in some fashion, any new evidence proffered by the parties. 

¶20 Accordingly, we vacate the juvenile court’s order dismissing Mother’s petition, and we again remand for the juvenile court to redo its best-interest analysis, this time doing so in a present-tense fashion, and not as of 2017 or as of 2019. We once again express no opinion on the substance of the best-interest question, and emphasize that our opinion should not be construed as urging one outcome or another on remand. 

 

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

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If I can’t find an attorney, can it honestly be said I got a fair trial?

If I can’t find an attorney, can it honestly be said I got a fair trial?

If a person seeks legal representation in a court, and every attorney they tries to hire refuses to represent them, can he receive a “fair trial”?

That depends upon how you define a “fair trial”. Some people mistakenly believe that in the United States every litigant is guaranteed representation by an attorney in any lawsuit. This is not true. Defendants in criminal cases that involve the risk of substantial jail time are entitled to appointment of counsel, free of charge to the defendant, if the defendant so desires.

In some jurisdictions, a parent is entitled to appointed counsel if the state petitions to terminate that parents parental rights.

There is no right to appointed counsel in civil cases. so there is no right to appointed counsel in divorce actions or personal injury actions or other cases that do not involve serious, jailable criminal charges. So, if you were to claim you could not find any lawyer to represent me and to help me in my civil suit, you could not claim that your rights were somehow violated. It could thus be said that you received a fair trial, even if you were unable to find a lawyer to represent you at trial.

But if the case was a complex one, and one where a knowledge of the laws and/or regulations, as well as the procedural rules of court, makes the difference between winning or losing, having no attorney to represent you, that isn’t a fair fight. unfair, but not illegal. You have no legal recourse in those circumstances.

I have met people who have claimed that they cannot find an attorney to represent them in a particular civil action. More often than not, the reasons why are fairly clear: the person seeking representation can’t afford to pay the attorney and/or the person does not have a winning legal argument (either because that person is clearly in the wrong or because that person doesn’t have enough evidence to win or to win in the manner that person desires).

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

https://www.quora.com/If-a-person-seeks-legal-representation-in-a-court-and-every-attorney-they-tries-to-hire-refuses-to-represent-them-can-he-receive-a-fair-trial/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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In re L.M. – 2019 UT App 174 – reasonable reunification services

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

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

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

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

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

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

PER CURIAM:

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

¶2        “Trial courts are in the best position to evaluate the credibility of witnesses, the parent’s level of participation in reunification services, and whether services were appropriately tailored to remedy the problems that led to the child’s removal.” In re K.F., 2009 UT 4, ¶ 52, 201 P.3d 985. Accordingly, “juvenile courts have broad discretion in determining whether reasonable reunification efforts were made.” Id.

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

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

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

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

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

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

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

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

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

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

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

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

¶13 Affirmed.

————————————————————

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

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Can I voluntarily terminate my parental rights?

My daughter hates me, my ex wants me out of their lives, and we have agreed to give up my parental rights. What can we do to terminate my parental rights?

In Utah (where I practice family law), you can get a good overview of the process (from the Utah Courts’ own website (click here)—mind you, the website is not always accurate, but it’s a great place to start to learn about how one can have his/her parental rights voluntarily terminated).

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

https://www.quora.com/My-daughter-hates-me-my-ex-wants-me-out-of-their-lives-and-we-have-agreed-to-give-up-my-parental-rights-what-can-we-do-to-terminate-my-parental-rights/answer/Eric-Johnson-311

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Can a Parent Pay No Child Support and Still Have Visitation and Parent-time Rights?

QUESTION:

Dear Eric,

My ex and I have been separated for a while now. He has not given us any money for child support. I am supporting my child and me on my own, and now my husband says he wants to get a divorce.

He also says wants to give me sole custody of our child, doesn’t want to pay child support of any kind, but still have visitation and parent-time rights.

Can he get out of paying child support under Utah law and still see our child? Or does he have to sign his parental rights away to avoid child support and therefore then will not be allowed to see our child, unless I allow him to?

ANSWER:

To answer your questions:

Can he get out of paying child support under Utah law?

Not if he’s employed or unemployed, but employable.

Does he have to sign his parental rights away to avoid child support?

Yes. This is known as termination of parental rights. This can be accomplished by a voluntary relinquishment of parental rights, if your husband is willing to do this voluntarily. But even if he won’t voluntarily relinquish his parental rights, you can still petition the court to terminate his parental rights against his will.

Therefore, he isn’t allowed to see our child, unless I allow him to?

NO! The law in Utah is clear on this: you cannot withhold contact between the child and a parent, even if that parent is refusing to pay child support:

“Neither parent-time nor child support is to be withheld due to either parent’s failure to comply with a court-ordered parent-time schedule.”

The reason behind this policy is that children need and deserve both financial and emotional support from parents. If a father deprives a child of his financial support that doesn’t justify the mother withholding from the child the father’s emotional support and love too. And that makes sense, even though it’s not much help to the mother in this scenario.

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

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In re K.K. 2017 UT App 58

In re K.K. 2017 UT App 58 – Utah Court of Appeals

STATE OF UTAH, IN THE INTEREST OF K.K., J.R.K., AND M.K.,

PERSONS UNDER EIGHTEEN YEARS OF AGE.

L.K.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Per Curiam Decision

No. 20161023-CA

Filed March 30, 2017

Fifth Juvenile District Court, St. George Department

The Honorable Paul E. Dame

No. 1066694

Benjamin D. Gordon, Attorney for Appellant

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

Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

Before JUDGES MICHELE M. CHRISTIANSEN, KATE A. TOOMEY, and DAVID N. MORTENSEN.

PER CURIAM:

¶¶1 L.K. (Father) appeals the juvenile court’s order terminating his parental rights. We affirm.

¶2        “[I]n order to overturn the juvenile court’s decision [to terminate a person’s parental rights,] ‘the result must be against the clear weight of the evidence or leave the appellate court with a firm and definite conviction that a mistake has been made.’” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435 (citation omitted). We “review the juvenile court’s factual findings based upon the clearly erroneous standard.” In re E.R., 2001 UT App 66, ¶ 11, 21 P.3d 680. 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. See id. Further, we give the juvenile court a “wide latitude of discretion as to the judgments arrived at based upon not only the court’s opportunity to judge credibility firsthand, but also based on the juvenile court judges’ special training, experience and interest in this field.” Id. (citations and internal quotation marks omitted). Finally, “[w]hen a foundation for the court’s decision exists in the evidence, an appellate court may not engage in a reweighing of the evidence.” In re B.R., 2007 UT 82, ¶ 12.

¶3        Father first argues that there was insufficient evidence to demonstrate grounds supporting termination of his parental rights. The juvenile court based its termination decision on several grounds, including unfitness. See Utah Code Ann. § 78A-6-507(1)(c) (LexisNexis 2012). The evidence in the record supports the juvenile court’s findings and determination that Father was unfit to care for his children.[1]

[1.] Pursuant to Utah Code section 78A-6-507, the finding of any single ground for termination is sufficient to warrant termination of parental rights. See Utah Code Ann. § 78A-6¬ 507(1) (LexisNexis 2012); In re F.C. III, 2003 UT App 397, ¶ 6, 81 P.3d 790 (noting that any single ground is sufficient to terminate parental rights). As a result, if there is sufficient evidence to support any of the grounds for termination found by the juvenile court, the termination of Father’s rights is appropriate.

For example, the juvenile court found that Father had an extensive history of both drug use and domestic violence. While Father completed one drug treatment program during the course of this case, shortly after completing the program he overdosed on prescription medication in a suicide attempt. A few months later he tested positive for marijuana and methamphetamine, thereafter expressing a desire to get help for his substance abuse problems. Thus, it is clear that Father’s drug habits were not resolved by the completion of the initial drug rehabilitation program. Similarly, the juvenile court found that Father had not adequately addressed his domestic violence issues. Father began classes for domestic violence, but at the time of trial he was still months away from completion of the course.

¶4        Father’s failure to adequately address his domestic violence issues is all the more important due to his ongoing relationship with the mother of the children, who had previously relinquished her parental rights to the children. The juvenile court found that the two have a volatile history with each committing violent acts against the other. However, both have expressed their desire to maintain their relationship with the other. In fact, based on the evidence presented, the juvenile court determined that Father’s relationship with the mother is likely to continue indefinitely, which causes difficulty due not only to her unresolved domestic violence issues, but also due to her unresolved mental health and drug issues. The mother’s unresolved issues make it unsafe for the children to be around her. However, Father does not or cannot recognize these problems, believing that mother is a good mom, that the children are safe around her, and that the children would not be detrimentally affected being around her. Accordingly, due to Father’s failure to address several internal issues and to put the children’s interests ahead of the interest of the mother, the juvenile court found that the children would not be safe if it returned the children to Father’s custody. Thus, evidence in the record supports the juvenile court’s decision that Father was unfit.[2] See In re B.R., 2007 UT 82, ¶ 12.

[2.] A court may not terminate a person’s parental rights unless it is in the best interests of the children. See Utah Code Ann. § 78A-6-503 (LexisNexis Supp. 2016). Father does not challenge the juvenile court’s decision concerning the best interests of the children; accordingly, we do not address the issue.

¶5        Father next asserts that the juvenile court erred in determining that the Division of Child and Family Services (DCFS) made reasonable efforts to reunify him with his children. “Reasonable efforts” has been defined as “a fair and serious attempt to reunify a parent with a child prior to seeking to terminate parental rights.” In re A.C., 2004 UT App 255, ¶ 14, 97 P.3d 706. However, the process of reunification is “a two way street which ‘requires commitment on the part of the parents, as well as the availability of services from the State.’” In re P.H., 783 P.2d 565, 572 (Utah Ct. App. 1989) (quoting In re J.C.O., 734 P.2d 458, 463 (Utah 1987)). Ultimately, reasonableness is an objective standard that “depends upon a careful consideration of the facts of each individual case.” In re K.F., 2009 UT 4, ¶ 51, 201 P.3d 985. Thus, the juvenile court has broad discretion in determining whether DCFS made reasonable efforts to reunify a child with her parent. In re A.C., 2004 UT App 255, ¶ 20.

¶6        Here, in examining DCFS’s efforts to reunify the children with Father, the juvenile court noted that “[t]his is not a typical case, rather, it has been a very high-maintenance, chaotic case” due to the significant needs of every family member. When the case was initiated the parents did not trust DCFS, thereby requiring more time to establish a rapport between the caseworker and the parents. Despite this high-maintenance case, DCFS provided extensive help to Father. The caseworker coordinated appointments to obtain Father’s psychological and domestic violence evaluations, provided referrals for other services, facilitated payments for services, and provided Father with financial support, including money for a down payment on an apartment. Father also failed to take advantage of some services and internalize the lessons of others. For example, Father’s caseworker was able to place Father and the mother into a shelter that was one of DCFS’s primary resource hubs. However, Father left the facility within a week because he believed someone was exhibiting too much interest in the mother. Moreover, despite completing drug counseling Father tested positive for methamphetamine and marijuana. In sum, the evidence in the record supports the juvenile court’s determination that DCFS provided reasonable services to Father.

¶7        Finally, Father alleges that the juvenile court erred in denying the mother’s attempt to invoke spousal privilege to prevent her from testifying at the trial. Father alleges that the juvenile court improperly allowed a blanket application of Rule 502(e)(4) of the Utah Rules of Evidence to the mother’s entire testimony. See Utah R. Evid. 502(e)(4) (stating that an exception to spousal privilege applies “[i]f the interest of a minor child of either spouse may be adversely affected, the Court may refuse to allow invocation of the privilege”). Father alleges that the juvenile court should have more thoroughly investigated the totality of the State’s anticipated questioning to determine if it would allow the privilege to be asserted at least partially in regard to some lines of questioning. However, this argument was not adequately preserved. “[I]n order to preserve an issue for appeal the issue must be presented to the trial court in such a way that the trial court has an opportunity to rule on that issue.” Brookside Mobile Home Park, Ltd. v. Peebles, 2002 UT 48, ¶ 14, 48 P.3d 968. Prior to her testimony, the mother raised the argument of spousal privilege, not Father. The court eventually decided that the privilege did not apply under rule 502(e)(4). The mother was then questioned by all parties. Father never objected to any part of her testimony in regard to privilege. If Father believed that certain testimony should not have been included within the scope of the juvenile court’s previous ruling, it was incumbent upon him to object to that testimony and provide the court with reasoned arguments as to why that particular testimony should have been privileged. Contrary to Father’s, argument it was not the responsibility of the juvenile court to explore every potential line of questioning prior to issuing its initial ruling. Accordingly, because the issue was not adequately preserved, we decline to address it.

¶8        Affirmed.

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

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