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Tag: termination of parental rights

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

In re H.M. – 2023 UT App 122

THE UTAH COURT OF APPEALS

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

PERSONS UNDER EIGHTEEN YEARS OF AGE.

G.B.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20220774-CA

Filed October 13, 2023

First District Juvenile Court, Logan Department

The Honorable Kirk M. Morgan

No. 1187751

Julie J. Nelson and Alexandra Mareschal,

Attorneys for Appellant

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

Peterson, Attorneys for Appellee State of Utah

Jonathan P. Thomas, Attorney for Father

Martha Pierce, Guardian ad Litem

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

TENNEY, Judge:

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

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

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

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

BACKGROUND

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

Allegations of Abuse from 2015 Through 2020[1]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Protective Supervision Services Case

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

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

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

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

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

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

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

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

Mother’s Allegations Against Father Resume

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

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

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

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

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

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

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

Termination Proceedings

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

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

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

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

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

Trial

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

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

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

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

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

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

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

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

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

Termination Decision

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

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

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

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

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

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

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

ISSUES AND STANDARDS OF REVIEW

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

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

ANALYSIS

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

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

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

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

  1. Present-Tense Best Interest of the Children

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  1. Supervised Visitation

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

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

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

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

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

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

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

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

III. Mother’s Additional Arguments

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

  1. Adoption

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

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

  1. “Piling On”

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

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

  1. Mandatory Reporting

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

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

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

CONCLUSION

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

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


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

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

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

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

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

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In re D.S. – 2023 UT App 98 – reversal of termination of parental rights

In re D.S. – 2023 UT App 98

THE UTAH COURT OF APPEALS

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

PERSONS UNDER EIGHTEEN YEARS OF AGE.

S.S.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20220956-CA

Filed August 31, 2023

Third District Juvenile Court, Salt Lake Department

The Honorable Annette Jan

No. 1198250

Sheleigh A. Harding, Attorney for Appellant

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

John M. Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE RYAN M. HARRIS authored this Opinion, in which

JUDGES DAVID N. MORTENSEN and AMY J. OLIVER concurred.

HARRIS, Judge:

¶1 After a trial, the juvenile court terminated S.S.’s (Father) parental rights regarding his two children, D.S. and K.S. (collectively, the Children), concluding that it was in the best interest of the Children for them to be adopted by their paternal grandmother (Grandmother). Father appeals the court’s termination order, asserting that—under the precise circumstances presented here, where the Children are being placed with Father’s own mother and where permanent guardianship remains a viable option—termination of his rights was not strictly necessary to promote the best interest of the Children. We agree with Father, and reverse the juvenile court’s termination order.

BACKGROUND

¶2        Father is the biological father of K.S., a boy born in 2010, and D.S., a girl born in 2016. Father resided with the Children and their mother (Mother) from the time the Children were born until approximately 2018. In 2014, the Division of Child and Family Services (DCFS) received a report that Father had committed “Domestic Violence related child abuse” against K.S. and some of the Children’s other siblings; most notably, the report alleged that Father had “cut [a sibling’s] hand with a knife.” DCFS found the allegations “supported,” but it did not take action to remove K.S. at that time, and no criminal charges were ever filed.

¶3        Around 2017, after D.S. was born, a protective order was entered against Father, for reasons unclear from this record, that restricted his ability to contact Mother. Even after entry of the protective order, though, Father continued to reside with Mother for about another year, in apparent violation of that order. Eventually, in 2018, Father and Mother went through “a messy break up” and separated; the Children remained in Mother’s custody. In the year following the separation, Father spent time with the Children on a regular basis through “weekend visits” that Grandmother initiated and staged at her house.

¶4        During this time period, Father was arrested for “possession of a dangerous weapon”—“a pocketknife in [his] pocket”—in connection with various “protective order violations.” In late 2019, he was sentenced to prison, and ordered to serve a term of zero to five years. When Father first got to prison, he was unable to visit with the Children—even virtually— due to the continued existence of the protective order, but in March 2020, after obtaining a modification to that order, he began visiting with the Children through weekly “video visits” or “phone visits.” In the beginning, it was Grandmother who “was really insistent” that these virtual visits take place between Father and the Children. And since 2020, such visits have occurred on more or less a weekly basis.

¶5        In early 2021, while Father was still incarcerated, the Children were removed from Mother’s custody after an incident in which Mother abandoned them. The Children were later adjudicated neglected as to Mother and dependent as to Father, and the juvenile court placed them with Grandmother. In later proceedings, Mother’s parental rights were terminated, a determination Mother has not appealed. And due to Father’s ongoing incarceration, reunification services were never offered to him; the juvenile court set a permanency goal of adoption.

¶6        In January 2022, the State filed a petition seeking to terminate Father’s parental rights regarding the Children. Prior to trial on that petition, Father stipulated that—largely due to his incarceration—the State could show at least one statutory ground for termination of his parental rights. But the case proceeded to trial on the other element of the termination test: whether termination was strictly necessary to promote the best interest of the Children. On that point, Father took the position that termination of his rights was not strictly necessary, given that—at least in his view—he had a good relationship with the Children, they were in the care of his own mother (Grandmother), and he would undoubtedly be a part of their lives going forward, at least in some sense, simply due to that reality. He asserted that a permanent custody and guardianship arrangement would suit this situation better than adoption would.

¶7        In August 2022, the juvenile court held a relatively brief trial to consider that issue; during that trial, the court heard argument from counsel and testimony from three witnesses: the DCFS caseworker (Caseworker), Grandmother, and Father.[1] Caseworker testified that the Children were doing well in Grandmother’s care. She was aware that the Children have regular virtual visits with Father, but she noted that the Children “don’t talk [with her] much about” those visits and, when they do, they often just say “they don’t remember what they talked [with Father] about.” Caseworker stated that she knows that the Children “love [Father],” and did not recall either of them ever saying that they found Father “scary.” But she offered her view that adoption by Grandmother was in the Children’s best interest, opining that “adoption is necessary to allow them permanency and . . . a long-lasting, stable environment.” She also stated that she had talked to the Children “about adoption” and that the Children “would like to be adopted by [Grandmother],” but did not elaborate or offer any context for this conversation.

¶8                      Grandmother testified that the Children were doing well

in school and thriving in her care. She acknowledged that, as a general matter, “fathers are important” in the lives of children, and she stated that she had been “a big advocate for” Father throughout the entire saga, even pushing to set up virtual visits from the prison after Father was first incarcerated. But she testified that, over time, she had become more of “an advocate for the [Children],” and offered her view that, due to some of the “choice[s]” Father had made, the relationship between Father and the Children had not “functioned properly for a very long time.” She discussed, at some length, the regular virtual visits that the Children have with Father, and she acknowledged that Father is a good listener during the visits. But she stated that the Children have lost interest in the visits over time, and that the visits are “hard for” the Children and make them “uncomfortable” because “they don’t know what to do” during the visits. To cope with the discomfort, Grandmother has added some “structure[]” to the visits “so that [the Children] would have things to talk about”; for instance, K.S. often plays the piano for Father during the visits, while D.S. often “plays kitchen” and pretends to cook things for Father. Grandmother offered her perception that the Children do not wish to have regular virtual visits anymore, and that Father does not understand that the visits are hard for the Children. She noted that sometimes the Children need to “spend some time kind of snuggling” with her after the visits. Grandmother also testified that, on at least one occasion, K.S. said that Father is “scary.”

¶9        Grandmother testified that she is ready, willing, and able to continue caring for the Children. But she voiced a strong preference for adopting them rather than acting as their permanent guardian. When asked why, she offered her view that adoption would be “less confusing” for the Children and that she could be “a consistent parent” for them given her “resources.” She opined that a guardianship arrangement “may suit [Father],” but she didn’t think it was “in the [C]hildren’s best interests.” She also stated that she was worried about what would happen to the Children—and, specifically, whether they would return to Father’s custody—if something were to happen to her. She acknowledged, however, that she would be willing to care for the Children in either form of custody (adoption or guardianship). And she also acknowledged that, even if Father’s parental rights were terminated and she were allowed to adopt the Children, she would nevertheless be open to the possibility that Father could still have a role in the Children’s lives, and in that situation she would “ask for some guidance from people that know more than [she does] about that,” such as the Children’s therapist. She testified that she had discussed the possibility of adoption with the Children, and that D.S. had compared it to those “commercials on TV about adopting a dog.” Referring to that comment, Grandmother acknowledged that the Children “have some misconceptions about” what adoption would mean and stated that she had “tried to fix” those misconceptions, but she offered no specifics about how she had attempted to do that.

¶10      Father was the trial’s final witness. In his testimony, he first described the involvement he has had in the Children’s lives since their birth, stating that when the family was living together he saw the Children every day, “took them to school, [and] everything.” Father acknowledged that the situation had changed due to his incarceration, and he recognized that the virtual visits from prison are “not ideal” because there are often other inmates in the background on video calls and because the technology sometimes has issues, but overall, he offered his view that the visits had been going well and that he did not think the visits were uncomfortable for the Children. As he perceived it, the Children “seem[ed] excited to see” him and “always tell [him] they love” him. He credited the virtual visits for allowing him to “maintain a relationship with” the Children despite his incarceration. He stated that he had “a really good bond” with K.S., with whom he shares a connection to music. He also spoke positively of his visits with D.S., although he acknowledged that D.S. sometimes “gets upset because [Father] can’t be there with her” in person.

¶11      Father testified that he was scheduled to be released from prison in December 2022, and he articulated a desire to “have a stronger relationship with” the Children than he was able to enjoy during incarceration. Father acknowledged that, immediately upon his release from prison, he would be in no position to assume custody of the Children, because he would “have a lot of stuff to deal with,” like “getting a job,” addressing his housing situation, and sorting out outstanding “immigration” issues.[2] But he was vocal about wanting to continue and improve his relationship with the Children after his release from prison.

¶12 After the presentation of evidence, the attorneys made closing arguments. The juvenile court did not make any ruling on the record at the close of the trial; instead, it asked the parties to submit additional briefing on “the issue of strictly necessary.” A few weeks later, the parties submitted those supplemental briefs, and thereafter the court issued a written ruling terminating Father’s parental rights.

¶13 Because Father had conceded the existence of statutory grounds for termination, the only issue the court needed to address was whether termination of Father’s rights was in the best interest of the Children and, as part of that inquiry, whether termination was strictly necessary to promote the Children’s best interest. And on that score, the court concluded that termination was indeed strictly necessary. The court acknowledged that both Father and Grandmother love the Children. The court also acknowledged that “there were no allegations of abuse and neglect regarding [Father] at the time the [C]hildren were ordered into” the custody of DCFS.[3] But the court found that Father’s “ability to offer love, affection, [and] guidance, and to continue with the [C]hildren’s education is very limited both due to his incarceration and [the Children’s] resistance to engaging with” Father. The court noted that the Children “have had stability” with Grandmother and were doing well in her care. The court also referenced its belief that the Children “desire to remain with and be adopted” by Grandmother, but it made no determination that the Children were of sufficient capacity to be able to meaningfully express their desires in this context.

¶14      In addition, the court opined that adoption was “necessary and essential to [the Children’s] well-being as it will protect them from [Father’s] desire to have ongoing and frequent visitation.” The court chided Father for failing “to recognize that the [C]hildren . . . do not want to visit with him,” and concluded that this failure “raises questions as to whether [Father] could act in the [C]hildren’s best interest.” In the court’s view, the fact that Father “believes [the Children] enjoy the visits” and that he “would, ideally, exercise more visitation [after release from prison] is exactly why a permanent custody and guardianship neither protects nor benefits the [C]hildren.” The court stated that a guardianship arrangement would “fail to ensure adequate protections against [Father’s] commitment for increased and continued visitation,” and would leave the Children “vulnerable to [Father’s] residual parental rights.” Indeed, the court observed that, “under a permanent custody and guardianship order,” the Children’s “emotional and physical needs” would be “subsumed by [Father’s] residual rights.” The court offered its view that adoption would serve the Children’s needs better than guardianship would, because it “affords them the protection of ensuring that any future assessment of contact with [Father] will [be] considered solely from their respective points of view.” The court stated that, “[i]f the legal assessment for best interest and strictly necessary was from the parental perspective, permanent custody and guardianship with [Grandmother] would likely [be] the best solution.” But it observed that “the legal assessment of best interest and strictly necessary is focused solely upon the [C]hildren and their needs” and, viewing the situation from that perspective, the court concluded that termination of Father’s rights was strictly necessary to promote their best interest.

ISSUE AND STANDARD OF REVIEW

¶15      Father appeals the juvenile court’s termination order, and challenges the court’s conclusion that termination of his parental rights was strictly necessary to further the Children’s best interest. “We review a lower court’s best interest determination deferentially, and we will overturn it only if it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” In re A.H., 2022 UT App 114, ¶ 30, 518 P.3d 993 (quotation simplified), cert. granted, 525 P.3d 1279 (Utah 2023). But “we do not afford a high degree of deference to such determinations; rather, we simply apply the same level of deference given to all lower court findings of fact and fact-like determinations of mixed questions.” Id. (quotation simplified). Moreover, because the “evidentiary standard applicable in termination of parental rights cases” is “the clear and convincing evidence standard,” we will “assess whether the juvenile court’s determination that the clear and convincing standard had been met goes against the clear weight of the evidence.” Id. (quotation simplified); see also In re G.D., 2021 UT 19, ¶ 37, 491 P.3d 867 (“Whether the juvenile court correctly concluded there was no feasible alternative to terminating . . . [the father’s] parental rights is a mixed question of fact and law,” and “we review the juvenile court’s findings of fact for clear error and its conclusions of law for correctness, affording the court some discretion in applying the law to the facts.” (quotation simplified)).

ANALYSIS

¶16      “The right of parents to raise their children is one of the most important rights any person enjoys.” In re A.H., 2022 UT App 114, ¶ 31. Perhaps for this reason, our legislature has provided specific requirements that must be met before a parent’s rights may be terminated. First, at least one of the enumerated statutory grounds for termination must be present. See Utah Code § 80-4­301. Second, termination of parental rights must be in the best interest of the affected children. In re A.H., 2022 UT App 114, ¶ 32. “The party seeking termination of a parent’s rights bears the

burden of proof on both parts of this test,” and “that party must make this required showing by clear and convincing evidence.” Id. (quotation simplified).

¶17      At trial, Father did not contest the State’s assertion that at least one of the statutory grounds for termination of his parental rights was present. He did, however, contest the State’s assertion that termination was in the Children’s best interest. And his appellate challenge to the juvenile court’s termination order is similarly limited to the best-interest portion of the two-part test.

¶18      “The best-interest inquiry is wide-ranging and asks a court to weigh the entirety of the circumstances of a child’s situation, including the physical, intellectual, social, moral, and educational training and general welfare and happiness of the child.” In re J.J.W., 2022 UT App 116, ¶ 26, 520 P.3d 38 (quotation simplified). Our legislature has provided important guidance regarding the best-interest question. First, statutes emphasize the importance of maintaining familial relationships where possible. As a general rule, it is “in the best interest and welfare of a child to be raised under the care and supervision of the child’s natural parents.” Utah Code § 80-4-104(8). This is because “[a] child’s need for a normal family life in a permanent home, and for positive, nurturing family relationships is usually best met by the child’s natural parents.” Id. Therefore, “the juvenile court should only transfer custody of a child from the child’s natural parent for compelling reasons and when there is a jurisdictional basis to do so.” Id.see also In re A.H., 2022 UT App 114, ¶ 31 (stating that a parent’s “fundamental liberty interest in the care, custody, and management of the parent’s child . . . does not cease to exist simply because . . . a parent may fail to be a model parent” (quoting Utah Code § 80-4-104(1), (4)(a)(i))).

¶19      Next, our legislature requires that termination of parental rights be “strictly necessary.” Utah Code § 80-4-301(1). “Our supreme court has interpreted this statutory requirement to mean that ‘termination must be strictly necessary to promote the child’s best interest.’” In re A.H., 2022 UT App 114, ¶ 36 (quoting In re B.T.B., 2020 UT 60, ¶ 60, 472 P.3d 827). And as the juvenile court here correctly noted, this inquiry is to be conducted “from the child’s point of view,” and not from either the parent’s or the prospective adoptive family’s. See Utah Code §§ 80-4­104(12)(b), -301(1); see also In re B.T.B., 2020 UT 60, ¶¶ 25 n.5, 64 (stating that the “best interest analysis should be undertaken from the child’s point of view”). “[W]hen two placement options would equally benefit a child, the strictly-necessary requirement operates as a preference for a placement option that does not necessitate termination over an option that does.” In re G.D., 2021 UT 19, ¶ 75, 491 P.3d 867; see also In re J.J.W., 2022 UT App 116, ¶ 29 (“Courts must start the best interest analysis from the legislatively mandated position that wherever possible, family life should be strengthened and preserved, and if the child can be equally protected and benefited by an option other than termination, termination is not strictly necessary.” (quotation simplified)). Thus, the best-interest inquiry—informed by the “strictly necessary” requirement—“requires courts to explore whether other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights.” In re B.T.B., 2020 UT 60, ¶ 67 (quotation simplified). In particular, “courts should consider whether other less-permanent arrangements might serve the child’s needs just as well” as termination of the parent’s rights would. Id. (quotation simplified).

¶20    With these considerations in mind, we turn to the issue at hand: whether the State presented clear and convincing evidence that termination of Father’s rights was strictly necessary to promote the Children’s best interest. The juvenile court determined that the State had cleared this hurdle, and it based its best-interest determination largely on two subsidiary conclusions: (1) that the Children needed stability, which the court believed could be better provided through adoption than through a permanent guardianship arrangement, and (2) that the Children needed to be “protect[ed] against [Father’s] commitment for increased and continued visitation,” including protection against Father’s “residual rights,” which protection the court believed could be better provided through adoption than through a permanent guardianship arrangement. Father asserts that, on this record, these reasons constitute an insufficient basis to terminate his parental rights, and he maintains that the juvenile court’s determination was therefore against the weight of the evidence. We agree with Father.

¶21 The court’s first conclusion—that adoption affords a somewhat higher degree of stability than permanent guardianship does—is not, at a general level, a sufficient reason for terminating a parent’s rights. As our supreme court recently clarified, “categorical concerns” about stability are insufficient to warrant termination of parental rights so that an adoption may occur. See In re J.A.L., 2022 UT 12, ¶ 24, 506 P.3d 606. “If these categorical concerns were enough, termination and adoption would be strictly necessary across the board” because a “permanent guardianship by definition does not offer the same degree of permanency as an adoption” and “there is always some risk that the permanent guardianship could come to an end, or be affected by visitation by the parent.” Id.see also In re L.L.B., 2023 UT App 66, ¶ 23, 532 P.3d 592 (“Categorical concerns about the lack of permanence of an option other than adoption are not enough, otherwise termination and adoption would be strictly necessary across the board.” (quotation simplified)).

¶22 In this vein, we note again that permanent guardianship arrangements are themselves quite stable. See In re A.H., 2022 UT App 114, ¶ 55; see also In re J.J.W., 2022 UT App 116, ¶ 31 (noting that permanent guardianships “have certain hallmarks of permanency”). “A parent whose child has been placed in a permanent guardianship arrangement in a child welfare proceeding has no independent right to petition to change or dissolve the guardianship.” In re A.H., 2022 UT App 114, ¶ 55; see also Utah Code § 78A-6-357(3)(d). “Only the guardian has that right.” In re A.H., 2022 UT App 114, ¶ 55; see also Utah Code § 78A­6-357(3)(d). And a parent, in this situation, is entitled only to “reasonable parent-time” with the child. See Utah Code § 80-1-102(70)(a)(iv). A guardian who does not think that a parent’s parent-time request is “reasonable” may resist that request, and any disputes between the guardian and the parent about the scope of “reasonable” visitation will be resolved “by the court,” with the best interest of the child in mind. See id. It is simply not the case—as the State implies—that a parent in this situation may demand, and obtain, as much parent-time as the parent desires. There are, of course, meaningful marginal differences in permanence and control between adoption and guardianship, and in some cases, these differences might matter. But after In re J.A.L., courts focused on the virtues of stability and permanence may no longer rely on the categorical differences between the two arrangements, but must instead discuss case-specific reasons why the “added layer of permanency that adoptions offer” matters in the case at hand. See In re A.H., 2022 UT App 114, ¶ 53.

¶23      In this case, the juvenile court offered a case-specific reason for its focus on stability: it was concerned about Father’s “residual rights,” and specifically about Father’s “commitment for increased and continued visitation,” and it worried that, after Father’s release from prison, he might continue to have some “involvement in [the Children’s] lives.” We acknowledge that, in some cases, fear of a parent’s residual rights might reasonably counsel in favor of terminating that parent’s rights so that an adoption can take place. But this case is not one of those cases.

¶24      For starters, there is no indication that Father’s continuing relationship with the Children is harmful to them, rather than merely perhaps inconvenient. See In re L.L.B., 2023 UT App 66, ¶ 24 (reversing a court’s termination of parental rights in part because “there was no finding . . . that [the] [f]ather’s presence in [the child’s] life has affirmatively harmed” the child, and “there was no finding detailing how [the child’s] life was negatively affected or disrupted by [the] [f]ather’s attempts to exercise his parental rights”).[4] Indeed, the juvenile court accurately noted that “there were no allegations of abuse or neglect regarding [Father] at the time the [C]hildren were ordered into [DCFS] custody,” and the Children were found only “dependent”—not abused or neglected—as to him. And the court found that Father “was involved in” K.S.’s life “until he was about eight years old” and in D.S.’s life until she “was three”; that he “love[s] these [C]hildren”; and that he “expresses genuine love and affection for” them.

¶25                To be sure, Father’s incarceration has placed a great degree

of stress on the parent-child relationship. Because of his incarceration, Father was unable to care for the Children in their time of need when Mother abandoned them, and he was—as of the time of trial—still unable to assume custody of them. Father has, however, made a credible and determined effort to remain involved in the Children’s lives despite his incarceration. With Grandmother’s initial encouragement and assistance, virtual visits were arranged on a regular basis, and the juvenile court found that, “[a]t first, the [C]hildren were eager” to participate in those visits. Over time, however, the Children have lost their enthusiasm for the visits. But no party pins this loss of enthusiasm on Father’s behavior regarding those visits; he remains excited about the visits, and there is no evidence that Father has ever turned down (or not shown up for) an opportunity for visits, or that he has ever acted inappropriately during any visit. Indeed, the juvenile court specifically found that Father was “a good listener” during the visits, and Grandmother testified that Father was “very good at playing kitchen” with D.S.

¶26      The most anyone can say regarding any downside to these visits is that the Children find them boring or “uncomfortable” because they sometimes see other inmates in the background and because they do “not know what to do” during the visits. Grandmother has had to add some structure to the visits so that the Children have some things to talk about with Father; K.S. has turned to music, and D.S. to “playing kitchen.” On some occasions, the Children find the visits “difficult” and need comfort from Grandmother after the visits conclude, but there is no indication from the record that this difficulty arises from anything Father does or says during the visits; indeed, it seems that the difficulty arises simply from the fact that Father is in prison, a fact that makes communicating and bonding comparatively difficult and often awkward.

¶27 Given Father’s genuine efforts to maintain a meaningful relationship with the Children, as well as the absence of a “harmfulness” component to that relationship, we see no basis for the juvenile court’s view that the Children need “protections against [Father’s] commitment for increased and continued visitation.” As a general matter, we want parents to exhibit a commitment toward a positive and continued relationship with their children. See In re A.H., 2022 UT App 114, ¶ 55 (“Family life should be strengthened and preserved wherever possible, and . . . it is usually in the best interest and welfare of a child to be raised under the care and supervision of the child’s natural parents.” (quotation simplified)); see also In re B.T.B., 2018 UT App 157, ¶ 55, 436 P.3d 206 (“In many cases, children will benefit from having more people—rather than fewer—in their lives who love them and care about them . . . .”), aff’d, 2020 UT 60, 472 P.3d 827. All else being equal, there is inherent value and benefit—not only to the parent but to the children—in maintaining familial relationships, a fact that the juvenile court failed to discuss or account for. See In re J.J.W., 2022 UT App 116, ¶ 31 (noting the “benefit of preserving the familial relationships, as our legislature has commanded courts to do ‘wherever possible’” (quoting Utah Code § 80-4­104(12))). And a parent’s desire to build and maintain—coupled with efforts to actually maintain—a meaningful relationship with a child is a factor that will often weigh in favor of, and not against, a determination that it is in the child’s best interest to keep the relationship intact. See In re A.H., 2022 UT App 114, ¶ 55. As we read this record, Father should be commended—rather than chided—for maintaining love and affection for, and a desire to continue a meaningful relationship with, the Children despite his incarceration. And Father’s wish to have “visitation” with the Children after his release from prison should likewise have been viewed positively—or at least neutrally—rather than negatively in the context of the best-interest inquiry. See id. (“[W]e question whether—in many cases, including this one—a parent’s desire to re-engage in their child’s life should be viewed as negatively as the juvenile court appeared to view it.”).

¶28      All of this is especially true in this case, where the prospective adoptive parent is Father’s own mother. As Grandmother herself acknowledged, no matter the outcome of the case—whether adoption or guardianship—there will very likely be some sort of ongoing relationship between Father and the Children. That is, not even Grandmother believes that Father will (or necessarily should) be completely cut out of the Children’s lives; instead, she testified that, in the event she is allowed to adopt the Children, she would consult with “therapist[s]” and other “people that know more than” she does about appropriate visitation, and come to a decision about the level of Father’s involvement that she believes would be best for the Children. In another similar case, we defined the relevant question as follows: “[B]efore it may terminate [a parent’s] rights, the [juvenile] court must adequately explain why it is better for [the Children] to have [the parent] cut out of [their lives] forever than to have [the parent] remain involved in [their lives], perhaps with limited parent-time, pursuant to a guardianship arrangement.” In re J.J.W., 2022 UT App 116, ¶ 36. In cases like this one, where—given the identity of the prospective adoptive parent—nobody thinks Father really is going to be completely cut out of the Children’s lives as a practical matter, it becomes more difficult to establish that it is best for the Children for Father’s rights to be terminated.

¶29 Finally, we put almost no stock in the juvenile court’s finding that the Children “expressed a desire to be adopted by” Grandmother. In this context—termination cases in which the children are not in the physical custody of the parent in question—our law allows the court to consider “the child’s desires regarding the termination,” but only if the court “determines [that] the child is of sufficient capacity to express the child’s desires.” Utah Code § 80-4-303(1)(a). The issue of the capacity of the Children to express their desires was never discussed at trial, and the juvenile court made no determination that either one of the Children had sufficient capacity. At the time of trial, K.S. was eleven years old and D.S. was six years old. While the governing statute puts no absolute age threshold on when a child’s desires may be considered,[5] it is far from obvious that either of the Children—especially the six-year-old—were “of sufficient capacity” to express a meaningful opinion about the ultimate question in this case: whether Father’s rights ought to be terminated to facilitate an adoption or whether Father should retain certain rights through a guardianship arrangement. In parental termination cases, a court wishing to take a child’s desires into account should make a determination regarding the child’s capacity to express those desires; absent such a determination, the requirements of the statute are not met.

¶30 Moreover, even if the Children could be considered capable of offering meaningful testimony about their desires, there are evidentiary problems with the juvenile court’s finding on the subject: the trial testimony did not support any finding on this issue more specific than that the Children—quite understandably—wanted to remain in Grandmother’s care. Caseworker testified that the Children “would like to be adopted by” Grandmother, but she offered no additional details about her conversation with the Children. And Grandmother stated that she had discussed adoption with the Children, but she testified that D.S. responded, “That’s like the commercials on TV about adopting a dog.” And she acknowledged that the Children “have some misconceptions about” what adoption would mean, and that she had “tried to fix” those misconceptions. But no witness offered any testimony that could support a finding that either of the Children actually understood and appreciated the distinction between adoption and guardianship, and that, based on that understanding, they preferred adoption. In particular, no witness offered any testimony that either of the Children understood that, if an adoption were to occur, Father would lose all of his parental rights, and—relatedly—no witness offered any testimony that the Children actually wanted Father to lose all of his parental rights.[6]

¶31      In the end, the facts of this case simply don’t add up to strict necessity. Even though we review the juvenile court’s decision deferentially, we still must reverse when “the evidence presented at trial [does] not constitute clear and convincing evidence that termination of [the parent’s] rights . . . would be in the best interest of those children.” In re A.H., 2022 UT App 114, ¶ 38; see also In re L.L.B., 2023 UT App 66, ¶ 34 (reversing the district court’s decision where the “court’s conclusion that termination of [a father’s] parental rights was in [a child’s] best interest goes against the clear weight of the evidence”). With the appropriate “clear and convincing” evidentiary standard in mind, we conclude that the juvenile court’s decision in this case was against the clear weight of the evidence, and that the reasons upon which the court’s analysis relied were insufficient to support termination of Father’s rights.

¶32 We emphasize, however, that our decision is dependent upon the particular circumstances of this case. Those notable circumstances include the following: the juvenile court made no finding that Father’s relationship with the Children was abusive or harmful; the prospective adoptive parent is Father’s own mother; and Father will—in any event—likely have a relationship of some kind with the Children in the future. Moreover, there is no evidence that Father and Grandmother have the sort of relationship where he would be likely to exercise undue control over custody and care decisions in a guardianship arrangement. See In re J.J.W., 2022 UT App 116, ¶ 31 (noting that guardianship might be a viable option because, among other things, there was “no evidence in the record that would lead us to believe that [the guardians] would be particularly susceptible to undue influence from [the parent] as concerns seeking a change or dissolution of the guardianship”); see also In re A.H., 2022 UT App 114, ¶ 55. If the facts of the case were different, termination of Father’s parental rights might well have been justified. For instance, if Father’s relationship with the Children were abusive or detrimental, the situation would certainly be different. And we have previously noted that, where the prospective adoptive placement consists of non-relatives with no pre-existing relationship with the parent whose rights are at issue, a guardianship arrangement may be a poor fit. See In re J.P., 2021 UT App 134, ¶ 11, 502 P.3d 1247 (discussing with approval a lower court’s reasoning that permanent guardianship arrangements work best in situations where the parent and the guardian know each other and are “willing to work together to preserve [the] parent-child relationship” and “where the child has a healthy relationship with both the guardian and the parent,” and that such arrangements may not work as well in non-relative, foster-family placement situations). But on the facts presented at the termination trial in this case, a permanent guardianship arrangement serves the Children’s interest at least as well as adoption does, and therefore termination of Father’s parental rights is not strictly necessary to promote the Children’s best interest. See In re A.H., 2022 UT App 114, ¶ 49 (“If the two placements can each equally protect and benefit the child’s best interest, then by definition there does not exist clear and convincing evidence in favor of terminating a parent’s rights.” (quotation simplified)).

CONCLUSION

¶33      We reverse the juvenile court’s order terminating Father’s parental rights and remand the case for further proceedings consistent with this opinion. We note, as we have in similar cases, that “best-interest determinations are to be conducted in present-tense fashion, as of the date of the trial or hearing convened to consider the matter.” Id. ¶ 58. Our holding today is that, based on the evidence presented at trial in August 2022, termination of Father’s rights was not strictly necessary to promote the Children’s best interest. But the situation may well have changed since August 2022. In particular, we are aware that Father was scheduled to be released from prison in December 2022; the record submitted to us contains no information about whether that occurred as scheduled or, if so, what has happened since his release. If nothing has materially changed since the August 2022 trial, then we expect the court to enter an order establishing a permanent custody and guardianship arrangement, with the Children in Grandmother’s care, and to make appropriate rulings, as necessary, regarding the scope of Father’s reasonable visitation. But if there is evidence that matters have materially changed since the trial, the court may need to consider that evidence in some fashion, see In re Z.C.W., 2021 UT App 98, ¶ 15, 500 P.3d 94, and re-assess best interest, with its strictly necessary component, based on the situation at the time of the remand proceedings.


[1] The trial transcript is composed of just fifty-two pages. And the three witnesses’ testimony, in total, took just over an hour.

[2] The record submitted to us does not indicate whether Father was in fact released from prison on the anticipated date or, if so, whether Father has taken any steps to resolve his employment, housing, or immigration issues.

[3] At no point in its written ruling, or at any other time during the trial, did the court reference the 2014 “supported” allegations of abuse regarding the Children’s sibling. No witness testified about those allegations at trial. And while the protective order violations were mentioned in passing, no witness offered any testimony about the basis upon which the protective order was granted.

[4] As noted already, see supra note 3, no witness at trial mentioned the 2014 “supported” incident of abuse, and the protective order violations were discussed only in passing. Most importantly for present purposes, the juvenile court did not base any of its findings or conclusions on either of these incidents; in particular, it made no finding that either one was of such a nature as to render Father’s relationship with the Children harmful to them.

[5] Utah’s adoption statutes, by contrast, establish a specific age limit regarding when a child’s consent to adoption must be procured. See Utah Code § 78B-6-120(1)(a) (“[C]onsent to adoption of a child . . . is required from . . . the adoptee, if the adoptee is more than 12 years of age, unless the adoptee does not have the mental capacity to consent.”).

[6] In this vein, we note a general concern with evidence about a child’s desires regarding termination coming in through the testimony of a prospective adoptive parent. A much better practice is for such evidence to come in through either a proffer from a guardian ad litem—the attorney specifically hired to represent the interests of the child—or through the testimony of professional witnesses (e.g., mental health counselors) who presumably have training in discussing such topics with minors in a neutral way. By noting the absence of specific foundational evidence about the Children’s desires, we are in no way faulting Grandmother for apparently not asking additional follow-up questions of the Children regarding termination; indeed, this opinion should not be viewed as encouraging prospective adoptive parents to engage in conversations with children about termination of their natural parents’ rights.

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

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

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

In re K.R. – 2023 UT App 75

 

THE UTAH COURT OF APPEALS

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

PERSONS UNDER EIGHTEEN YEARS OF AGE.

R.S.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Per Curiam Opinion

No. 20230255-CA

Filed July 13, 2023

Third District Juvenile Court, Salt Lake Department

The Honorable Monica Diaz

No. 1207437

Kelton Reed and Lisa Lokken

Attorneys for Appellant

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

Verdoia, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

Before JUDGES MICHELE M. CHRISTIANSEN FORSTER, DAVID N.

MORTENSEN, and AMY J. OLIVER.

PER CURIAM:

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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2023 UT 11 – In Re C.D.S. And W.E.S – Appeal of Termination Parental Rights

2023 UT 11 – In re C.D.S. and W.E.S

IN THE SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH, in the interest of C.D.S. and W.E.S.,

persons under eighteen years of age.

A.S.,

Petitioner,

v.

STATE OF UTAH,

Respondent.

No. 20220580

Heard February 10, 2023

Filed June 8, 2023

On Certiorari to the Utah Court of Appeals

Eighth District Juvenile, Uintah County

The Honorable Ryan B. Evershed

Nos. 1178352, 1184710

Utah Court of Appeals, Salt Lake

No. 20220100

Attorneys:

K. Andrew Fitzgerald, Moab, for petitioner,

Sean D. Reyes, Att’y Gen., Carol L. C. Verdoia, John M. Peterson,

Asst. Atty’s Gen., Salt Lake City, for respondent

Martha Pierce, Salt Lake City, Guardian ad Litem for C.D.S.

and W.E.S.

ASSOCIATE CHIEF JUSTICE PEARCE authored the opinion of the Court,

in which CHIEF JUSTICE DURRANT, JUSTICE PETERSEN,

JUSTICE POHLMAN, and JUDGE CORNISH joined.

Having recused herself, JUSTICE HAGEN does not participate herein;

DISTRICT COURT JUDGE RITA M. CORNISH sat.

 

ASSOCIATE CHIEF JUSTICE PEARCE, opinion of the Court:

INTRODUCTION

¶1 The juvenile court terminated the parental rights of a mother and father. They each had fifteen days to appeal. Father appealed within that window. Mother filed her notice of appeal on the wrong side of the deadline. The court of appeals dismissed Mother’s appeal as untimely.

¶2 Mother argues that the court of appeals erred for a couple of reasons. We reject Mother’s argument that a minute entry that came after the court signed the final order restarted the clock on her time to appeal. But we agree with her that Utah Rule of Appellate Procedure 52(c)—together with Father’s timely appeal—extended her time to file a notice of appeal. We reverse and remand to the court of appeals.

BACKGROUND

¶3 In September 2019, the Division of Child and Family Services (DCFS) petitioned the juvenile court to remove two-year-old Chester from Mother and Father’s custody. At the time, Mother was pregnant with their second child, Winnie.[1]

¶4 The juvenile court placed Chester in the temporary custody of his aunt and uncle. The court also ordered DCFS to provide Mother and Father with reunification services.

¶5 After Winnie was born, DCFS initially allowed Winnie to stay with Mother and Father. A few months after Winnie’s birth, however, DCFS filed a “Motion for Expedited Placement and Temporary Custody” for Winnie. From the beginning of 2020 to the beginning of 2021, the juvenile court conducted several permanency and review hearings for the children. At the end of 2020, the court authorized Chester to live with Mother and Father in a trial home placement.

¶6 At a hearing a few months later, the juvenile court determined that, while Mother and Father had substantially complied with the reunification plan, reunification was not likely to be appropriate within the next ninety days. The court terminated DCFS’s reunification services and changed the children’s primary permanency goal from reunification to adoption.

¶7 In November 2021, the juvenile court held a trial. At the trial’s conclusion, the court indicated that it would enter an order terminating Mother’s and Father’s parental rights.

¶8 The juvenile court entered the written termination order (Termination Order) on January 7, 2022, which terminated Mother’s and Father’s parental rights. In it, the court detailed the grounds it relied upon to terminate Mother’s and Father’s parental rights. The juvenile court found that DCFS made reasonable efforts to provide reunification services to Mother and Father, and found that it was in the best interest of the children for Mother’s and Father’s parental rights to be terminated and for the children to be adopted.

¶9 The Termination Order stated: “This is a final and appealable order. There will be no further order after this as related to the parent’s [sic] parental rights.” It also informed Mother and Father that they had “15 days from the signing of this order to file a Notice of Appeal with the Juvenile Court.”[2]

¶10 On January 10, 2022, the juvenile court filed a minute entry titled “Minutes.”[3] The Minutes contained a condensed recitation of what had occurred at trial. Among other particulars, it detailed who was present in the courtroom, the names of those who testified, and the exhibits the court entered into evidence. The Minutes also contained several findings of fact and ordered the termination of Mother’s and Father’s parental rights.

¶11 On January 24, 2022, Father filed his notice of appeal.[4] On January 25, Mother’s trial counsel filed a notice of appeal.

¶12 The court of appeals determined that Mother’s appeal was not filed within fifteen days of the Termination Order, as Utah Rule of Appellate Procedure 52(a) requires. The panel dismissed the appeal for lack of jurisdiction. This court granted certiorari review.

¶13 Mother contends that her appeal was timely filed for at least one of two reasons. Mother first points to the Minutes that the court filed several days after it entered the written termination order. Mother argues that the minute entry constitutes a new appealable order and that she had fifteen days from the entry of that order to file her notice of appeal. The State and the guardian ad litem disagree.

¶14 Mother next asserts that the Utah Rules of Appellate Procedure allow her to file a notice of appeal within five days of Father’s timely filed notice. Rule 52(c) states that after a party files a notice of appeal, “any other party” may file its notice of appeal within five days. Mother asserts that she is “any other party” within the rule’s meaning. The State largely agrees with Mother’s argument. The guardian ad litem does not.

STANDARD OF REVIEW

¶15 “Whether jurisdiction is proper is a legal question that we review for correctness . . . .” State ex rel. A.C.M., 2009 UT 30, ¶ 6, 221 P.3d 185. The court of appeals based its decision on an interpretation of the Utah Rules of Appellate Procedure. “The interpretation of a rule of procedure is a question of law that we review for correctness.” Arbogast Family Tr. v. River Crossings, LLC, 2010 UT 40, ¶ 10, 238 P.3d 1035 (cleaned up).

ANALYSIS

I. THE MINUTE ENTRY DID NOT EXTEND MOTHER’S TIME TO APPEAL

¶16 The court of appeals held that it lacked jurisdiction over Mother’s appeal because it was filed outside the fifteen-day timeframe that Utah Rule of Appellate Procedure 52(c) provides. Mother argues that the court of appeals erred when it calculated the fifteen-day period from the entry of the Termination Order and not the subsequently entered Minutes. Mother argues that she is entitled to appeal from the Minutes and that her notice of appeal of that ruling was timely filed.

¶17 The State and the guardian ad litem argue that the court of appeals correctly held that the minute entry was not a separately appealable order. The State claims that the Minutes were “a mere ministerial document from which the judgment must be drawn” and that the minute entry was not an appealable order because it “was a belated entry that did not modify or change the substance of the Termination Order.” The guardian ad litem similarly argues that the Termination Order “triggered the timing for the notice of appeal” and that the minute entry was an inconsequential “after-the-fact ministerial document[].”

¶18 The clock to file a notice of appeal starts when “the court directs that no additional order need be entered.” Giusti v. Sterling Wentworth Corp., 2009 UT 2, ¶ 35, 201 P.3d 966. There can be no doubt that the Termination Order met this test. The Order stated: “There will be no further order after this as related to the parent’s [sic] parental rights,” and informed Mother and Father that they had fifteen days to appeal.[5]

¶19 This statement in the Termination Order alone, of course, does not answer the question this case presents. Mother asks what the effect is of a subsequently entered order on the same topic as a final appealable order. This is a question that we answered long ago. If one order starts to run the time for appeal, the entry of another order does not restart the clock if the later entry does not change the substance of the first.

¶20 For example, in Adamson v. Brockbank, we held that the defendants could file their appeal from an order amending an original judgment, even though the date to file a timely appeal from the original order had already passed. Adamson v. Brockbank, 185 P.2d 264, 268 (Utah 1947). The amended order corrected an inconsistency in the original judgment. Id. This correction clarified the liability of a defendant, an alteration we held was significant enough to change the character of the judgment. Id. We articulated the principle that, “where a belated entry merely constitutes an amendment or modification not changing the substance or character of the judgment, such entry . . . relates back to the time the original judgment was entered.” Id.

¶21 We relied on this holding in State v. Garner, 2005 UT 6, 106 P.3d 729. There, a modification to an original judgment clarified the nature of the defendant’s conditional plea in greater detail. Id. ¶ 12. But this was “a redundant addition, not a material change” and thus did not extend the time for Garner’s appeal. Id.¶¶ 11, 13.

¶22 Here, the Minutes did not amend or modify the substance of the Termination Order. The Minutes recited short findings of fact and repeated the conclusion that the parental rights be terminated. It did not change the parents’ rights or the children’s status. The minute entry did not amend or modify the Termination Order, so the time to appeal ran from the entry of the Termination Order. The court of appeals did not err when it rejected Mother’s argument.

II. RULE 52(C) EXTENDED MOTHER’S TIME TO APPEAL

¶23 Mother also argues that the court of appeals incorrectly concluded that Father’s appeal, filed one day before Mother’s, did not extend Mother’s time to appeal. The court of appeals held that rule 52(c) of the Utah Rules of Appellate Procedure “relates to cross-appeals, i.e., appeals filed by someone who has already been made a party to the appeal.” The court, therefore, held that Mother was “required to file her own timely appeal” because she “was not a party to Father’s appeal.”

¶24 Mother argues that rule 52(c) allows a party five days to file a notice of appeal from the date another party to the case files its notice of appeal.[6] The State agrees with Mother and contends the court of appeals incorrectly determined that “rule 52(c) did not render Mother’s notice of appeal timely.”[7] The State expresses uncertainty on whether Mother has initiated her own appeal or must be limited to the issues presented in Father’s appeal, but it still concludes that the “plain language of appellate rule 52(c) means that Mother has, at least, successfully initiated a cross-appeal.”[8]

¶25 “When we interpret a procedural rule, we do so according to our general rules of statutory construction.” Arbogast Family Tr. v. River Crossings, LLC, 2010 UT 40, ¶ 18, 238 P.3d 1035. In statutory construction, “our primary goal is to evince the true intent and purpose of the Legislature,” the “best evidence” of which “is the plain language of the statute itself.” Zilleruelo v. Commodity Transporters, Inc., 2022 UT 1, ¶ 18, 506 P.3d 509 (cleaned up). Thus, “[w]e interpret court rules, like statutes and administrative rules, according to their plain language.” Arbogast Family Tr., 2010 UT 40, ¶ 18 (cleaned up). Although we do this with the added wrinkle that, when we interpret the Utah Rules of Procedure, the intent we most often attempt to discern through the text is ours, and not the Legislature’s.

¶26 Rule 52(c) is straightforward: “If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 5 days after the first notice of appeal was filed.” UTAH R. APP. P. 52(c). Nothing in the language of the rule itself limits the phrase “any other party” the way the court of appeals did. That is, nothing in the plain text limits the rule’s reach to a party who is already part of the appeal.

¶27 The court of appeals’ reading of rule 52(c) appears to have been influenced by the rule’s title. We put the label “Time for cross-appeal” on that subsection. However, we have noted that “[t]he title of a statute is not part of the text of a statute, and absent ambiguity, it is generally not used to determine a statute’s intent.” Blaisdell v. Dentrix Dental Sys., Inc., 2012 UT 37, ¶ 10, 284 P.3d 616 (cleaned up). We are in what some would consider good company with that proposition. A prominent treatise on the topic counsels that a “title or heading should never be allowed to override the plain words of a text.” ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 222 (2012).[9]

¶28 It nevertheless appears the court of appeals relied on this title and imported the language “party to this appeal” into the rule, such that it would read: “If a timely notice of appeal is filed by a party, any other party [who was made party to the appeal] may file a notice of appeal within 5 days after the first notice of appeal was filed.” UTAH R. APP. P. 52(c).

¶29 As Mother points out, “[t]he rules do not define ‘a party’ as something different than those who were parties to the proceedings before the district or juvenile court.” The court of appeals’ dismissal incorrectly “would define ‘a party’ in the lower courts as different than ‘a party’ before the appellate courts on the same matter.”

¶30 Our reading of the rule is buttressed by how we understand rule 52(c) came to be. It is based on rule 4 of the Utah Rules of Appellate Procedure, which is, in turn, based on rule 4(a)(3) of the Federal Rules of Appellate Procedure.[10] See UTAH RULES OF APPELLATE PROCEDURE: WITH NOTES OF THE SUPREME COURT ADVISORY COMMITTEE 14 (1984) (on file with the Utah State Law Library) (stating that rule 4(d) “adopts substantially the time period and concept of cross-appeal in Rule 4(a)(3)” of the Federal Rules of Appellate Procedure).

¶31 Rule 4(a)(3) of the Federal Rules of Appellate Procedure gives a party fourteen days after another party appeals to file its appeal.[11] Wright and Miller’s treatise on federal procedure explains that rule 4(a)(3) allows any party to take advantage of the additional time to file a notice of appeal. “The 14-day provision is not limited to cross-appeals, and plainly encompasses appeals by other parties such as co-parties or third-party defendants.” 16A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE: JURISDICTION § 3950.7 (5th ed. 2022) (Westlaw).[12]

¶32 This interpretation reflects the views of the advisory committee. When the committee recommended a substantive amendment to this rule, it noted:

The added time which may be made available by the operation of the provision is not restricted to cross appeals in the technical sense, i.e., to appeals by parties made appellees by the nature of the initial appeal. The exception permits any party to the action who is entitled to appeal within the time ordinarily prescribed to appeal within such added time as the sentence affords.

Advisory Committee Note to 1966 Amendments to Federal Rule of Civil Procedure 73(a), 39 F.R.D. 69, 131 (1966) (amending then rule 73(a) of the Federal Rules of Civil Procedure, a rule later incorporated into the appellate rules).

¶33 In other words, if Mother were in federal court, or in a non-child welfare case in a Utah court, her appeal would undoubtedly be timely filed under rules that in all aspects—other than title and time frame—mirror rule 52(c). The only part of rule 52(c) that suggests a different result is the title, and, as we have noted, we don’t use titles that way.

¶34 And here, there is additional reason to believe that we did not intend to use the rule’s title to work a substantive limitation on the rule’s text. In 2003, the Advisory Committee on the Utah Rules of Appellate Procedure heard from an assistant attorney general in the Child Welfare Division who “described child welfare proceedings and the need to expedite appeals from parental rights terminations” to “help stabilize” children’s lives. Approved Minutes, SUPREME COURT’S ADVISORY COMMITTEE ON THE UTAH RULES OF APPELLATE PROCEDURE, ADMINISTRATIVE OFFICE OF THE COURTS (hereinafter Approved Minutes, SUPREME COURT’S ADVISORY COMMITTEE) (Nov. 19, 2003).

¶35 The need for speed was reiterated at a 2017 committee meeting, which discussed amendments to rule 52 and other child welfare appellate rules. The minutes of that meeting laid out that “[t]he purpose of these amendments is to expedite adoption and termination of parental rights appeals from the district courts and put them on the same footing as appeals from child welfare proceedings in the juvenile courts.” Approved Minutes, SUPREME COURT’S ADVISORY COMMITTEE (Sept. 7, 2017).

¶36 The rules committee also discussed the relationship between rule 52 and rule 4 when a member “proposed, and the committee agreed, that Rule 52 should be amended to make it consistent with the recent changes that were approved to Rule 4(b).” Approved Minutes, SUPREME COURT’S ADVISORY COMMITTEE (May 5, 2016). Thus, it appears the drive behind these rules was not to have rule 52(c) exclude certain appeals that rule 4 includes but to maintain the structure of rule 4 while expediting child welfare proceedings.[13]

¶37 The guardian ad litem offers a different interpretation of the rule than Mother, the State, and the court of appeals. She avers that Mother was a party to her own termination proceedings but was never, even at the district court level, a party to Father’s termination proceedings. The guardian ad litem thus contends that Mother was not “any party” in the context of the rule because she was not a party to the proceedings Father appealed.

¶38 The guardian ad litem supports this argument with something we said in State ex rel. A.C.M. There, we noted that we “treat the termination of each parent’s rights separately for purposes of finality and appealability.” State ex rel. A.C.M., 2009 UT 30, ¶ 12, 221 P.3d 185. The guardian ad litem in A.C.M. claimed that the order terminating the father’s parental rights was not a final order because the mother’s rights had not yet been terminated. Id. We reasoned that the order terminating the father’s rights was “final and appealable because it constitute[d] a change in the child’s status” with respect to the father. Id. That also prompted the observation on which the guardian ad litem relies.

¶39 We stand by the observation that we can treat the termination of each parent’s rights separately for the purposes of finality and appealability. But that is not to say that parents cannot be parties to the same case. And A.C.M. says nothing about the applicability of rule 52(c) when the system adjudicates both parents’ rights in the same action and addresses them in the same order.

¶40 The guardian ad litem claims that there was one termination proceeding for Father and a separate one for Mother—and that the juvenile court consolidated these cases without making either parent party to the other’s case. The record before us does not bear that out. A separate case was initiated relating to each child. Mother and Father were parties in both cases. The juvenile court consolidated Chester’s case and Winnie’s case, though each case maintained its own case number. The court did not—indeed, it could not— consolidate the parents’ cases, because those cases did not exist. The court conducted a single trial in which both Mother and Father presented evidence and arguments. That trial resulted in a single order that lists both Mother and Father as parties.

¶41 On these facts, we have no trouble concluding that Mother was “another party” within the meaning of Utah Rule of Appellate Procedure 52(c) and is entitled to the additional five days to file a notice of appeal.[14]

III. WE DECLINE TO ADDRESS MOTHER’S CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL

¶42 Mother spends a considerable portion of her brief arguing that her appeal should be considered timely because her counsel was ineffective for filing past the fifteen-day deadline. Mother also argues she was prejudiced by her denial of the right to appeal.

¶43 Mother asked us to grant certiorari review on this issue. We did not. We note for future reference that an order that does not grant certiorari on an issue is a pretty good signal that we do not intend to address the question.[15]

CONCLUSION

¶44 The court of appeals correctly ruled that the time for Mother to file her appeal ran from the entry of the Termination Order and not the subsequent Minutes. The court of appeals erred when it concluded that Utah Rule of Appellate Procedure 52(c) only applied to parties filing a cross-appeal. Mother timely filed her notice of appeal. We reverse and remand to the court of appeals to consider Mother’s appeal.

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

 

[1] Chester and Winnie are pseudonyms.

[2] The Utah Rules of Appellate Procedure provide the fifteen-day timeline in child welfare proceedings. Rule 52(a) states that in this setting, a notice of appeal “must be filed within 15 days of the entry of the order appealed from.” UTAH R. APP. P. 52(a).

[3] As we march through our analysis, we will refer to this document as both the minute entry and the Minutes.

[4] The fifteenth day was Saturday, January 22, 2022. By operation of rule 22(a) of the Utah Rules of Appellate Procedure, which does not require parties to file on Saturdays and Sundays, the time for filing the petition was extended to the following Monday, January 24. See UTAH R. APP. P. 22(a).

[5] Mother questions whether our precedent on the finality of orders applies to child welfare proceedings. It generally does, though our rules and precedent make some distinction between child welfare and non-child welfare cases. For example, rule 58A of the Utah Rules of Civil Procedure requires that “[e]very judgment and amended judgment must be set out in a separate document.” There is no such requirement in child welfare proceedings. See UTAH R. APP. P. 52(a); State ex rel. A.C.M., 2009 UT 30, ¶ 10, 221 P.3d 185. But no rule or precedent alters the conclusion that a belated entry or modification that does not change the substance of a final order does not create a new final and appealable order.

[6] Rule 52(c) of the Utah Rules of Appellate Procedure, titled “Time for cross-appeal,” reads:

If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 5 days after the first notice of appeal was filed, or within the time otherwise prescribed by paragraphs (a) and (b) of this rule, whichever period last expires.

[7] The State—both in its briefs and during oral argument— acknowledges that rule 52(c)’s plain language supports Mother’s argument. We commend the State for its candor.

[8] The guardian ad litem disagrees for reasons we will discuss and dismiss in a page or two.

[9] That is not to say that titles are irrelevant. When “we need help understanding an ambiguous provision, titles are persuasive and can aid in ascertaining the statute’s correct interpretation and application.” Graham v. Albertson’s LLC, 2020 UT 15, ¶ 24, 462 P.3d 367 (cleaned up). We just don’t use titles to create ambiguity. This is because titles are generally shorthand descriptions of what is to follow and can miss some of the complexities of the text to come.

[10] Utah Rule of Appellate Procedure 4 states, in relevant part: “If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days after the date on which the first notice of appeal was filed.” UTAH R. APP. P. 4(d). Unlike rule 52(c), it gives “any other party” fourteen days (instead of five) to file an appeal. In addition, rule 4(d) is titled “Additional or cross-appeal” rather than “Time for cross-appeal.” Compare UTAH R. APP. P. 4(d), with UTAH R. APP. P. 52(c).

[11] The federal rule bears the title “Multiple Appeals.” FED. R. APP. P. 4(a)(3).

[12] Other treatises echo this understanding. See, e.g., JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE: CIVIL § 304.11 (2023) (LexisNexis) (“This provision is not restricted, however, to parties named as appellees in the initial appeal.”); 18 BENDER’S FEDERAL PRACTICE FORMS, COMMENT ON APPELLATE RULE 4 (2022) (LexisNexis) (“This provision is not restricted to parties named as appellees in the initial appeal. Any party to the action is entitled to the benefit of the additional 14-day period.”). This is also the way several federal cases have interpreted the rule. See, e.g.N. A,ii. Sav. Ass’n v. Metroplex Dev. P’ship, 931 F.2d 1073, 1077–78 (5th Cir. 1991); Melton v. Frank, 891 F.2d 1054, 1056 n.1 (2d Cir. 1989); Jackson Jordan, Inc. v. Plasser A,ii. Corp., 725 F.2d 1373, 1374–76 (Fed. Cir. 1984).

[13] We encourage the Advisory Committee on the Utah Rules of Appellate Procedure to look at clarifying the title so it better reflects the rule’s language and intent.

[14] 14 There is logic underlying rule 52(c). There may be occasions when a party’s calculus on whether to file an appeal may be impacted by another party’s decision to appeal. Using the facts of this case, for example—and we stress that this is a hypothetical and not a reflection of what we think actually occurred—it is entirely possible that a person in Mother’s position might decide not to appeal the termination of her parental rights if she thinks it will only delay adoption of the children. Mother’s thinking could dramatically change if her co-parent appeals and the possible outcomes include not only adoption, but restoration of Father’s parental rights and not hers. In that case, it makes sense that our rules would give Mother a few additional days to assess the changed landscape and decide whether to appeal.

[15] The guardian ad litem advocates that we task our rules committee with considering a new rule that would “reinstate the time for appeal in child welfare cases where a parent’s right to effective counsel is implicated.” We have previously recognized that a trial court may extend the time for appeal in a proceeding on termination of parental rights if a parent was denied effective assistance of counsel. State ex rel. M.M., 2003 UT 54, ¶¶ 6, 9, 82 P.3d 1104. But this is not the same as a rule that says the court shall reinstate the time for appeal when a parent can show that they have been denied effective representation. We encourage the Advisory Committee on the Utah Rules of Appellate Procedure to explore such a rule, and we thank the guardian ad litem for the excellent suggestion.

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2023 UT App 55 – In re F.C.G.

2023 UT App 55 – In re F.C.G.

THE UTAH COURT OF APPEALS

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

A PERSON UNDER EIGHTEEN YEARS OF AGE.

L.C.G.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Per Curiam Opinion

No. 20221129-CA

Filed May 25, 2023

Third District Juvenile Court, Salt Lake Department

The Honorable Monica Diaz

No. 1205462

Julie J. Nelson Attorney for Appellant

Sean D. Reyes and John M. Peterson,

Attorneys for Appellee

Martha Pierce Guardian ad Litem

Before JUDGES GREGORY K. ORME,

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

PER CURIAM:

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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In re J.L… 2022 UT 12 – termination of parental rights

2022 UT 12 

IN THE SUPREME COURT OF THE STATE OF UTAH 

STATE OF UTAH, in the Interest of J.A.L. and J.O.L.,
Persons Under Eighteen Years of Age 

J.L. and J.A.,
Appellants, 

STATE OF UTAH,
Appellee. 

No. 20200271 

Heard September 16, 2021
Filed February 24, 2022 

On Certification from the Court of Appeals 

Fifth District Juvenile, Iron County
The Honorable Troy A. Little
No. 1161641, 1161642 

Attorneys:1  

Alexandra Mareschal, J. Frederic Voros, Jr., Julie J. Nelson, Salt Lake
City, Christa G. Nelson, Cedar City, for appellant J.L. 

Colleen K. Coebergh, Salt Lake City, Candice N. Reid, Cedar City,
for appellant J.A. 

Sean D. Reyes, Att’y Gen., Carol L. C. Verdoia, John M. Peterson,
Asst. Att’ys Gen., Salt Lake City, for appellee 

Martha Pierce, Salt Lake City, Guardian ad Litem
for J.A.L. and J.O.L. 

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 This is an appeal from a juvenile court order terminating the parental rights of the mother and father of two children. The Division of Child and Family Services has been engaged with this family since at least July 2018. A range of support services has been provided over time. The children were removed from the mother’s custody in December 2018 and placed in foster care. And at various times both the father and mother have been subject to a court order prohibiting contact between them and to orders requiring treatment for domestic violence, substance abuse, and mental health issues. 

¶2 The Division initially pursued a permanency goal of reunification with the parents. When reunification failed, the Division petitioned to change the goal to adoption. After a hearing and an order granting the new permanency goal, the children were moved to a kinship placement with the father’s brother in Arkansas. The uncle had agreed to adopt the children. And after a subsequent hearing on the termination of parental rights, the juvenile court entered an order terminating the parental rights of both the mother and father. 

¶3 In the termination proceeding, the juvenile court found that both parents were “unfit” and had “neglected” the children. The court based its determination on factors listed in Utah Code section 78A-6-508(2)—concluding that the children were “abused and neglected” by “[t]he domestic violence perpetrated by the Father and the Mother’s failure to protect the children,” and that the parents’ substance abuse “render[ed] [them] unable to care for the children.” 

¶4 After finding statutory grounds to terminate, the court determined that termination was “strictly necessary” in the “best interest” of the children. It concluded that the children could not be returned home “today”—or “at this point”—because the mother and father had failed to sufficiently rehabilitate themselves. And it held that the children’s “tremendous need for permanency and stability” could not be met while preserving the parents’ rights within a permanent custody and guardianship arrangement. 

¶5 Six weeks after the termination order was entered, the adoptive placement with the uncle failed. The children returned to state custody in Utah. 

¶6 After the kinship placement failed, the father and mother filed motions for post-judgment relief. The mother sought 60(b)(6) relief in light of the “extraordinary circumstances” of the failure of the kinship placement. The father filed a 60(b)(6) motion on the same grounds. He also sought relief under 60(b)(5), asserting that the failed kinship placement meant that the judgment was “no longer equitable.” The juvenile court denied the motions. 

¶7 The mother and father appealed. The court of appeals certified the matter to this court based on a perceived need for our review of “a challenge to the current appellate standard of review in child welfare proceedings” and to consider “an issue regarding the effect of statutory changes on supreme court case law.” 

¶8 The mother and father raise different claims of error on appeal. The mother challenges only the juvenile court’s findings, made at an evidentiary permanency hearing and allegedly at a subsequent review hearing, that she appeared “under the influence” at various hearings. She asserts that a judge is not qualified to make such findings without expert testimony. And she contends that the court denied her due process of law by making the findings without giving her notice and an opportunity to be heard. 

¶9 The father challenges the juvenile court’s best interest determination2 and the court’s denial of his motions for post-judgment relief. As an initial matter, the father asks us to conduct de novo review of termination proceedings—and overturn the deferential standard of review established in State ex rel. B.R., 2007 UT 82, 171 P.3d 435. He also asks us to require specific factual findings and legal conclusions in parental rights termination orders. Regardless of our decision on the appropriate standard of review, the father contends that the juvenile court erred in concluding that termination of the father’s rights was “strictly necessary” to promote the “best interest” of the children. 

¶10 We affirm in part and reverse and vacate in part. First, we note that the mother’s claims are unpreserved and hold that she has failed to carry the burden of establishing plain error. Second, we reject the father’s request that we abandon a deferential standard of review of a best interest determination but find threshold legal errors in the juvenile court’s best interest analysis—in the assessment of whether the father had made sufficient progress in his rehabilitation under Utah Code section 78A-6-509(1)(b), and in the assessment of whether termination of parental rights is “strictly necessary” under Utah Code section 78A-6-507. Third, we vacate and remand for a new best interest determination under the law as clarified in this opinion. In so doing, we note that the mother failed to highlight the legal errors identified by the father in her briefs on appeal but conclude that the mother’s rights should be on the table on remand in the unique circumstances of this case. 

I 

¶11 The mother challenges the juvenile court’s findings that she appeared “under the influence” at court hearings. She asserts that the judge is not qualified to make such findings without expert testimony. And she claims that the court infringed her right to due process by making these findings without notice that the observations were being made and without affording her an opportunity to respond. 

¶12 None of these points was preserved in the juvenile court, however. To succeed on appeal, the mother would therefore need to make a showing of plain error—that “(1) an error exists; (2) the error should have been obvious to the trial court; and (3) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome.” State v. Low, 2008 UT 58, ¶ 20, 192 P.3d 867 (citations and internal quotation marks omitted).3 And the mother has failed to carry that burden. 

¶13 We have previously upheld a juvenile court’s legal conclusions based on observations of “outbursts” made in open court. In re T.E., 2011 UT 51, ¶¶ 44–45, 266 P.3d 739. And the juvenile court in this case did not even go so far as to make a legal conclusion. It relied on its observation of the mother in court to require her to be subjected to testing for substance use—a follow-up under a standing order requiring ongoing substance abuse testing.4 So we do not see how it could have been error—and certainly not an obvious error—for the court to use its observations as a basis for such testing where the mother’s sobriety was already at issue. 

¶14 Nor do we see a basis for concluding that any alleged error was prejudicial. In the termination order, the court refers to its “personal observations” of the mother only once—as a single consideration in a set of reasons supporting one of the five grounds for termination found by the court. And earlier in the proceedings, the court continued reunification services for the mother despite making a concurrent finding that “[t]hree quarters of the times the Mother is in court it appears she [is] under the influence of drugs”— and despite terminating reunification services as to the father in the same evidentiary permanency hearing. The mother has not established that there is any likelihood that her parental rights would not have been terminated if the juvenile court had not ordered testing on the basis of its observations, or if it had afforded the mother the right to respond that she asserts as a matter of due process. 

II 

¶15 The father challenges the termination of his parental rights on two grounds. He contends that the juvenile court erred in (a) concluding that termination of his rights was “strictly necessary” in the “best interest” of the children; and (b) denying his motions for post-judgment relief. We reverse on the first ground and decline to reach the second because it is mooted by our threshold decision. 

A 

¶16 The father prefaces his challenge to the juvenile court’s best interest analysis with a request that we overrule our longstanding case law on the standard of review of parental rights termination orders—requesting that we replace the established deferential standard of review with a de novo review for correctness. But we rejected parallel requests in two recent decisions. See In re G.D., 2021 UT 19, ¶¶ 1, 3, 491 P.3d 867; State ex rel. E.R., 2021 UT 36, ¶ 13, 496 P.3d 58. And the father has not identified a persuasive ground for reconsidering these decisions. 

¶17 In E.R. we clarified that the best interest inquiry is a fact-like “mixed determination of law and fact” that is subject to deferential review. 2021 UT 36, ¶¶ 17, 22. Appellate deference, of course, is not absolute. The juvenile court’s best interest analysis may be set aside if it is “against the ‘clear weight of the evidence.’” Id. ¶ 6. It is also subject to reversal where it is premised on a threshold legal error. See id. ¶ 16 (noting that we “afford [n]o deference” to the juvenile court’s “analysis of abstract legal questions” (alteration in original) (citation and internal quotation marks omitted)). 

¶18 We reverse the juvenile court’s termination of the father’s parental rights on this basis. The juvenile court’s order was infected by two legal errors. And those errors foreclose the usual basis for deference to the conclusion that termination of the father’s rights was “strictly necessary” in the “best interest” of the children under Utah Code section 78A-6-507(1) (2020).5 See Rocky Ford Irrigation Co. v. Kents Lake Reservoir Co., 2020 UT 47, ¶ 78, 469 P.3d 1003 (citation omitted) (holding that a district court’s findings were not owed deference where they were “infected by legal error”). 

1 

¶19 In terminating the father’s parental rights, the juvenile court concluded that it would be “neglectful” to “[r]eturn[] the children to the Father today.” (Emphasis added.) It also found that a reunification of the children with the father would introduce a significant “safety risk” “at this time.” (Emphasis added.) And it raised the concern that the father might not “be successful outside of treatment” given the lack of “any indication of future success” based on “the Father’s past.” 

¶20 These statements are premised on legal error. In a case where the child is not in the parent’s physical custody, the court must consider a set of “specific considerations” in assessing whether termination is strictly necessary in the best interest of children. UTAH CODE § 78A-6-509. And the listed considerations include “the effort the parent or parents have made to adjust their circumstances, conduct, or conditions to make it in the child’s best interest to return [the child to the] home after a reasonable length of time.” Id. § 78A-6509(1)(b) (emphasis added). 

¶21 The statute does not establish a specific timeframe for parents to “adjust their circumstances, conduct, or conditions.” But it does afford a parent a “reasonable length of time” to make any necessary adjustments. And that requires the court to consider whether any needed adjustments were made within a reasonable time. 

¶22 The court retains a measure of discretion in deciding on the length of the “reasonable” time.6 But by statute it must exercise that discretion. And the juvenile court failed to do so here. It held that the father “ha[d] failed to appropriately adjust” his “circumstances, conduct, or conditions to make return in the children’s best interest.” In so doing, it failed to consider whether he had had a “reasonable length of time” to do so.7 And it exacerbated the problem by focusing on static assessments that it would be “neglectful” to “[r]eturn[] the children to the Father today” and would introduce a significant “safety risk” if they returned to him “at this time.” 

2 

¶23 The juvenile court also premised its termination decision on concerns about the “tremendous need for permanency and stability” of the children. It considered the possibility of preserving the father’s legal rights while awarding permanent custody to a guardian. But it rejected that move on the ground that it “would not . . . offer the same degree of permanency as an adoption,” given that a permanent guardianship could be terminated at the request of the guardian or at least subject to visitation by the father. And it held that this “lack of stability would be harmful for the children.” 

¶24 This too was error. The court was right to consider the feasibility of a permanent guardianship. See In re B.T.B., 2020 UT 60, ¶¶ 66–67, 472 P.3d 827 (explaining that the “strictly necessary” analysis requires consideration of the possibility of “feasible options” like awarding custody to a permanent guardian (citation and internal quotation marks omitted)). But it fell into legal error in concluding that this option would not provide the “same degree of permanency as an adoption.” That is not the question under our law. A permanent guardianship by definition does not offer the same degree of permanency as an adoption. And there is always some risk that the permanent guardianship could come to an end, or be affected by visitation by the parent. If these categorical concerns were enough, termination and adoption would be strictly necessary across the board. But such categorical analysis is not in line with the statutory standard. 

¶25 By statute, the juvenile court must assess whether a permanent guardianship can “equally protect[] and benefit[]” the children in the case before it. G.D., 2021 UT 19, ¶ 75 (citation omitted). That standard is not met by the categorical concern that a permanent guardianship is not as stable or permanent as an adoption. It requires analysis of the particularized circumstances of the case before the court. No such analysis is presented here. And the court’s categorical dismissal of the possibility of a permanent guardianship is a further ground for reversal of the juvenile court’s decision. 

B 

¶26 The above legal errors undermine our confidence in the juvenile court’s basis for terminating the father’s parental rights. They also foreclose the need for us to consider the father’s challenge to the denial of his motions for post-judgment relief. The correctness of the denial of those motions is mooted by our decision to reverse in light of the legal errors in the parental termination order. 

III 

¶27 The father has established that the juvenile court’s termination order was infected by the above-noted legal errors. That leaves the question of the effect of those errors on our disposition on appeal. We conclude that a remand to the juvenile court is appropriate. And we hold that both parents’ legal rights should be on the table on remand. 

A 

¶28 The juvenile court’s threshold legal errors foreclose the usual basis for deference to its factual findings and mixed determinations. In the face of such errors, an appellate court has at least two options. It may reverse and remand to the lower court for rehearing under a correct legal standard.8 Or it may review the lower court’s findings under a non-deferential standard of review.9 We take the former course of action here in light of the important role that our juvenile courts play in applying a complex body of law to a matter encompassing an extensive factual and procedural record. 

B 

¶29 In the parties’ briefing on appeal, only the father identified the above-noted legal errors as a basis for reversal. The mother’s appeal was limited to her challenge to the juvenile court’s findings that she appeared “under the influence” in court. 

¶30 The father urges this as a basis for concluding that the mother is foreclosed from participating in the proceedings on remand, or from having her rights on the table in a new “best interest” analysis in line with the refinements in our law set forth above. See supra ¶¶ 21–22, 24–25. He notes that a claim is generally waived if not raised on appeal. See State v. Johnson, 2017 UT 76, ¶¶ 15–16, 416 P.3d 443. And he asks us to hold that the mother forfeited her stake in a remand under claims of legal error that she failed to advance on appeal. 

¶31 The father’s position finds some threshold footing in our law. As a general rule, our courts respect the prerogatives of the parties in deciding which claims to pursue (or forgo) in litigation. See Utah Stream Access Coalition v. VR Acquisitions, LLC, 2019 UT 7, ¶¶ 36–37, 439 P.3d 593. In deference to those prerogatives, and in the interest of judicial economy and repose, the parties are generally stuck with the moves they make in litigation. Patterson v. Patterson, 2011 UT 68, ¶¶ 15–17, 266 P.3d 828. Our courts do not lightly second-guess the parties by reviving a claim they have forfeited by their pleading or briefing decisions.10  

¶32 The mother presumably would be foreclosed from participating in the proceedings on remand if she had failed to file an appeal.11 But the mother did file an appeal. And the father has cited no case law that controls in the unusual circumstances presented here—where two appellants filed briefs on appeal and one of them has identified a legal error that affected not just both of the appellants but also the interests of other parties to this proceeding (the children). 

¶33 In these circumstances, we are reluctant to give conclusive, controlling effect to the briefing decisions of the parties. The juvenile court’s legal missteps infected its decision to terminate both the father’s and the mother’s legal rights.12 And those missteps may bear significant consequences not just for the parents but for their children. The rights and interests of the parents and the children are not only substantial but intertwined. On remand, the decision whether to terminate one parent’s rights could be affected by the decision whether to terminate the other’s rights. And the decision whether one or both parents should retain their rights may have substantial bearing on the analysis of the best interest of the children.13  

¶34 With these concerns in mind, we conclude that the mother’s briefing decisions should not foreclose her from participating in the case on remand. Both parents’ legal rights should be on the table. 

¶35 In remanding, we are not foreclosing the possibility that concerns expressed in the juvenile court’s order—such as the risk and effects of domestic violence—may be a sufficient basis for termination of the parents’ legal rights. Nor are we suggesting that the parents have not yet had a “reasonable length of time” to adjust their “circumstances, conduct, or conditions.” On these and other points, we are simply holding that the juvenile court’s opinion is too affected by legal error to merit deference on appeal. And we are sending the matter back to the juvenile court to exercise its discretion under a correct formulation of the law. 

IV 

¶36 We vacate the juvenile court’s order terminating the parental rights of the parents. In so doing, we leave in place any threshold orders not challenged on appeal—such as the court’s order establishing the parents’ unfitness. But we remand the case for rehearing on the question whether termination of their parental rights is strictly necessary in the best interest of the children, under the governing legal standard as clarified in this opinion. 

http://www.utcourts.gov/opinions/view.html?court=supopin&opinion=In re J.L…20220224.pdf 

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

In re J.P. – 2021 UT App 134

2021 UT App 134

THE UTAH COURT OF APPEALS

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

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

Opinion

No. 20210185-CA

Filed December 9, 2021

Fifth District Juvenile Court, Cedar City Department

The Honorable Troy A. Little

No. 1170183

Colleen K. Coebergh, Attorney for Appellant

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

Martha Pierce, Guardian ad Litem

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

HARRIS, Judge:

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

BACKGROUND

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

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

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

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

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

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

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

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

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

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

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

ISSUE AND STANDARD OF REVIEW

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

ANALYSIS

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

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

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

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

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

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

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

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

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

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

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

CONCLUSION

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

——————————————————

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

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

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

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

2021 UT App 134 

THE UTAH COURT OF APPEALS 

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

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

Opinion 

No. 20210185-CA 

Filed December 9, 2021 

Fifth District Juvenile Court, Cedar City Department 

The Honorable Troy A. Little 

No. 1170183 

Colleen K. Coebergh, Attorney for Appellant 

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

Martha Pierce, Guardian ad Litem 

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

HARRIS, Judge: 

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

BACKGROUND 

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

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

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

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

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

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

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

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

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

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

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

ISSUE AND STANDARD OF REVIEW 

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

ANALYSIS 

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

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

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

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

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

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

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

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

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

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

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

CONCLUSION 

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

 

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

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

In re A.H. – 2021 UT App 57 

THE UTAH COURT OF APPEALS 

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

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

Opinion 

No. 20190846-CA 

Filed May 28, 2021 

Third District Juvenile Court, Salt Lake Department 

The Honorable Mark W. May 

No. 1148287 

Colleen K. Coebergh, Attorney for Appellant 

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

Martha Pierce and Dixie Jackson, Guardians ad Litem 

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

POHLMAN, Judge: 

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

BACKGROUND1  

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

The Initial Verified Child Welfare Petition 

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

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

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

The Period of Reunification Services 

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

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

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

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

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

The Petition to Terminate Parental Rights and the Termination Trial 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ISSUES AND STANDARDS OF REVIEW 

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

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

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

ANALYSIS 

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

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

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

  1. Ineffective Assistance

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

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

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

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

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

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

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

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

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

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

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

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

  1. Reunification Efforts

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

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

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

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

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

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

III. Grounds for Termination 

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

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

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

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

CONCLUSION 

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

 

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

 

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

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

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

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

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

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

Opinion
No. 20200227-CA
Filed March 12, 2021

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

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

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

HAGEN, Judge:

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

BACKGROUND

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

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

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

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

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

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

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

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

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

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

. . .

. . . .

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

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

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

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

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

ISSUE AND STANDARD OF REVIEW

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

ANALYSIS

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

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

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

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

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

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

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

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

Utah Code Ann. § 78A-6-507(1)(d).

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

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

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

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

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

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

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

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

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

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

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

CONCLUSION

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

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

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

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

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

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

regarding the ultimate issue of unfitness.”

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

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In re K.T.B. – 2020 UT 51 Utah Code § 78B-6-110 strict compliance unconstitutional

2020 UT 51 – In re K.T.B.

This opinion is subject to revision before final publication in the Pacific Reporter

IN THE SUPREME COURT OF THE STATE OF UTAH
IN THE MATTER OF THE ADOPTION OF K.T.B
A PERSON UNDER EIGHTEEN YEARS OF AGE
V.B., Appellant,
v.
A.S.A. and J.K.A., Appellees.

No. 20150821
Heard May 12, 2017
Remand Disposition Received March 8, 2018
Filed July 21, 2020

On Direct Appeal
First District, Logan
The Honorable Kevin K. Allen
No. 152100025

Attorneys:
Diane Pitcher, Ryan L. Holdaway, Logan, for appellant
Paul H. Gosnell, Logan, for Appellees

CHIEF JUSTICE DURRANT authored the opinion of the Court, in
which JUSTICE HIMONAS and JUSTICE PEARCE joined.
JUSTICE PETERSEN filed a separate opinion concurring in the result.
ASSOCIATE CHIEF JUSTICE LEE filed a dissenting opinion.

CHIEF JUSTICE DURRANT, opinion of the Court:

Introduction

¶1      This is an adoption case. In 2010, V.B. (Mother) gave birth to K.T.B. Sometime later, K.T.B. went to live with A.S.A. and J.K.A. (collectively, the Adoptive Parents) and has lived with them ever

 

IN RE K.T.B.

Opinion of the Court

since. In early June 2015, the Adoptive Parents filed an adoption petition in the district court and served notice of the proceeding on Mother. The notice informed Mother that she had thirty days to file a motion to intervene in the case or she would forfeit her parental rights in K.T.B. and would be barred from participating further in the adoption proceeding.

¶2 Mother attempted to intervene, but due to a procedural deficiency in the document she filed with the district court, the court struck her filing and excluded her from the adoption proceeding. Mother then filed a rule 60(b) motion seeking relief from the court’s order to strike. Around this time, J.N.—Mother’s common-law husband—filed his own motion to intervene, asserting, based on his judicially recognized common-law marriage to Mother, that he is K.T.B.’s presumptive father. The district court denied both motions.

¶3 On appeal, Mother challenges the constitutionality of Utah’s Adoption Act.1 Specifically, she argues that the Adoption Act’s structure, which permits a district court to terminate parental rights if the parent does not “fully and strictly comply” with the statutory requirements, is unconstitutional as applied to her.2 We agree with Mother on substantive due process grounds, so we reverse the district court’s order striking Mother’s filing.

¶4 Additionally, J.N. argues that the district court erred in denying his motion to intervene because the Adoption Act entitles him to certain rights as K.T.B.’s presumptive father. But because J.N. had not obtained judicial recognition of his common-law marriage at the time the Adoptive Parents filed their adoption petition, the Adoptive Parents had no obligation to serve him with notice. Instead, he was presumed to be on notice that an adoption could occur and was obligated to file a motion to intervene within thirty days of the Adoptive Parents’ petition. Because he failed to do so, his motion to intervene was untimely and the district court did not err in denying it.

Background

¶5 Mother gave birth to K.T.B. in September 2010. His biological father is unknown. In 2013, K.T.B. went to live with the Adoptive Parents. The Adoptive Parents became his legal guardians in June 2014 and one year later they petitioned the district court to terminate Mother’s parental rights and allow them to adopt K.T.B. Shortly thereafter, the Adoptive Parents served

Mother with a notice of the adoption proceedings in accordance with Utah Code section 78B-6-110.3

¶6 The notice informed Mother that she had thirty days to intervene or contest the adoption. It explained that her response must be in the form of “a motion to intervene[,] which shall set forth the specific relief sought[] and shall be accompanied by a memorandum specifying the factual and legal grounds upon which the motion is based.” It further stated that her failure to respond would “result in [her] waiver of any right to further notice of the proceeding,” would cause her to “forfeit any rights in relation to [K.T.B.],” and would “bar[] [her] from thereafter bringing or maintaining any action to assert any interest in [K.T.B.].”

¶7 Within thirty days of receiving the notice of the adoption proceeding, Mother filed an “Answer to Verified Petition for Termination of Parental Rights and for Adoption of Minor Child.” Her answer reads like a typical answer in a civil case—it addresses each allegation in the adoption petition separately, denying almost all of them. This included a denial of all of the Adoptive Parents’ allegations regarding her parental unfitness and lack of an emotional connection to K.T.B. Importantly, Mother did not include an accompanying memorandum “specifying the factual and legal grounds upon which the motion [was] based,” and at no place in the answer did she make legal or factual assertions beyond conclusory admissions or denials of the allegations contained in the adoption petition.

¶8 Additionally, in the answer’s prayer for relief, Mother requested “[t]hat petitioners take nothing by way of their Petition,” her reasonable attorney fees, and any other relief the court deemed just and appropriate to award.

¶9 After thirty days, the Adoptive Parents asked the district court to strike Mother’s answer because she did not comply with the requirements of section 110 of the Adoption Act. Citing section 110’s strict compliance requirement, the district court granted the Adoptive Parents’ request by striking Mother’s answer. The court explained that the “Answer was not accompanied by a memorandum supporting intervention.” And it “also did not ‘set forth specific relief sought’” because the only relief sought was that

“Petitioners take nothing by way of their Petition.” According to the court, this did not qualify as a request to intervene in the adoption, nor did it meet the statutory requirement that the relief be “specific.”

¶10 Once the court struck the answer, it concluded that Mother had failed to intervene within the time allotted by section 110. Due to this failure, the court ruled that Mother had “waived any right to further notice in connection with the adoption,” had “forfeited all rights in relation to the adoptee,” and was “barred [t]hereafter from bringing or maintaining any action to assert any interest in the adoptee.” It also found that because she failed to intervene, her consent to the adoption could be implied under section 120.1.4

¶11 One month after Mother’s exclusion from the adoption proceeding, the court entered findings of fact and conclusions of law, determining that Mother had forfeited her right to consent under sections 110 and 1125 and, alternatively, that she had implied her consent under section 120.1 by failing to file a timely motion to intervene. Because the court barred her from participating in the adoption proceeding, she could not present evidence to rebut any of the Adoptive Parents’ claims.

¶12 Mother challenged the district court’s order by filing a motion for relief from the order under rule 60(b) of the Utah Rules of Civil Procedure, but the court denied this motion. The court again relied upon Mother’s failure to comply with section 110 as its basis for excluding her from the adoption proceeding.

¶13 Around the same time that Mother filed her rule 60(b) motion, J.N.—Mother’s common-law husband—filed a motion to intervene in the adoption. In the motion, J.N. argued that the recent judicial recognition of his common-law marriage to Mother established his role as K.T.B.’s presumptive father. The court denied this motion as well. Both Mother and J.N. timely filed notices of appeal.

¶14 On appeal, Mother argues that the district court’s application of Utah Code sections 78B-6-110, -112, and -120.1 violated her due process rights, both procedural and substantive, by depriving her of her fundamental right to parent K.T.B.6 And J.N. argues that the court abused its discretion when it denied his motion to intervene because the Adoption Act entitles him to notice of, and to intervene in, the adoption as K.T.B.’s presumptive father. After oral argument we temporarily remanded this case to the district court for a determination of the enforceability of a post-adoption settlement agreement entered into by the parties. The district court determined that the agreement was based on an illusory promise and was therefore unenforceable. On return from remand we must now resolve the case on the merits. We have jurisdiction pursuant to Utah Code section 78A-4-103(2)(h).

Standards of Review

¶15 Mother argues that the district court violated her right to due process because it applied certain provisions in Utah Code sections 78B-6-110, -112, and -120.1 to terminate her parental rights over her objection and without a finding of unfitness. “Constitutional issues, including questions regarding due process, are questions of law, and we review the lower court’s conclusions for correctness.”7

¶16 Additionally, J.N. argues that the court should have allowed him to intervene in the adoption proceedings after his common-law marriage to Mother was legally recognized. “A determination under rule 24(a)(1)” of the Utah Rules of Civil Procedure, “which permits intervention ‘when a statute confers an unconditional right to intervene,’ implicates two questions.”8 The first is “whether a particular statute affords a particular class of persons an unconditional intervention right.”9 This presents “a pure question of law because it involves abstract statutory construction. A district court would not be entitled to any deference to the extent it misinterpreted an intervention statute in the abstract.”10 And the second question is “whether a particular individual actually fits within the class of persons entitled to intervene under a statute.”11 This “presents a classic mixed question because it ‘involv[es] application of a legal standard to a set of facts unique to a particular case.’”12

Analysis

¶17 Mother argues that the “statutory scheme” of Utah’s Adoption Act13 is “constitutionally infirm” because it authorized the district court to violate her constitutional rights.14 Specifically, she argues that three sections of the Adoption Act—sections 110, 112, and 120.1 “operated together [to authorize the district court] to terminate a mother’s rights, over her objections, and without a finding of unfitness or best interest of the minor child.” No one disputes that provisions within the Adoption Act authorized the district court to terminate Mother’s parental rights. To determine whether this termination amounts to either a procedural or substantive due process violation, we first consider the Adoption Act’s statutory framework. We then analyze whether the district court violated Mother’s procedural or substantive due process rights when it terminated her parental rights pursuant to provisions within the Adoption Act. We ultimately conclude that the strict compliance requirement in section 110 of the Adoption Act is unconstitutional as applied to Mother.

¶18 Additionally, J.N. argues that the district court erred when it denied his motion to intervene because he was entitled to do so as K.T.B.’s presumptive father.15 Although he filed his motion almost four months after the Adoptive Parents filed their adoption petition, J.N. argues that it was nevertheless timely because he never received the notice to which he was entitled as K.T.B.’s presumptive father. But because J.N.’s marriage had not been legally recognized at the time the Adoptive Parents filed their petition, they were not obligated to serve J.N. with notice. Instead, J.N. was presumed to be on notice and had an obligation to file a motion to intervene within thirty days of the date the Adoptive Parents filed their petition.

  1. Framework of the Adoption Act

¶19 Under the Adoption Act, when individuals file a petition for adoption, they must serve notice of the adoption proceeding upon a number of specified people, including the adoptee’s biological mother.16 “A person who has been served with notice of an adoption proceeding and who wishes to contest the adoption [must] file a motion to intervene in the adoption proceeding . . . within 30 days after the day on which the person was served with notice.”17 This motion must “set[] forth specific relief sought” and be “accompanied by a memorandum specifying the factual and legal grounds upon which the motion is based.”18

¶20 If the biological mother fails to “fully and strictly comply with all of the requirements,” she “(i) waives any right to further notice in connection with the adoption; (ii) forfeits all rights in relation to the adoptee; and (iii) is barred from thereafter bringing or maintaining any action to assert any interest in the adoptee.”19 Under section 112, a district court may then terminate the mother’s parental rights in her child.20 And under section 120.1, the mother is deemed to have consented to the adoption or otherwise relinquished her rights in her child.21

¶21 Together, these three sections of the Adoption Act permitted the district court to terminate Mother’s parental rights over her objection and without a determination that she was an unfit parent. For this reason she argues that the Adoption Act is unconstitutional as applied to her.

  1. Mother’s Procedural Due Process Rights Were Not Violated

¶22 First, Mother argues that the Adoption Act authorized the district court to violate her procedural due process rights.22 “At its core, the due process guarantee is twofold—reasonable notice and an opportunity to be heard.”23 Because Mother fails to show that the Adoption Act authorized the district court to violate either of these guarantees, her procedural due process claim fails.

¶23 Mother’s right to reasonable notice was not infringed upon. “Before a right of property or other important interest is foreclosed as a result of state action, reasonable notice must be afforded.”24 On appeal, Mother admits that she received notice of the adoption proceeding and of her obligation to participate in it. Accordingly, her right to reasonable notice has not been violated.

¶24 What is less clear, however, is whether Mother received an adequate opportunity to be heard. As we have previously explained, “[m]ere notice is an empty gesture if it is not accompanied by a meaningful chance to make your case.”25 For this reason, “the Due Process Clause also guarantees . . . an opportunity to be heard at a meaningful time and in a meaningful manner.”26 In this case, the district court relied upon the strict compliance requirement in section 110 of the Adoption Act to deprive Mother of an opportunity to contest the termination of her parental rights to K.T.B., as well as K.T.B.’s subsequent adoption.

¶25 But the promise of an opportunity to be heard may be limited by reasonable procedural prerequisites.27 Thus if a statute of limitations, or some other procedural requirement, bars an individual from participating in a legal proceeding affecting his or her rights, a procedural due process violation has not occurred unless the “procedural bar can be shown to foreclose[] . . . meaningful access to the justice system.”28 “In past cases, we have found this standard to be met by a showing of impossibility.”29

¶26 The impossibility inquiry contemplates whether “the right to notice and an opportunity to be heard were ‘completely within [the affected person’s] control.’”30 In other words, if the plaintiff could have complied with the procedural requirement under the circumstances, compliance is possible, and the plaintiff’s access to the justice system has not been foreclosed. Thus where the statute “afford[s] a reasonable opportunity to comply with the statute,” the statute’s procedural requirements do not offend procedural due process.31

¶27 Two of our previous cases illustrate a proper impossibility determination. First, in Ellis v. Social Services Department of the Church of Jesus Christ of Latter-Day Saints,32 we upheld a putative father’s procedural due process claim challenging the requirements of the Adoption Act because his compliance with the law was shown to have been rendered “impossible” through no fault of his own.33 In that case, the adoptee’s biological father and mother were engaged to be married and both resided in California, but two weeks before the wedding the mother broke off the engagement.34 Then, just a few days before giving birth, the mother traveled to Utah from California without the father’s knowledge, where she placed the newborn for adoption (after representing to those involved that the father was unknown).35 After considering these facts we noted that due process requires a “reasonable opportunity to comply” with the statutory prerequisites to the establishment of a parental right.36 And because the father could not have complied with the Adoption Act’s procedural requirements under the facts alleged, we concluded that the requirements had violated the father’s due process rights.37

¶28 In contrast to our decision in Ellis is our decision in In re Adoption of J.S.38 In that case, the district court barred a putative father from intervening in an adoption because he failed to file a required paternity affidavit within the time the Adoption Act allotted.39 The father appealed the denial of his motion to intervene. As part of his procedural due process argument on appeal, the father blamed the deficiency in this filing on “his attorney’s failure to advise him that such an affidavit was required.”40 Because the father did not specify whether he was bringing a procedural or substantive due process challenge to the Adoption Act’s filing requirements, we were forced to speculate on the nature of his claim.41 We determined that his claim could not be characterized as a procedural due process challenge, because he claimed his procedural deficiency was due to “his counsel allegedly g[iving] him bad legal advice,” not due to an overly difficult procedural requirement.42 So our decision in In re Adoption of J.S. suggests that the failure to comply with a procedural requirement due to a mistake by an attorney cannot sustain a procedural due process claim under the impossibility inquiry.43

¶29 Like the procedural deficiency in In re Adoption of J.S., Mother’s failure to comply with the Adoption Act’s procedural requirements can be attributed to a mistake by legal counsel. Mother received notice under section 110 informing her of both what was required to intervene in the proceedings and what would happen if she did not intervene. Rather than file a motion to intervene within thirty days, she filed an answer to the Adoptive Parents’ petition, which the district court found did not satisfy section 110’s strict compliance requirement. Mother does not suggest that compliance was impossible or too difficult.44 In fact, compliance clearly was neither impossible nor too difficult because Mother was able to file a compliant motion to intervene immediately after the Adoptive Parents filed their motion to strike. So the only plausible explanation for the deficiencies in Mother’s original attempt to intervene is that her legal counsel misread or misunderstood section 110’s legal requirements.45 But as In re Adoption of J.S. illustrates, when the failure to comply with a “simple and straightforward” procedural requirement is due to legal counsel’s mistake, the procedural requirement has not foreclosed meaningful access to the justice system.46 Accordingly, Mother fails to show that the Adoption Act deprived her of her constitutional right to an opportunity to be heard.

¶30 Because Mother’s constitutional rights to reasonable notice and an opportunity to be heard were not violated, her procedural due process challenge of the Adoption Act fails.

III. Mother’s Substantive Due Process Rights Were Violated

Because Section 110’s Strict Compliance Requirement

is Not Narrowly Tailored

¶31 Mother also challenges the Adoption Act’s framework under the substantive component of the Due Process Clause. Such a claim is distinct from the procedural due process challenge analyzed above. In contrast to a procedural due process attack, a substantive challenge “involve[s] a broad-side attack on the fairness of the procedural bar or limitation, on the ground that the right foreclosed is so fundamental or important that it is protected from extinguishment.”47 In other words, a substantive due process challenge alleges that a procedural requirement is unfair because it improperly infringes an important right rather than because it operates to unfairly foreclose notice or a meaningful opportunity to be heard. So if a statute allows the state to improperly extinguish or foreclose a protected right, even if it does so through straightforward procedural requirements, it is unconstitutional under the substantive component of the Due Process Clause.

  1. The district court applied provisions of the Adoption Act
    to extinguish Mother’s fundamental right to parent K.T.B.

¶32 Whether a statute improperly allows the state to extinguish or foreclose a protected right depends on the nature of the right and its attendant standard of review. If the right infringed or foreclosed is a right we have deemed “fundamental,” we review the statute under our strict scrutiny standard.48 But if it is not fundamental, we review it under “the deferential, fallback standard of rationality or arbitrariness.”49

¶33 The importance of correctly characterizing the nature of the right at issue was illustrated in our recent decision in In re B.Y.50 In that case, we considered an unmarried biological father’s challenge to a “strict compliance provision of the Adoption Act.”51 We explained that this procedural provision of the Adoption Act had been challenged on procedural and substantive due process grounds.52 We then proceeded to analyze the procedural requirement under both frameworks.

¶34 First, we analyzed the claim on procedural due process grounds, determining that the claim failed because “it was not impossible” for the unmarried father to comply with the strict compliance provision at issue.53 This was the correct analysis for a procedural due process claim, and it is the same analysis we have applied to Mother’s procedural due process claim in this case.

¶35 After deciding the father’s procedural due process claim, we turned to his substantive one.54 And we appropriately commenced our substantive due process analysis by identifying the nature of the infringed right. We determined that the right infringed in that case was “merely provisional” because the plaintiff was an unmarried biological father who had failed to perfect his parental rights by following the procedures established in law.55 Because the unmarried biological father’s right did not rise to the level of a fundamental right, we considered the father’s claim under the more deferential rational-basis prong of the substantive due process analysis.56 Under this standard, we rejected the father’s claim because the procedural requirement that barred the father from participating in the adoption proceeding—a strict compliance provision—was “far from arbitrary.”57 Thus our decision in In re B.Y. hinged on the provisional nature of the unmarried father’s right and on the standard of review we applied to the statutory provision in question.

¶36 In contrast to the right at issue in In re B.Y., the right at issue in this case is fundamental. Although “[s]ome variation exists” among the parental rights of unmarried fathers depending on the steps they have taken to perfect their parental rights,58 “no similar variation exists” among the parental rights of unmarried mothers.59

¶37 Unmarried mothers “acquire parental rights—and the accompanying right to object to an adoption—as a result of the objective manifestation of the commitment to the child that is demonstrated by their decision to carry a child to term.”60 So even though an unmarried father may be required to comply with certain procedural requirements before his parental rights become fundamental, an unmarried mother’s parental rights are “vested”61 and “inherent”62 without her having to comply with the same procedural requirements.63 In fact, this court has held that the right of a mother “not to be deprived of parental rights without a showing of unfitness, abandonment, or substantial neglect is so fundamental to our society and so basic to our constitutional order . . . that it ranks among those rights referred to in Article I, [section] 25 of the Utah Constitution and the Ninth Amendment of the United States Constitution as being retained by the people.”64 In other words, mothers retain a fundamental right in their children regardless of a failure to comply with any state-prescribed procedure.65 And this right remains in effect absent “a showing of unfitness, abandonment, or substantial neglect.”66 So if a statute authorizes a court to terminate a mother’s parental rights without her consent or without proof of unfitness, abandonment, or neglect, a fundamental right has been infringed upon, and we determine the constitutionality of the infringing statute by reviewing it under the strict scrutiny standard.67

¶38 As applied in this case, the Adoption Act authorized the district court to terminate Mother’s parental rights without her consent and without proof of parental unfitness, abandonment, or neglect. Specifically, section 110 authorized the court to rule that Mother had “forfeit[ed] all rights in relation to the adoptee” because she failed “to fully and strictly comply with all of the requirements” listed in that section. And because she failed to strictly comply with the requirements of section 110, section 112 allowed the court to terminate her parental rights, and section 120.1 allowed the court to rule that she had lost her right to consent or object to the adoption.68

¶39 The Adoptive Parents argue, however, that Mother’s parental rights were not terminated by her failure to strictly comply with the Adoption Act’s procedural requirements. Instead, they assert that her parental rights were properly terminated after the district court considered relevant evidence at the uncontested adoption hearing held the following month.69 This argument fails because Mother had already been stripped of “all rights in relation to the adoptee”70—including the right to contest, or consent to, the adoption—by the time the court heard evidence relevant to a proper termination of parental rights.71 In other words, because the Adoption Act authorized the district court to bar Mother from participating in the adoption proceeding, Mother’s right to defend her parental rights was extinguished.72 So even if section 110’s strict compliance requirement did not immediately allow the court to extinguish the full spectrum of Mother’s parental rights, it nevertheless infringed in part on Mother’s parental rights by requiring the court to exclude her from the adoption proceeding and mandating the forfeiture of “all [her] rights in relation” to K.T.B.73

  1. As applied to this case, section 110’s strict compliance provision
    fails strict scrutiny review

¶40 Because the Adoption Act authorized the district court to terminate a fundamental right in this case, we must analyze it under the strict scrutiny standard.74 Under the strict scrutiny standard, “a fundamental right is protected except in the limited circumstance in which an infringement of it is shown to be ‘narrowly tailored’ to protect a ‘compelling governmental interest.’”75 Section 110’s strict compliance requirement fails this test.76 Even though the Adoption Act’s procedural requirements serve a number of compelling governmental interests, in this case the strict compliance requirement in section 110 was not necessary to protect those interests and therefore it is unconstitutional as applied to Mother.

¶41 Although we have previously recognized that the “strict laws” in the Adoption Act further the state’s interest in promoting prompt and stable adoptions,77 we have not yet considered the constitutionality of section 110’s strict compliance requirement under a strict scrutiny analysis.78 So even though we have previously concluded that section 110’s requirements are not merely arbitrary,79 we have not yet determined whether those requirements were necessary to achieve the state’s compelling adoption-related interests under the circumstances presented in this case. We do so now.

¶42 The State of Utah has a number of “compelling interest[s] in the adoption process.”80 First, “the state has a compelling interest in providing stable and permanent homes for adoptive children in a prompt manner.”81 Second, it has an interest “in preventing the disruption of adoptive placements.”82 And third, it has an interest “in holding parents accountable for meeting the needs of children.”83 These interests satisfy the strict scrutiny standard’s “compelling interest” prong.84 Accordingly, we review section 110’s strict compliance requirement to determine if it is narrowly tailored to facilitate these interests.

¶43 Under strict scrutiny’s “narrowly tailored” prong, we must determine whether the “legitimate state purpose [could] be . . . more narrowly achieved.”85 In other words, we consider whether the challenged provisions were “necessary” to achieve the state’s purpose in facilitating a prompt and stable adoption of K.T.B., in preventing a disruption of that adoption, or in holding parents accountable for K.T.B.’s needs.86

¶44 Section 110 requires a person to “file a motion to intervene in the adoption proceeding.”87 If the person fails to intervene within thirty days, that person is excluded from the adoption proceeding going forward.88 This timely intervention requirement serves the state’s interest in providing prompt adoptions and in preventing their disruption by a parent who chose not to intervene but later reconsiders this decision.

¶45 As part of section 110’s intervention requirement, the motion to intervene must “set[] forth specific relief sought” and be “accompanied by a memorandum specifying the factual and legal grounds upon which the motion is based.”89 These sub-requirements serve section 110’s overarching purpose. They do so by (1) notifying the court and the petitioners of who will be contesting the adoption and (2) informing the court of the legal basis on which that person is entitled to intervene, thereby allowing the court to quickly weed out improper interveners. Mother’s attempt to intervene satisfied section 110’s overarching purpose as well as the underlying purposes of section 110’s filing requirements.

¶46 Mother filed an “Answer to Verified Petition for Termination of Parental Rights and for Adoption of Minor Child” within thirty days of receiving the notice of the adoption proceeding. And although her answer was not accompanied by a memorandum “specifying the factual and legal grounds upon which the was based,” she did admit in her answer that she was K.T.B.’s mother, as well as deny all of the factual allegations upon which the Adoptive Parents based their request to terminate her parental rights. Moreover, in the answer’s prayer for relief, Mother requested that the Adoptive Parents “take nothing by way of their Petition.”

¶47 This answer fulfilled the purposes of section 110’s motion to intervene requirement. First, we note that “it is the substance, not the labeling, of a motion that is dispositive in determining the character of the motion.”90 Based on the substance of Mother’s answer, the court and the Adoptive Parents knew or should have known that Mother wanted to participate in the proceeding in order to oppose the adoption. They also knew or should have known that Mother intended to participate by providing evidence to defend against the factual allegations they advanced in support of their request to terminate Mother’s parental rights. And because the answer was filed within thirty days, it did not hinder the state’s interest in facilitating a prompt adoption.

¶48 Second, the court’s interest in barring improper parties from the proceedings was not hindered by the procedural deficiencies in Mother’s answer. Mother is indisputably K.T.B.’s biological mother. And at oral argument before us, the Adoptive Parents conceded that timely motions to intervene brought by a biological mother are granted as a matter of course. Thus, even though Mother’s answer did not trigger scheduled briefing and oral argument as a motion to intervene would have done, the answer nevertheless fulfilled section 110’s purposes by alerting the court—and the Adoptive Parents—that K.T.B.’s biological mother sought to participate in the proceedings. Stated differently, in light of Mother’s unquestioned status as K.T.B.’s biological mother, the contents of the Adoptive Parents and Mother’s pleadings provided the district court with all of the information it needed to rule on the issue of Mother’s intervention. So in this case, section 110’s purposes were fulfilled by Mother’s attempt to intervene through her answer.

¶49 But section 110 also states that its requirements must be “fully and strictly” complied with.91 Despite the fact that Mother’s answer did not hinder the state’s compelling interests in promoting prompt and stable adoptions, the district court barred her from the adoption proceeding because she failed to strictly comply with section 110’s filing requirements. And this inevitably led the court to terminate all of Mother’s parental rights pursuant to section 112.

¶50 Because Mother’s timely filed answer—though not strictly compliant with section 110’s procedural sub-requirements— achieved everything section 110 is designed to achieve, we cannot say that the strict compliance requirement was necessary to achieve the state’s compelling adoption-related interests in this case. For this reason we hold that section 110’s strict compliance provision is unconstitutional as applied to Mother.92 Accordingly, we reverse

the district court’s decision to strike Mother’s answer and remand to the district court for further proceedings, in which Mother may participate, on the Adoptive Parents’ adoption petition.

  1. The arguments raised by the dissent are unpersuasive

¶51 The dissent disagrees with our resolution of Mother’s substantive due process claim. At its heart, the dissent’s disagreement stems from a different view of the right at issue. We contend that the right at issue is Mother’s fundamental right to parent—a right firmly rooted in our history and case law. Because we view the right at issue to be fundamental, any governmental infringement of that right is subject to strict scrutiny review.93 And in applying our well-established strict scrutiny test, we have determined that the state violated Mother’s fundamental parental rights when it terminated those rights despite Mother’s timely, and substantially compliant, attempt to intervene. In other words, because the strict compliance requirement did not further the State’s compelling, adoption-related interests in this case, we hold that the strict compliance requirement is unconstitutional as applied in this case.

¶52 The dissent, in contrast, argues that the rights at issue in this case are not Mother’s parental rights—the rights that were terminated by the State. Instead, it argues that the right at issue is Mother’s right to retain her right to parent despite a failure to comply with procedural requirements. In other words, rather than asking whether Mother, as K.T.B.’s biological mother, has a constitutionally protected interest in engaging in any of the conduct inherent in the parent-child relationship, the dissent asks whether Mother has a constitutionally protected interest in being free from a particular form of governmental interference. But we reject this characterization of the right at issue because it is inconsistent with our case law, and it would lead us to entirely overlook the substantial parental interests at the heart of this case.

¶53 But before we discuss the specific ways in which the dissent’s approach is inconsistent with our case law, we also note that, as a practical matter, the dissent’s approach would strip Mother’s parental rights of their fundamental status. The dissent concedes that Mother had fundamental parental rights. And it cannot dispute that those fundamental rights were terminated by the State. Despite this, the dissent argues that the relevant right at issue in this case is not one of the fundamental rights that were terminated, but Mother’s right to retain her fundamental parental rights. And, according to the dissent, this newly identified right is not fundamental and so its infringement need not be reviewed under our strict scrutiny standard. In other words, although the dissent concedes that at least some of Mother’s parental rights were fundamental before they were terminated,94 it does not explain how we should analyze Mother’s loss of those fundamental rights. So the dissent’s proposed approach either ignores Mother’s pre-existing fundamental parental rights or treats them as if her failure to strictly comply with the challenged procedural requirements transformed her fundamental rights into the less valuable right the dissent argues is at issue in this case.95 The practical effect of this approach is that any procedural requirement triggering the forfeiture of fundamental rights is immune from strict scrutiny review because the right to retain those rights is not fundamental. For this reason, we reject the dissent’s approach.

¶54 We also reject the dissent’s approach because it is inconsistent with our case law. It is inconsistent for two reasons. First, it is inconsistent because it departs from the manner in which we, or the United States Supreme Court, have defined parental rights in parental rights termination cases.96 Second, it is inconsistent because it leads to a misapplication of the doctrine of forfeiture.

  1. The dissent mischaracterizes the right at issue in this case

¶55 We reject the dissent’s argument because it is based on a mischaracterization of the right at issue. According to the dissent, the right at issue is not Mother’s parental rights, but her “right to retain parental rights despite failing to comply with required procedure.”97 But this mischaracterizes the right at issue in two ways. First, it incorrectly defines the right by referencing the manner—forfeiture triggered by a procedural default—in which the government interfered with Mother’s parental rights. Because this characterization of Mother’s right would mark a fundamental departure from the way courts have traditionally defined parental rights, we reject it.

¶56 Second, the dissent mischaracterizes the right at issue by failing to account for a key distinction between the nature of the rights of an unmarried biological mother and an unmarried biological father. Throughout its opinion, the dissent relies upon cases in which we or the United States Supreme Court dealt with the provisional, or inchoate, parental rights of unmarried biological fathers. Because the case law clearly establishes that mothers have a “retained” fundamental right in their children, whereas unmarried fathers have only provisional rights that must be perfected through compliance with procedure or some other means, the dissent’s argument fails.98

  1. The dissent errs in defining the right in reference to the form of governmental interference

¶57 We first address the dissent’s attempt to characterize the right at issue by referencing the procedural requirement that triggered the forfeiture of Mother’s parental rights. It states that the right at issue is the “right to retain parental rights despite failing to comply with required procedure.”99 To be clear the dissent does not dispute that at least some parental rights are fundamental.100 Nor does it dispute that Mother lost all of her parental rights in this case. But, according to the dissent, the right at issue in this case is not Mother’s fundamental right to parent (the right that was forfeited), but her right to retain that fundamental right despite her noncompliance with the challenged procedural requirement. In defining the right at issue in this way, the dissent adopts a novel approach to defining due process rights in parentage cases—an approach that effectively deprives Mother’s fundamental parental rights of the heightened protection our case law would typically provide.101

¶58 The dissent’s mischaracterization of the right in this case appears to rest on a misconception of how we typically define parental rights. By incorporating a reference to the challenged governmental interference in this case—the procedural requirements that triggered the judicially imposed forfeiture of Mother’s parental rights—into its definition of the right at issue, the dissent would have us define the right at issue based on the particular form the governmental interference takes. That is not how the United States Supreme Court, nor we, have defined parental rights in the past.

¶59 Under the approach established by the Supreme Court, the nature of parental rights is defined based on (1) the status of the individual invoking the right and (2) the parental conduct to be protected. For example, in one of the Supreme Court’s seminal parental rights cases, Meyer v. Nebraska, the Court explained that the “liberty” component of the Due Process Clause includes “the right of the individual to . . . establish a home and bring up children.”102 The Court then specifically concluded that this liberty right included the right of “parents to control the education of their own.”103 So the Court defined the right to parent by referring to the status of the individual claiming the right—the individual’s status as a parent—and by referring to the conduct to be protected—the education of children.

¶60 Following Meyer, the Supreme Court has repeatedly looked to the status of the individual and the conduct to be protected before determining whether the individual’s claim fell within the umbrella of parental rights. For example, the Court has looked to an individual’s parental status in distinguishing between the rights of parents and grandparents104 and between biological parents and foster parents.105 And, importantly for this case, this court has distinguished between the rights of unmarried biological fathers and unmarried biological mothers.106

¶61 The Supreme Court has also looked to the conduct to be protected in determining that the right to parent included the right to homeschool,107 the right “to direct the religious upbringing of [the parent’s] children,”108 and, in a long line of cases, “the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”109 We also note that the Supreme Court has made clear that parental rights protect against all forms of “government interference.”110

¶62 Thus Supreme Court precedent makes clear that we should characterize the parental right at issue in a given case by referring to (1) the status of the individual invoking the right and (2) the parental conduct to be protected. And our ultimate characterization of the right does not depend on the form of governmental interference at issue. But that is not how the dissent would have us characterize the parental right in this case.

¶63 The dissent characterizes the parental right in this case as the “right to retain parental rights despite failing to comply with required procedure.”111 So rather than asking whether parental conduct falls within the umbrella of protected parental rights, the dissent asks whether parents have a recognized right to be free of a particular form of governmental interference—in this case, a judicially imposed forfeiture of all parental rights. Accordingly, under the dissent’s approach, it is the nature of the governmental interference, rather than Mother’s parental status (an unmarried biological mother)112 or the conduct in which she would like to engage (all parental conduct, or, at the very least, the maintaining of her parental rights)113 that would define her parental right. This characterization of the right at issue would mark a significant departure from the Supreme Court’s method of defining parental rights.

¶64 The dissent disagrees. Although it concedes that, under controlling precedent, parental rights are defined by the status of the individual invoking the right and the conduct to be protected, it nevertheless argues that its approach is consistent with this precedent because it has merely adopted a narrower view of “the precise form of parental conduct at issue.”114 So, according to the dissent, our disagreement regarding the nature of the right at issue is merely a disagreement regarding the “level of generality at which an asserted right [should be] framed.”115

¶65 The dissent’s narrow framing fails because, in defining the “conduct” at issue by referencing the form of governmental interference at issue, the dissent fails to identify any parental conduct. And when we correctly identify the parental conduct at issue in this case, it is clear that we have framed the right appropriately.

¶66 The dissent explains that it has narrowly framed “the relevant conduct” by “asking whether there is a right to an exemption from procedural default.”116 Although it is unclear whether “an exemption from procedural default” constitutes conduct in any sense, even were we to accept it as such it would not constitute the type of parental conduct the Supreme Court uses to define parental rights. In identifying the relevant parental conduct in its past cases, the Supreme Court focuses on the parent’s conduct directed at the parent’s child, not conduct directed at, or from, the State. For example, in Wisconsin v. Yoder, the Supreme Court identified the relevant conduct as the parents’ conduct in providing a religious education and upbringing to their children.117 The Court explained that the case involved “the fundamental interest of parents . . . to guide the religious future and education of their children” and it explained that this right had been “established beyond debate as an enduring American tradition.”118 So, in defining the conduct at issue, the Yoder Court focused on the parents’ interactions with their children and asked whether the parent had a fundamental right to so interact.

¶67 In contrast to the Yoder court’s framing of the relevant parental conduct, the dissent frames the relevant conduct by focusing on Mother’s interactions with the State. The dissent explains that Mother does not have a fundamental right to be free of the consequences of a State-imposed forfeiture of parental rights because she has failed to “establish a tradition of protecting parental rights despite a procedural default.” This is inconsistent with the Supreme Court’s approach in Yoder and other parental rights cases.

¶68 Had the Yoder Court defined the right in that case, as the dissent does here—by defining it in terms of the parent’s interactions with the State—it would have focused on whether the “American tradition” had established a parent’s right to be free from criminal prosecution despite the parent’s violation of a legislative enactment. So the dissent’s focus on the form of governmental interference at issue is clearly inconsistent with the Court’s framing of the parental right in Yoder.

¶69 The dissent also errs in attempting to narrow the scope of the relevant parental conduct in this case. Although the dissent correctly notes that the level of generality at which an asserted right is framed may be an outcome-determinative issue in some cases, its suggestion that the level of generality is an issue in this case conflicts with controlling precedent.

¶70 The level of generality at which an asserted right is framed may properly be considered an unresolved issue only where a party argues that the Due Process Clause protects someone whose (1) status or (2) conduct had not previously received constitutional protection. For example, in Smith v. Organization of Foster Families For Equality and Reform, the Supreme Court considered whether the “liberty” interest protected by the Due Process Clause extended to individuals in “their status as foster parents.”119 In considering this question, the Court considered the differences between biological families, which are created without state involvement, and foster families, which “have their origins in an arrangement in which the State has been a partner from the outset.”120 Reasoning that the “contours” of the liberty interest protected by the Due Process Clause did not have its source “in state law,” “but in intrinsic human rights, as they have been understood in this Nation’s history and tradition,” the Court concluded that the “foster parents” liberty interest received only the “most limited constitutional” protection. So, in Smith, the Supreme Court resolved a novel question regarding the constitutional protections provided to someone with a particular parental status by narrowing—to exclude foster parents—the parental status needed to receive full protection under the Due Process Clause.

¶71 The same is true of the Court’s decision in Michael H. v. Gerald D., the case upon which the dissent’s level-of-generality argument principally relies.121 The dissent relies on this case to argue that the Supreme Court “has never conclusively established a governing standard” for defining the level of generality at which an asserted right is framed.122 And, for this reason, the dissent states that it is free to define the right at issue as it does. But the level-of-generality discussion in Michael H. does not support the dissent’s proposed framing of the right in this case.

¶72 In Michael H., an unmarried father asserted a fundamental parental interest in a daughter who was born into a woman’s existing marriage with another man.123 So, as in Smith, the Court in Michael H. had to decide whether the “liberty” interest protected by the Due Process Clause extended to an individual whose parental status had not previously been recognized as deserving full due-process protection.124 The justices who joined the plurality opinion opted to construe the status of the unmarried father narrowly—as an unmarried father of a daughter born into a woman’s existing marriage with another man. The dissent, in contrast, would have construed the status of the father in more general terms—as a parent or father. So the competing opinions in Michael H. suggest that where an individual asserts a fundamental parental right based on a parental status (or parental conduct) that had not previously been recognized as deserving constitutional protection, the level of generality at which the court defines the parental status (or conduct) may be an outcome-determinative issue.

¶73 But the level-of-generality problem discussed in Michael H. is not an issue in this case, because our case law has already established the level of protection the Due Process Clause provides to a biological mother’s parental right in a parental rights termination case. In fact, the dissent concedes that Mother’s parental status—as a biological mother—affords her certain, fundamental parental rights. The dissent’s only disagreement, therefore, is over our broad characterization of the parental conduct at issue. But our case law makes clear that, where the government is attempting to terminate all parental rights, courts should define the parental right broadly to encompass the full spectrum of constitutionally protected parental conduct inherent in the parent-child relationship. In other words, the “parental conduct” at issue in a parental rights termination case encompasses the entire bundle of parental rights, including the parent’s fundamental rights to homeschool,125 “to direct the religious upbringing of [the parent’s] children,”126 “to make decisions concerning the care, custody, and control of their children,”127 and any other right that will be terminated as a result of the State’s termination proceeding.

¶74 That the conduct at issue in parental rights termination cases encompasses the full spectrum of parental conduct is made apparent in the Supreme Court’s decision in Stanley v. Illinois.128 In that case, the Court determined whether the State of Illinois’ “method of procedure,” which created a presumption that unmarried fathers were unfit parents, violated principles of due process.129 As a result of this procedural rule, the father in the case lost his parental rights in his children. In resolving this case, the Court explained that the “issue at stake [was] the dismemberment of [the father’s] family.”130 And throughout the opinion, it referred to the right or interest at issue variously as the interest “of a man in the children he has sired and raised,”131 as the “rights to conceive and to raise one’s children,”132 as the right of “custody, care and nurture of the child,”133 and as an interest in the “integrity of the family unit.”134 So the Court did not narrowly frame the right by defining it as a right to be free from a particular procedural rule, as the dissent would have us do here. Instead, it described the right broadly, and more accurately, to encompass all of the interests in parental conduct the father would have lost were the state’s “method of procedure” upheld.

¶75 The Court treated the relevant parental conduct similarly in Quilloin v. Walcott.135 There the issue presented was once again whether a state could “force the breakup of a natural family” through a procedural mechanism that provided fewer protections to unmarried fathers than it did to mothers.136 Although, based on the father’s unmarried status, the Court ultimately upheld this procedure as constitutional, the Court consistently referred to the interest at issue in the case as an interest to engage generally in parental conduct.137 So the decision in Quilloin likewise suggests that, in parental rights termination cases, we must take a broad view of the relevant parental conduct.138

¶76 Our past parental rights termination cases have also described the parental conduct in broad terms. For example, in one of our earliest parental rights termination cases, In re J.P., we emphasized that the case “involve[d] a permanent termination of all parental rights.”139 And we explained that “all parental rights” included fundamental rights “to sustain [a parent’s] relationship with his [or her] child,” “to direct the upbringing and education of children,” and a right in “the custody, care and nurture of the child.”140 So, consistent with the Supreme Court precedent, we characterized the type of “parental conduct” at issue in parental rights termination cases in broad terms.

¶77 Following our decision in In re J.P., our decisions in parental rights termination cases have consistently referred to the relevant parental conduct in broad terms. For example, in Wells v. Children’s Aid Society of Utah, we stated broadly that the “relationship between parent and child is protected by the federal and state constitutions.”141 And in In re adoption of J.S., we acknowledged “a fundamental right for a mother not to lose her rights to her child absent proof of unfitness, abandonment, or neglect,”142 as well as the fundamental parental interest that a father has “in the children he has sired and raised.”143 We also cited our decision in In re J.P. for the proposition that the “integrity of the family and the parents’ inherent right and authority to rear their own children have been recognized as fundamental axioms of Anglo-American culture, presupposed by all our social, political, and legal institutions.”144 As these cases illustrate, in parental rights termination cases, we have consistently described the relevant parental conduct protected by the Due Process Clause in broad terms.145 And in defining parental conduct, we have never defined it, as the dissent does in this case, by referencing the particular form of governmental interference. Accordingly, the level-of-generality problem identified by the dissent is not at issue in this case, and the dissent’s purported framing of the relevant conduct in this case is inconsistent with our case law.

¶78 In sum, Supreme Court precedent makes clear that parental rights should be characterized based on (1) the status of the individual invoking the right and (2) the parental conduct to be protected. The dissent’s characterization of the right, in contrast, defines the right in reference to the form of governmental interference. In other words, rather than asking whether Mother, as K.T.B.’s biological mother, has a constitutionally protected interest in engaging in any of the conduct inherent in the parent-child relationship, the dissent asks whether Mother has a constitutionally protected interest in being free from a particular form of governmental interference. Because such a characterization of the right at issue is inconsistent with our case law, and would lead us to entirely overlook the substantial parental interests at the heart of this case, we reject it.

  1. The dissent errs in failing to distinguish between the constitutionally protected status of biological mothers and the provisional parental status of unmarried biological fathers

¶79 Additionally, we also reject the dissent’s characterization of the right at issue in this case because it fails to account for a key distinction between the nature of the rights of a biological mother and the rights of an unmarried biological father. As we have discussed, parental rights should be defined based, in part, on the status of the individual invoking the right. And our case law has firmly established a clear distinction between the parental status of mothers and unmarried fathers. But, despite this, the dissent attempts to apply unmarried father cases to the facts of this case. Because the case law clearly establishes that mothers have a “retained” fundamental right in their children, whereas unmarried fathers have only provisional rights that must be perfected through compliance with procedure or some other means, the dissent’s argument fails.146

¶80 We first addressed the distinction between the nature of the parental rights of a mother and an unmarried biological father in In re J.P.147 In that case, we considered an unmarried biological mother’s challenge to a statute that permitted a court to “decree an involuntary termination of all parental rights solely on the basis of a finding that such termination will be in the child’s best interest.”148 We began our review of the mother’s challenge by summarizing the United States Supreme Court’s decisions in Stanley and Quilloin as standing for the proposition that “[s]ome variation [in the protection provided by the Due Process Clause] exists among unwed fathers.”149

¶81 So, under the rule established in those decisions, we explained that unwed fathers “who have fulfilled a parental role over a considerable period of time are entitled to a high degree of protection” but “unwed fathers whose relationships to their children are merely biological or very attenuated may, in some circumstances, be deprived of their parental status merely on the basis of a finding of the ‘best interest’ of the child.”150 Thus the nature of an unmarried father’s right may vary from case to case depending on what the father has done to develop a relationship with his child.151

¶82 But in contrast to unwed fathers, we explained that “no similar variation exists among mothers who are unwed” and that “all unwed mothers are entitled to a showing of unfitness before being involuntarily deprived of their parental rights.”152 And we explained that this right “is so fundamental to our society and so basic to our constitutional order . . . that it ranks among those rights . . . retained by the people.”153

¶83 So our discussion of parental rights in In re J.P. makes clear that only unmarried fathers need comply with procedural mechanisms to perfect their parental rights. In other words, the parental status of all biological mothers, whether married or unmarried, gives mothers a right to not “be deprived of parental rights without a showing of unfitness, abandonment, or substantial neglect,” and this right is not contingent upon compliance with any procedural requirement that the state may establish. Accordingly, the dissent’s discussion of Mother’s rights in this case is inconsistent with our holding in In re J.P.

¶84 The dissent’s discussion of Mother’s rights is also inconsistent with our holding in In re Adoption of J.S.154 As our discussion of In re J.P. above makes clear, an unmarried father’s parental right is “merely provisional” until the father takes steps to perfect it. And in In re Adoption of J.S., we considered an unwed father’s challenge to provisions in the Adoption Act that provided a procedural mechanism for unwed fathers to perfect their parental rights.155 Echoing the distinction between mothers and unmarried biological fathers we made in In re J.P., we explained that “[u]nwed mothers acquire parental rights—and the accompanying right to object to an adoption—as a result of the objective manifestation of the commitment to the child that is demonstrated by their decision to carry a child to term.”156 But with unmarried fathers there is no such “objective manifestation,” so the father’s “legal obligation to file the paternity affidavit” described in the Adoption Act serves as “a rough counterpart to the mother’s [objective] commitment” to her child.157 Based on this distinction, we stated that a child may be placed for adoption only “if the mother and father choose to waive [their parental] right[s]—or in the case of a father, fails to assert the right by filing the paternity affidavit in a timely fashion.”158 So our decision in In re Adoption of J.S. recognized that the vested nature of a mother’s parental rights meant that only unmarried fathers could lose their rights to their children by failing to comply with state-instituted procedure.

¶85 With this distinction in mind, we proceeded to the merits of the unmarried father’s claim. After noting that the father had not brought a procedural due process claim, we then proceeded to analyze the Adoption Act’s paternity affidavit requirement under a substantive due process analysis.159 In so doing, we noted that procedural limitations “may be challenged on either procedural or substantive due process grounds.”160 And that a substantive due process claim may be brought where otherwise fair procedures are alleged to be unfair in light of the “fundamental or important” right they foreclose.161

¶86 We then analyzed the nature of the right of the unmarried father. Although we recognized that we had already determined that the parental rights of mothers are fundamental (in In re J.P.), we clarified that this labeling had been limited to mothers because of “extensive historical evidence of the ‘deeply rooted’ nature of [a mother’s] right.”162 A plurality of the court then noted that the father in the case had not made the “required showing of ‘deeply rooted’ history and tradition [that] was made in J.P. [regarding the rights of mothers],”163 and so, absent such a showing, the father’s substantive due process claim would be reviewed on the “deferential, fallback standard of rationality or arbitrariness.”164 Accordingly, our discussion of parental rights in In re Adoption of J.S. clarified that the parental rights of mothers are fundamental, requiring strict scrutiny analysis, but the parental rights of unmarried fathers are merely provisional, absent some future showing of “extensive historical evidence” that unmarried father’s rights are likewise fundamental.

¶87 As this discussion of In re J.P. and In re Adoption of J.S. demonstrates, our case law has established a significant distinction between the parental rights of unmarried biological mothers and unmarried biological fathers. Under this distinction, the fundamental parental rights of a mother are not contingent on compliance with any procedural requirements that may be imposed by the state. Because the dissent’s characterization of the right at issue, and its discussion of our previous cases, fails to adequately account for this significant distinction, its argument fails.

¶88 In fact, even though the dissent concedes that Mother, based on her parental status as a biological mother, did not need to strictly comply with the procedures in the Adoption Act to render her parental rights fundamental, it nevertheless argues that strict compliance was necessary to preserve the fundamental nature of her rights. So the dissent would create a novel framework in which a right, although concededly perfected and fundamental, can lose the protection of strict scrutiny review where the holder of the right fails to take on-going steps to preserve it. But the dissent cites no authority for such a framework. And our case law clearly refutes it.

¶89 Our case law makes clear that the fundamental parental right is a “retained”165 right that stems from “nature and human instinct,” which is “chronologically prior” to “state or federal statutory law.”166 It also states that the right includes a fundamental right for parents to “sustain” their relationships with their children.167 If these phrases mean anything, they mean that the fundamental nature of a recognized parental right does not lose its fundamental status because of a failure to comply with a procedural requirement instituted by the State.

¶90 To be clear, we are not suggesting that the state can never terminate a fundamental parental right based on the parent’s failure to comply with a statutory requirement. Instead, we are merely reaffirming the firmly established principle that where the state intervenes “to terminate [a parent-child] relationship,” that intervention, whether accomplished through the imposition of a procedural requirement or some other means, “must be accomplished by procedures meeting the requisites of the Due Process Clause.”168 Applying this principle in this case, we have concluded that the State’s termination of mother’s fundamental parental rights, based on her failure to strictly comply with a State-created procedural requirement, would be constitutional only if the procedural requirement is narrowly tailored to achieve a compelling state interest. The dissent’s criticism of this straightforward approach to substantive due process is misplaced.

¶91 Because the dissent fails to adequately account for a key distinction our case law has established between the status of biological mothers and unmarried biological fathers, it mischaracterizes the right at issue in this case. And the dissent’s attempts to defend this mischaracterization by proposing a theoretical framework in which the state could deprive an individual’s fundamental rights of strict-scrutiny protection through the imposition of a preservation requirement is likewise inconsistent with our case law.

¶92 In sum, we reject the dissent’s characterization of the right at issue in this case because it incorrectly defines the right at issue based on the particular form the governmental interference takes and because it fails to adequately distinguish between the “retained” and fundamental nature of a mother’s parental rights and the merely provisional nature of an unmarried father’s rights.

  1. The dissent misapplies the doctrine of forfeiture in this case

¶93 The dissent’s mischaracterization of the right at issue in this case is also problematic because it leads to a misapplication of the doctrine of forfeiture to Mother’s due process claim. As discussed, the dissent argues that the right at issue in this case is not Mother’s indisputably fundamental right to parent, but her right to retain that fundamental right despite her noncompliance with the challenged procedural requirement. Based on this characterization, the dissent argues that we have established a new right “to flout a legal filing requirement but avoid the normal consequence of such a move”169 and that, under our approach, a fundamental right can never “be forfeited due to a procedural default.”170 But the dissent misreads our opinion. And its proposed alternative approach misapplies the doctrine of forfeiture in this case.

¶94 Contrary to the dissent’s characterization of our opinion, we are not suggesting that the “mere possession of a fundamental right . . . forever insulate[s] the mother from ever losing that right.”171 And we are not saying that fundamental rights are entirely “beyond the procedural reach of the State’s regulatory authority.”172 Instead, we are merely reaffirming the firmly established principle that where the state intervenes “to terminate [a parent-child] relationship,” that intervention, whether accomplished through the imposition of a procedural requirement or some other means, “must be accomplished by procedures meeting the requisites of the Due Process Clause.”173 In other words, we are stating only that the imposition of unconstitutional procedures, as applied to the fundamental right in this case, is beyond the regulatory authority of the State.

¶95 Based on this principle, we have analyzed the facts of this case to determine whether the procedural mechanism through which the state terminated Mother’s fundamental rights was constitutional. And, after a straightforward application of the Supreme Court’s strict scrutiny standard, we have determined that the strict compliance provision in section 110 of the Adoption Act was unconstitutionally applied in this case. In other words, we are saying that the enforcement of the strict compliance requirement violated the Due Process Clause because it triggered the loss of fundamental rights even though it was not necessary to further the State’s compelling adoption-related interests in this case. And we are saying that because the strict compliance provision violated the Due Process Clause, as it was applied to Mother, it cannot justify the State’s termination of Mother’s parental rights.

¶96 In contrast, the dissent argues that the state did not terminate any fundamental rights in this case, because Mother forfeited her rights when she failed to comply with the procedural requirements of the Act. But the dissent’s argument assumes, without analysis, that the procedural requirement that triggered Mother’s default was constitutional. In other words, the dissent avoids the central question presented by Mother’s substantive due process claim.

¶97 So, in effect, the dissent argues that the procedural requirement that authorized the state to terminate Mother’s fundamental parental rights is constitutional because Mother failed to comply with that procedure. This approach is not only circular, it is inconsistent with the doctrine of forfeiture.

¶98 Forfeiture “is not appropriate when it is inconsistent with the provision creating the right sought to be secured.”174 The relevant provision in this case is the Due Process Clause of the Constitution. As we explained above, the substantive component of the Due Process Clause allows plaintiffs to challenge the “fairness of [a] procedural bar or limitation, on the ground that the right foreclosed is so fundamental or important that it is protected from extinguishment.”175 And Due Process Clause case law has further clarified that “fundamental” rights may be extinguished through the operation of procedural provisions only where those provisions survive strict scrutiny review.176 So, in other words, the substantive component of the Due Process Clause protects individuals from being deprived of fundamental rights through the operation of procedures that are not narrowly tailored to further compelling state interests.177 And, as our analysis above demonstrates, the procedural requirements that triggered the loss of Mother’s fundamental parental rights were not narrowly tailored. So applying the doctrine of forfeiture to defeat Mother’s substantive due process claim in this case would be inconsistent with the Due Process Clause.

¶99 Because forfeiture “is not appropriate when it is inconsistent with the provision creating the right sought to be secured,”178 and the dissent’s proposed application of forfeiture in this case would be inconsistent with the substantive component of the Due Process Clause, we reject the dissent’s forfeiture argument. And in so doing, we clarify that the doctrine of forfeiture does not prevent an individual from challenging the constitutionality of a procedural requirement based on the individual’s failure to comply with that procedural requirement.

¶100 Accordingly, we reject the arguments the dissent raises for two reasons. First, we reject them because the dissent mischaracterizes the right at issue; second, we reject them because the dissent misapplies the doctrine of forfeiture to the facts of this case.

¶101 In sum, Mother has fundamental parental rights. The district court severed those rights because Mother failed to strictly comply with the procedural requirements of section 110. Because the strict compliance provision in section 110 was not narrowly tailored, we hold that the strict compliance provision is unconstitutional as applied in this case.

  1. J.N.’s Motion to Intervene was Properly Denied

¶102 We now turn to J.N.’s claim. He argues that he should have been allowed to intervene in the adoption proceedings after his marriage to Mother was judicially recognized. Although J.N. admits that he is not the biological father, he argues that due to his common-law marriage to Mother, he is K.T.B.’s presumptive father179 and therefore was entitled to notice of the adoption petition under section 120 of the Adoption Act. Because the Adoptive Parents did not serve him with notice, he contends that his motion to intervene was timely, and he was therefore entitled to intervene in the adoption proceeding under Rule 24 of the Utah Rules of Civil Procedure.180 We disagree.

¶103 At the time the Adoptive Parents filed their adoption petition, J.N.’s marriage to Mother had not been legally recognized. After the court barred Mother from the adoption proceeding, J.N. sought this recognition by filing an action in a different district court. He succeeded, and the second district court recognized his marriage as beginning “on or about June 16, 2010,” or three months before the birth of K.T.B.181 With this judicial decree in hand, J.N. then filed his motion to intervene in this case. The district court denied his motion, in part, because it was untimely.

¶104 On appeal, J.N. argues that at the time the adoption petition was filed, his marriage to Mother—which, according to the subsequent judicial marriage decree, began on June 16, 2010— created a presumption that he is K.T.B.’s father, thereby entitling him to notice of the adoption. He reasons that because he never received notice of the adoption proceeding, section 110’s thirty-day time period to intervene was never triggered. Thus he argues his motion to intervene was timely, and he was therefore entitled to intervene under rule 24.

¶105 In support of his argument J.N. cites our decision in Whyte v. Blair.182 In Whyte we held that once a common-law marriage is legally recognized it can have retroactive legal effect from the time the marriage was entered.183 But contrary to J.N.’s assertion, Whyte did not answer the question of whether a common-law marriage entitles a couple to state-recognized marital rights in the absence of a judicial decree. That question is answered by the plain language of Utah Code section 30-1-4.5, Utah’s common-law marriage statute.

¶106 Under section 30-1-4.5, a person may seek legal recognition of a common-law marriage by obtaining a judicial or administrative order. Once this occurs, a common-law marriage “is treated as any other marriage for all purposes.”184 And as our decision in Whyte makes clear, these marital rights may apply retroactively once they are recognized.185 But the plain language of two provisions within section 30-1-4.5 also makes it clear that the marital rights stemming from a common-law marriage are merely conditional unless they have been legally recognized through a judicial or administrative order.

¶107 First, section 30-1-4.5(1) states that a common-law marriage “shall be legal and valid if a court or administrative order establishes that it arises out of a contract between a man and a woman” who satisfy certain common-law marriage requirements.186 Thus, by negative implication, a common-law marriage is not legal and valid in the absence of such an order.

¶108 Second,           section 30-1-4.5(2)        states        that       “[t]he

determination or establishment of a [common-law] marriage shall occur during the relationship . . . or within one year following the termination of that relationship.” So if a couple terminates a relationship that would have qualified as a common-law marriage, but fails to obtain judicial recognition of that relationship within one year of termination, then any marital rights the couple could have enjoyed through legal recognition are forfeited. In other words, if a couple fails to perfect marital rights stemming from a common-law marriage within the one-year limitations period, it is as if the marriage never occurred.

¶109 These two aspects of section 30-1-4.5 suggest that the rights stemming from a common-law marriage must be perfected through a judicial proceeding before those rights take legal effect. This makes sense. “[M]arriage is a keystone of our social order.”187 For this reason, when “a couple vows to support each other, so does society pledge to support the couple, offering symbolic recognition and material benefits to protect and nourish the union.”188 In this way, marital status serves as a basis for the conferral of a number of “governmental rights, benefits, and responsibilities,” including rights in the areas of adoption and child custody.189 But the state cannot confer these rights on a married couple unless the married couple makes their marital status known to it. And the inverse is also true: a married couple living in an as-of-yet unrecognized common-law marriage cannot obligate the state to respect rights stemming from that marriage until it has been legally recognized.190 But this is essentially what J.N. is asking the court to do.

¶110 At the time of the Adoptive Parents’ adoption petition, J.N.’s marital rights, including rights to notice or to intervene in the adoption as a presumptive father, had not been legally recognized by the State.191 Additionally, because J.N. admits that he is not K.T.B.’s biological father, he also did not have any rights in the adoption as K.T.B.’s putative father.192 J.N.’s lack of any legally recognized rights in K.T.B. at the time the Adoptive Parents filed their petition ultimately defeats his claim.

¶111 The crux of J.N.’s argument is his assertion that the Adoptive Parents were obligated to provide him with notice as a presumptive father. According to him, their failure to do so prevented the Adoption Act’s thirty-day intervention window from beginning and so his motion to intervene, filed nearly four months after the petition, was timely. But because he did not have any presumptive rights at that time, neither the Adoptive Parents nor anyone else was obligated to serve notice on him. So we must determine whether J.N., as merely a potential presumptive father, had a duty to timely intervene in the adoption proceeding despite the lack of notice. He did.

¶112 Although the Adoption Act does not establish requirements with which a merely potential presumptive father must comply before intervening in an adoption, we find that certain requirements the Adoption Act imposes on a potential biological father are applicable. Under the Adoption Act, an unmarried biological father “has a duty to protect his own rights and interests” by filing the necessary documents before relevant deadlines.193 If he does so, he preserves a right to notice and to intervene in the adoption.194 But until then, he “is considered to be on notice that . . . an adoption proceeding regarding the child may occur.”195 Although the method for protecting his rights differs from that of an unmarried biological father,196 placing the burden on J.N., as a potential presumptive father with no legally recognized parental rights, is equally appropriate.

¶113 Due to the unperfected nature of J.N.’s presumptive parental rights, he was responsible to take necessary steps to preserve his rights in the adoption. Had he done so by obtaining judicial recognition of his marriage before the Adoptive Parents filed their adoption petition, the Adoptive Parents would have been obligated to provide him with notice and he would have had thirty days to file a motion to intervene upon receipt of such notice.197 But in the absence of a legally recognized marriage, the Adoptive Parents had no such obligation, and so J.N. was considered to be on notice of the adoption proceeding once the Adoptive Parents filed their petition.198 This presumed notice initiated the Adoption Act’s thirty-day intervention window.199 Because J.N. failed to file a motion to intervene within this time, his motion was untimely and the district court had the discretion to deny it. Accordingly, we affirm the district court’s denial of J.N.’s motion to intervene.

Conclusion

¶114 Because section 110 of Utah’s Adoption Act authorized the district court to terminate Mother’s fundamental right to parent her child, we review its application to Mother under our strict scrutiny standard. And under this standard, section 110’s strict compliance requirement, as applied to Mother, is not narrowly tailored to achieve the state’s compelling interest in prompt adoption proceedings. Accordingly, we reverse the district court’s decision to bar Mother from the adoption proceeding and remand for a new hearing in which Mother may participate. Additionally, we affirm the district court’s decision to deny J.N.’s motion to intervene because his motion was untimely.

JUSTICE PETERSEN, concurring in the result:

¶115 I concur in the result of the majority opinion. And I agree with much of the majority’s analysis. But the dissent raises some concerns that I share, which the majority has not sufficiently answered.200

¶116 I agree with the majority that Mother has parental rights, which are fundamental. And as a general matter, a state infringement of a fundamental right is subject to heightened scrutiny. Further, substantive due process principles are applicable to laws of both a substantive and a procedural nature. See, e.g., In re Adoption of J.S., 2014 UT 51, ¶¶ 21–22, 358 P.3d 1009. So I do not find it inappropriate to apply such principles here. But I do find our application of strict scrutiny to a straightforward preservation rule to be novel. Because of this, I think we should acknowledge that we are applying strict scrutiny in a new context and clarify the parameters of our holding.

¶117 The majority asserts that its reasoning follows directly from established precedent. See, e.g., supra ¶¶ 62, 76, 78. But neither the majority nor Mother has identified any case where we or the United States Supreme Court has applied heightened scrutiny to a rule of preservation. And that is what we have here. As the dissent rightly observes, “[t]his is a rule of preservation—a law prescribing the form or timing of an objection necessary for a litigant to proceed with the assertion of her legal rights.” Infra ¶ 122.

¶118 In my view, applying strict scrutiny to a rule of preservation for the first time is significant because, as the dissent notes, “[s]uch rules abound in our law.” Infra ¶ 122. And they perform a critical function. At a very basic level, they set the rules for the orderly processing of civil and criminal litigation. But the majority insists we are not breaking new ground.

¶119 I think we should acknowledge that we are. First, we should recognize that we have never applied heightened scrutiny to a standard rule of preservation. And we should explain why we are extending strict scrutiny to this context.

¶120 Second, we should clarify the parameters of our holding. This decision could be read to apply to the many deadlines, filing requirements, and other rules of preservation found throughout the law, including in our own rules of procedure. Certainly, these rules at times affect litigants’ fundamental rights if they fail to comply with them. Even though this case involves an as-applied challenge ostensibly confined to its facts, this does not sufficiently define the reach of our holding. The material facts here would seem to be present whenever a litigant could establish that she had a fundamental right of some kind, and it was terminated by a preservation rule with which she substantially complied but did not fully comply. As it is, the majority’s holding seems open-ended. In light of the ubiquity of preservation rules and the core function they perform in our legal system, this has the potential to create confusion.

ASSOCIATE CHIEF JUSTICE LEE, dissenting:

¶121 The Utah Adoption Act requires a mother who wishes to oppose the adoption of her biological child to file a motion to intervene in the adoption proceedings. See UTAH CODE § 78B-6-110(6). By statute, the mother must “strictly comply” with this requirement. Id. § 78B-6-110(6)(b). Failure to do so within thirty days of being served with notice of the proceedings results in a “forfeit[ure]” of the mother’s parental rights. Id. § 78B-6-110(6)(b)(ii).

¶122 This is a rule of preservation—a law prescribing the form or timing of an objection necessary for a litigant to proceed with the assertion of her legal rights. Such rules abound in our law. And the long-established consequence of the failure to follow such rules is a procedural default, with a resulting loss of the underlying right.

¶123 The majority opposes this effect of the Adoption Act. It overrides the plain text of the statute, excuses the mother from her procedural default, and adopts a new rule of preservation of its own making—a rule that allows a mother to avoid forfeiture of her rights if she files a document that “fulfill[s] the purpose[]” of a motion to intervene.201 Supra ¶ 47.

¶124 I respectfully dissent from this decision. The court claims to find support for it in a body of substantive due process case law. But the court’s holding does not follow from that case law. It is a bold, policy-driven override of a law enacted by the legislature. I dissent because I find no basis for today’s decision in the due process principles cited by the majority and foresee significant mischief caused by it.

¶125 The mother in this case failed to follow the statutory filing requirement. She did so not because of any difficulty in following the requirement, but because she got bad advice from her lawyer. The requirement, moreover, is admittedly fair and entirely constitutional as a matter of procedural due process. The majority agrees. See supra ¶ 29 (citing In re Adoption of J.S., 2014 UT 51, ¶ 23, 358 P.3d 1009 for the proposition that “when the failure to comply with a ‘simple and straightforward’ procedural requirement is due to legal counsel’s mistake, the procedural requirement has not foreclosed meaningful access to the justice system”).202 Yet the court proceeds to establish a new constitutional right of due process that excuses the mother’s procedural default. It holds that “mothers retain a fundamental right in their children regardless of a failure to comply with any state-prescribed procedure.”203 Supra ¶ 37.

¶126 The majority seeks to portray its decision as a matter that follows from settled precedent. But that is incorrect. No court, to my knowledge, has ever established a constitutional right of a litigant (even one seeking to protect a fundamental right) to flout a legal filing requirement but avoid the normal consequence of such a move (procedural default). Certainly the majority has not cited such a case. And with that in mind, the court should take ownership of the novelty of its decision. It is the court’s prerogative to establish new rights in the name of the constitution—the principle of substantive due process opens the door to such decisions. But in so doing the court cannot properly be viewed as merely endorsing a mechanical application of existing precedent. That is not what is going on here. The court is certainly citing a line of precedent. But its decision involves a significant extension of the cited cases. And the extension will sow the seeds of confusion in our law for years to come.

¶127 The court cites a string of cases (several from the United States Supreme Court and a few from this court) in which a parent’s fundamental right is framed on the basis of “(1) the status of the individual invoking the right and (2) the parental conduct to be protected.” Supra ¶ 59. Because the cited cases have “looked to the status of the individual and the conduct to be protected before determining whether the individual’s claim fell within the umbrella of parental rights” (which are admittedly fundamental), the court objects to my more specific framing of the inquiry into the asserted “right” in question. Supra ¶ 60. On that basis the majority seeks to turn my criticism of the novelty of its approach against me. It asserts that I am the one who is pressing a novel framing of the inquiry into fundamental parental rights. The court’s argument proceeds in two steps. First, the court complains that its cited cases ask only “whether parental conduct falls within the umbrella of protected parental rights,” not “whether parents have a recognized right to be free of . . . a judicially imposed forfeiture of all parental rights.” Supra ¶ 63. And because a mother’s parental rights need not be “perfected” in the manner required of unwed fathers, the majority next insists that the mother’s fundamental right “is not  contingent upon compliance with any procedural requirement that the state may establish.” Supra ¶ 83.

¶128 Each of these points begins with a correct premise. But the court’s starting premises do not support its broad, sweeping conclusions.

¶129 On the first point, I can stipulate to a focus on “the status of the individual and the conduct to be protected” in deciding whether to endorse a new right of substantive due process. Supra ¶ 60. But that framing begs the question of what conduct, and at what level of generality to assess it. A broad framing would ask whether parental rights generally are subject to substantive due process protection. Yet that is not the only way to frame things. We could also look to the precise form of parental conduct at issue. And although the United States Supreme Court has not always been consistent on the appropriate framing, our recent precedent suggests a narrow framing that looks at the precise form of the relevant conduct.204

¶130 The United States Supreme Court has sometimes framed the inquiry into the existence of a new substantive due process right at the highest level of generality. When that court established new substantive due process rights to access contraception and abortion, for example, it framed the inquiry in broad, sweeping terms—whether there was an established tradition of respect for private decisions within a “zone of privacy.”205 But the Court’s case law has not been consistent. In other cases the court has called for a much narrower framing of the inquiry into the existence of a new substantive right. In rejecting a claim to a new right to physician-assisted suicide, for example, the court narrowly framed the inquiry in terms of a “right to commit suicide” instead of the proposed broader framing of a “right to die.”206 This is a key, unresolved problem in the high court’s substantive due process precedent, and a question that has attracted the attention of a range of commentators.207

¶131 A plurality of this court acknowledged this problem in our recent decision in In re Adoption of J.S., 2014 UT 51, 358 P.3d 1009. And it endorsed a requirement of narrowly framing any new, alleged right of substantive due process. To avoid the prospect of a court making new policy in the guise of constitutional law-making, the lead opinion in J.S. (which was joined by Chief Justice Durrant) endorsed a requirement that a party make “a specific showing that the precise interest asserted by the parent is one that is deeply rooted in this Nation’s history and tradition and in the history and culture of Western civilization.” Id. ¶ 57 (plurality opinion) (emphases added) (citation and internal quotation marks omitted). The “specific showing” of a “precise interest” suggested by J.S. is what I would require here—a showing not just of a well-rooted tradition of respect for parental rights generally, but of a tradition endorsing the right to retain parental rights without following procedural requirements set forth by law. The court’s contrary approach not only cuts against the lead opinion in J.S; it also picks sides in a key point of debate in the law of substantive due process.

¶132 The majority’s second point is similarly problematic. The notion that a mother’s rights need not be “perfected” in the manner required of unwed fathers is only half right. And the half-wrong part underscores the degree to which the majority is making new law while claiming only to be applying established precedent.

¶133 It is of course true that a mother need not make a threshold showing of her parentage to establish her fundamental parental rights in the first instance. A mother’s parental rights are perfected at the outset without any need for her to file a paternity petition or present evidence establishing the degree to which she supported or was willing to support her child. See Id. ¶ 2 (majority opinion). To that extent the majority is right to say that a mother’s fundamental rights are not contingent on compliance with the “procedural requirement[s]” imposed by our law on fathers. Supra ¶ 83. But that is not the question presented here. The question here is whether a right that is admittedly perfected without the need for procedural compliance at one stage can ever be forfeited due to a procedural default at a later stage. The majority upholds that right as a matter of substantive due process. And in so doing it breaks significant new ground. No court has ever recognized this sort of right.208

¶134 It is true that I have cited no cases in which a biological mother forfeited her parental rights through procedural default, and a court upheld such default against a substantive due process challenge. See supra ¶ 79 (criticizing me for citing only cases involving putative fathers). But this is just a reflection of the fact that there are no reported cases that are directly on point—no case in which a mother forfeited her rights through procedural default, but a court excused that failure (and obviated her forfeiture) on the basis of a substantive due process right.

¶135 Our decision in J.S. is the most obviously relevant precedent. In that case an unmarried biological father lost his parental rights as a result of a procedural default—failure to perfect his rights by jumping through the procedural hoops required by our law (principally, the filing of an affidavit of support of his child). 2014 UT 51, ¶ 1. And we upheld those procedures against a substantive due process challenge. Id. ¶¶ 5–6. In so doing, as noted above, we required more than a showing of a tradition of respect for the parental rights of fathers generally—for their “status” and “conduct” at that level of generality. Instead we required the defaulting parent to demonstrate that the right to retain parental rights despite failing to comply with required procedure is “deeply rooted” in “history and tradition.” Id. ¶ 54 (plurality opinion). This is also the showing we should require here.

¶136 The procedure at issue in J.S. was admittedly not the sort of procedure that would be required of a mother for the preservation of her rights. The majority seizes on this point, noting that “mothers have a ‘retained’ fundamental right in their children, whereas unmarried fathers have only provisional rights that must be perfected through compliance with procedure.” Supra ¶ 79. But again, this is a partial truism. All parties to litigation are bound by some procedure. And until today, no court had ever held that a fundamental parental right, once perfected, is subject only to those rules of procedure that can survive strict scrutiny review. The majority leans heavily on the “fundamental” nature of such rights to justify this result. But nowhere in the case law does the fact that a right is “fundamental” entitle its holder to forgo compliance with any procedure except that which withstands strict scrutiny. That conclusion certainly does not follow from the premise that the procedures necessary for a father’s perfection of his parental rights at the outset do not apply to mothers in the first instance.209

¶137 A mother is not required to jump through procedural hoops to establish her parental rights in the first instance. But that is not because mothers are categorically exempt from the law of procedure. It is because they are not subject to a specific species of procedure—paternity filing requirements imposed on putative fathers before their rights can be perfected. See UTAH CODE § 78B-6-121(3) (in contrast to biological mothers, the “consent of an unmarried biological father [to an adoption] is not required unless . . . the unmarried biological father . . . initiates proceedings . . . to establish paternity” and complies with other procedures). For that reason, the majority’s argument proves too much. Mothers are admittedly subject to some procedure. Rules of preservation in particular have always applied to all litigants. We cannot excuse a mother’s compliance with the law of preservation just because mothers are exempt from compliance with other procedures.

¶138 None of the majority’s cited cases is a case like this one— in which a parent’s rights were terminated as a result of the parent’s procedural default. The court’s cited cases stand for a threshold proposition that is not in dispute in this case. They say only that a person’s parental rights may not be terminated by operation of a law that cuts off the right to be heard and substitutes instead a conclusive presumption of unfitness. That is the holding of Quilloin v. Walcott, 434 U.S. 246 (1978), Stanley v. Illinois, 405 U.S. 645 (1972), and In re J.P., 648 P.2d 1364 (Utah 1982). And that proposition has no purchase here. In this case the law did not authorize the termination of parental rights without an opportunity for a parent to be heard. It expressly provided for such an opportunity—and imposed a natural consequence (forfeiture by default) for the failure to comply with the required procedure. The question here, then, is whether a mother who lost her parental rights by forfeiture through procedural default may excuse that default by claiming a substantive due process right to ignore existing procedure (unless the procedure withstands strict scrutiny). And there is no support in any precedent for the establishment of such a right.

¶139 The court’s holding, in fact, runs directly counter to another line of precedent that the majority ignores. Voting rights are undoubtedly “fundamental” under a long line of United States Supreme Court authority. See Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979); Dunn v. Blumstein, 405 U.S. 330, 336 (1972); Williams v. Rhodes, 393 U.S. 23, 38 (1968); Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). But the United States Supreme Court has gone out of its way to emphasize that the fundamental nature of this right does not subject all procedural regulation of the right to strict scrutiny. See Burdick v. Takushi, 504 U.S. 428, 432–33 (1992); Munro v. Socialist Workers Party, 479 U.S. 189, 193 (1986). In the voting rights realm, a neutral, nondiscriminatory regulation like a procedural default rule would not trigger strict scrutiny. Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 203–04 (2008). It would trigger a deferential standard of scrutiny that would uphold the constitutionality of our neutral rules of procedural default. The same holds for regulation of other fundamental rights like the rights to privacy, free speech, and free exercise of religion. See infra ¶ 159 (discussing privacy, speech, and religion cases). And the majority’s holding today is incompatible with all of these cases. See infra ¶¶ 160–65 (discussing the voting rights cases).

¶140 The majority’s basis for a substantive due process right to avoid the usual effect (forfeiture) of a procedural default is thus as novel as it is sweeping. The court’s holding, moreover, will introduce substantial confusion and uncertainty going forward. If the majority opinion takes root, the whole idea of procedural regulation by a uniform set of rules will be placed in jeopardy. If our law requires case-by-case scrutiny of whether our procedural rules are the “least restrictive means” of advancing “compelling governmental interests,” most any procedural default rule may be set aside as unconstitutional. Most procedural rules, after all, are in a sense arbitrary. That means that there will almost always be a less restrictive means of advancing the underlying goal. And that will open the door for our courts to second-guess a broad range of rules of procedural default whenever our judges think that the purpose of a governing rule could be advanced in a less restrictive way. This is problematic.

¶141 I respectfully dissent for reasons explained in greater detail below. In Part I, I address the strict scrutiny argument— analyzing the cases cited in the mother’s brief and applied by the majority, outlining the standard applied to regulation of the fundamental right to vote, and emphasizing the novel extension of the law endorsed by the majority opinion. Then in Part II, I identify the confusion and upheaval that the majority’s framework will introduce into our law.

I

¶142 The mother seeks to avoid the effects of forfeiture by asserting a substantive due process right. Yet she has failed to cite any precedent sustaining a substantive due process right to avoid the natural consequence (forfeiture) of a procedural default. And the majority opinion is similarly deficient.

¶143 The fulcrum of the majority opinion is the notion that the mother has “fundamental rights” as a parent. The mother’s brief is premised on the same notion. Citing In re J.P., 648 P.2d 1364 (Utah 1982) and Quilloin v. Walcott, 434 U.S. 246 (1978), the mother asserts that the governing precedent “condemn[s] the termination of a mother’s parental rights over her objection and without a finding of unfitness.” And the majority correctly notes that the mother’s parental rights include the right to object to an adoption. Supra ¶ 37.

¶144 This is all correct as far as it goes. But the fundamental right recognized in the cited case law has no currency here. The mother’s rights were not terminated “over her objection.” She just failed to object under the procedures set forth in our law. The mother’s right to object to an adoption is not a right to object in any manner she chooses. It is a right to object in accordance with prescribed procedure. And the natural consequence of the failure to comply with that procedure is a default—forfeiture of her rights.

¶145 As the majority notes, our case law identifies a substantive due process basis for a party to establish an exception to this normal consequence—by providing proof of a “deeply rooted” history and tradition at a very specific level of generality. This is the standard set forth in In re J.P. and reinforced in J.S. But the mother has failed to carry her burden under these cases. She nowhere establishes a “deeply rooted” history and tradition of a right to preserve parental rights despite non-compliance with the procedure required by law. And her assertion of a substantive due process right accordingly fails.

¶146 The majority objects to this framing of the right at issue. It contends that we should focus on “the status of the individual invoking the right”210 and “the parental conduct to be protected,” supra ¶ 59, by asking “whether [such] parental conduct falls within the umbrella of protected parental rights,” supra ¶ 63. That is fine as far as it goes. But the majority’s approach—inquiring into the protected status of parental conduct—begs the question: at what level of generality should the relevant conduct be characterized in assessing whether it is protected by substantive due process? The majority rejects my narrow framing of the relevant conduct (whether there is a right to an exemption from procedural default) in favor of a much broader framing (whether there is a right to parent generally).211 But this is a disputed question implicating serious and extensive debate in constitutional law. The level of generality at which an asserted right is framed can be outcome-determinative—the narrower the framing, the harder it will be to establish that the right is “deeply rooted” in history and tradition.

¶147 The level of generality problem is on display in some of the United States Supreme Court’s most prominent substantive due process decisions. Some of that court’s most fractured, controversial decisions have implicated this problem. Yet the high court has never conclusively established a governing standard. The justices openly debated the question of the appropriate level of generality in Michael H. v. Gerald D., 491 U.S. 110, 127 n.6 (1989) (plurality opinion) (arguing for a framing at “the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified”); id. at 139 (Brennan, J., dissenting) (asserting that the inquiry should be framed broadly: “whether parenthood is an interest that historically has received our attention and protection”); id. at 132 (O’Connor, J., concurring in part) (criticizing the plurality’s methodology as “inconsistent with our past decisions in this area” which sometimes “characterize[] [the] relevant traditions protecting asserted rights at levels of generality that might not be the most specific level available” (citations and internal quotation marks omitted)). But there was no majority view on the matter. And elsewhere the Court has been consistently inconsistent—sometimes framing the inquiry at a high level of generality, and sometimes opting for a much narrower framing of the proposed right at issue. See supra ¶ 130.

¶148 Commentators have highlighted both the inconsistency in the United States Supreme Court’s substantive due process framework and also its significance. In the words of one commentator, “the determination of whether history and tradition entitle a particular type of conduct to protection depends upon the breadth with which the Court defines the conduct in question.” Rick Kozell, Note, Striking the Proper Balance: Articulating the Role of Morality in the Legislative and Judicial Processes, 47 AM. CRIM. L. REV. 1555, 1572 (2011) (emphasis added). Another observes that “[t]he manner in which the court characterizes the issue critically defines the scope and boundaries of its reasoning and significantly impacts its holding,” and emphasizes that the high court “fails to provide jurisprudence that is consistent enough to guide lower federal courts.” John F. Basiak, Jr., Inconsistent Levels of Generality in the Characterization of Unenumerated Fundamental Rights, 16 U. FLA. J.L. & PUB. POL’Y 401, 403, 405 (2005) (emphasis added). Professors Tribe and Dorf, for their part, acknowledge that “[t]he selection of a level of generality necessarily involves value choices,” but argue in favor of a broad framing of the inquiry. See Laurence H. Tribe & Michael C. Dorf, Levels of Generality in the Definition of Rights, 57 U. CHI. L. REV. 1057, 1058 (1990).

¶149 The majority acknowledges the general point, but claims that the level of generality at which to frame the mother’s asserted substantive due process right “is not an issue in this case.” Supra ¶ 73. It argues that “[t]he level of generality at which an asserted right is framed may properly be considered an unresolved issue only where a party argues that the Due Process Clause protects someone whose (1) status or (2) conduct had not previously received constitutional protection.” Supra ¶ 70. That is fine as far as it goes—I agree that once controlling precedent has established the relevant level of generality there is no reason to rehash the question. And I agree that the level of generality at which to frame the mother’s asserted substantive due process right in this case is not an unresolved issue. But I think that our Utah case law, in J.S., prescribes a narrow framing for an alleged new substantive right, while the majority argues that our case law calls for a broad framing. Supra ¶ 73.

¶150 In arguing for a broad framing, the majority leans heavily on the idea that in cases addressing termination of parental rights, “courts should define the parental right broadly to encompass the full spectrum of constitutionally protected parental conduct inherent in the parent-child relationship” because “the ‘parental conduct’ at issue in a parental rights termination case encompasses the entire bundle of parental rights.” Supra ¶ 73. Again, however, the majority seems to conflate the parental conduct that is terminated (encompassing the “full spectrum of constitutionally protected parental conduct”) with the conduct triggering that termination. See supra ¶ 146 n.211. And for the same reason the various propositions it attributes to its cited cases miss the mark. See supra ¶¶ 74–77 (for example emphasizing that In re J.P. “involve[d] a permanent termination of all parental rights” (alteration in original)).

¶151 Our recent decision in J.S., however, speaks directly to the level of generality question. And unlike United States Supreme Court case law, our Utah case law not only acknowledges the problem but suggests an answer. The lead opinion in J.S. called for a narrow framing of any alleged, new substantive right—a framing that considers the precise form of the relevant conduct in assessing whether there is a sufficient history and tradition of protecting such conduct to justify the establishment of a new constitutional right. The requirement it put forth, specifically, is of “a specific showing that the precise interest asserted by the parent is one that is deeply rooted in this Nation’s history and tradition and in the history and culture of Western civilization.” In re Adoption of J.S., 2014 UT 51, ¶ 57 (plurality opinion) (emphases added) (citations and internal quotation marks omitted)). In explaining this requirement the J.S. opinion emphasized that the showing helps ensure that the power to establish new substantive due process rights is not transformed into a vehicle for judicial policy-making. See id. ¶ 61 (noting that “due process innovations” absent “any effective limiting principle” will put courts in the “problematic realm” of making “policy judgments[, which] are matters for legislative action” (plurality opinion) (internal quotation marks omitted)).

¶152 We should apply this standard here. We should require a “specific showing of a precise interest” before establishing a new right of substantive due process. That showing requires more than just a tradition of respecting parental rights generally. To establish this new right the mother must establish a tradition of protecting parental rights despite a procedural default. This is the framework suggested by J.S. And the majority does not present a satisfactory reason for departing from it on this high-stakes point of debate in the jurisprudence of substantive due process.212

¶153 In framing the right at issue broadly (and inconsistently with J.S.), the majority paints a picture of a disposition that follows naturally from settled precedent upholding the fundamental nature of parental rights generally. But framed properly, the specific right established by the majority can be seen for what it is— a novel holding in a case of first impression. No court has ever established a substantive due process right to override a forfeiture of parental rights resulting from a procedural default. This court has held, at most, that a mother has a fundamental right “not to be deprived of parental rights without a showing of unfitness, abandonment, or substantial neglect.” In re J.P., 648 P.2d at 1375; see also Wells v. Children’s Aid Soc. of Utah, 681 P.2d 199, 203 (Utah 1984). United States Supreme Court precedent is to the same effect. In Quilloin v. Walcott, the Court concluded that it would violate a right of substantive due process for the state “to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest.” 434 U.S. at 255. This same premise is inherent in the Court’s analysis in Stanley v. Illinois, 405 U.S. 645 (1972).

¶154 This precedent tells us that strict scrutiny is triggered by a statute that authorizes the termination of a mother’s parental rights over her properly asserted objection and without a requirement of proof of unfitness, abandonment, or neglect. But the Adoption Act did not authorize such termination.213 And strict scrutiny review is accordingly not triggered under the above cases.214

¶155 The key factual premise of the majority opinion is the notion that the district court “terminate[d] Mother’s parental rights without her consent and without proof of parental unfitness, abandonment, or neglect.” See supra ¶ 38. That is true as far as it goes. But that premise alone does not support the majority’s conclusion that section 110 of the Adoption Act is subject to strict scrutiny. See supra ¶ 37. The majority opinion overlooks the crucial facts that the statute (a) retains the mother’s right to insist on proof of unfitness, abandonment, or neglect as a precondition to the termination of her rights, and (b) outlines clear steps for the mother to take in order to preserve her right to assert her views on these matters before her rights were terminated (steps the majority concedes comply with the demands of procedural due process, see supra ¶¶ 22–30). The statute also prescribes clear consequences for the failure to follow the stated procedures. These include termination—not on the ground that the mother was unfit—but on the ground that she procedurally defaulted. The statute, in other words, did not take away the mother’s right to insist that the court make a finding of unfitness before terminating her rights; the mother just forfeited that right by defaulting under the statute—by not filing the required motion to intervene.

¶156 That leaves the question whether the mother may excuse her forfeiture by claiming a substantive due process right to ignore the procedural requirements of the Adoption Act. The majority concludes that the mother has that right. It says that “mothers retain a fundamental right in their children regardless of a failure to comply with any state-prescribed procedure.” Supra ¶ 37 (emphasis added). The court cites no authority for that proposition. But the premise of its holding is the notion that a mother’s parental rights are fundamental and that procedural compliance is not necessary to preserve their fundamental nature. Supra ¶ 88. In describing its holding, the court says that substantive due process “protects individuals from being deprived of fundamental rights through the operation of procedures that are not narrowly tailored to further compelling state interests.” Supra ¶ 98.

¶157 This is the essence of the court’s holding. Because I oppose it, the court accuses me of creating a “novel framework” under which a fundamental right “can lose the protection of strict scrutiny review where the holder of the right fails to take on-going steps to preserve it.” Supra ¶ 88. But the “novel framework” the majority accuses me of establishing is nothing more than the longstanding law of procedural default. And the fundamental nature of a parental right is in no way undermined by the determination that it is subject to such law.215

¶158 The case law in this field also does not sustain the majority’s holding. An important line of precedent from the United States Supreme Court establishes that states retain the power to regulate even “fundamental” rights through procedure—and clearly rejects the notion that all such regulation is subject to strict scrutiny. The parental rights cases cited by the majority are not to the contrary. None of those cases comes close to establishing the substantive due process right established by the court today. The governing standard should be the one set forth in our opinion in J.S., and the mother has not come close to satisfying that standard.

  1. Standards of Scrutiny for Regulation of Fundamental Rights

¶159 The “fundamental” nature of a given right is not alone enough to trigger strict scrutiny of any procedural regulation of that right. The United States Supreme Court has applied something less than strict scrutiny review to the infringement of many fundamental rights, including the right to privacy, the right to freedom of speech, and the right to free exercise of religion. See generally, e.g., Planned Parenthood v. Casey, 505 U.S. 833 (1992) (discarding the strict scrutiny-based abortion trimester framework of Roe v. Wade, 410 U.S. 113 (1973) for a more lenient “undue burden” test); United States v. O’Brien, 391 U.S. 367 (1968) (applying a more deferential standard to content-neutral regulation of speech than the strict scrutiny generally triggered by content-based regulations); Employ’t Div. v. Smith, 494 U.S. 872 (1990) (holding strict scrutiny inappropriate for neutral and generally applicable laws burdening religious practice). One commentator looking at these trends has observed that “the notion that government restrictions on fundamental rights are [always] subject to strict scrutiny review is fundamentally wrong” because “[s]ome fundamental rights trigger intermediate scrutiny,” some are “protected only by reasonableness or rational basis review,” and others “are governed by categorical rules, with no formal ‘scrutiny’ or standard of review whatsoever.” Adam Winkler, Fundamentally Wrong About Fundamental Rights, 23 CONST. COMMENT. 227, 227–28 (2006).216

¶160 The fact that fundamental rights do not always trigger the protection of strict scrutiny is made especially clear in a body of voting rights cases. The right to vote is described as “fundamental” in United States Supreme Court precedent. See Burdick v. Takushi, 504 U.S. 428, 433 (1992). But the high court has expressly rejected the proposition that this means that any regulation of this fundamental right triggers strict scrutiny. See id. at 432–34. In Burdick the Court described the idea that “a law that imposes any burden upon the [fundamental] right . . . must be subject to strict scrutiny” as an “erroneous assumption.” Id. at 432. It also warned that a decision “to subject every . . . regulation [of a fundamental right] to strict scrutiny and to require that the regulation be narrowly tailored to advance a compelling state interest” would impermissibly “tie the hands of States.” Id. at 433. With this in mind, the Court has applied different levels of scrutiny to various regulations of the fundamental right to vote, depending on the degree to which the regulation restricts the right.

¶161 This framework is on display in Crawford v. Marion County Election Board, 553 U.S. 181 (2008), in which the Court upheld a challenge to the constitutionality of an Indiana voter identification law. The Crawford case failed to produce a majority opinion. But the plurality and concurring opinions set forth two frameworks for analysis that both repudiate the idea of strict scrutiny of all regulation of the fundamental right to vote. Justice Stevens’ plurality opinion describes the operative regime as a “balancing approach” that weighs “the precise interests put forward by the State” against the “asserted injury to the right to vote.” Id. at 190 (citation omitted). On the other hand, Justice Scalia’s concurring opinion suggests that the Court applies a “two-track approach” that applies a “deferential ‘important regulatory interests’ standard for nonsevere, nondiscriminatory restrictions,” and “strict scrutiny for laws that severely restrict the right to vote.” Id. at 204-05.

¶162 Thus, the United States Supreme Court has made clear that voting rights “are not absolute and are necessarily subject to qualification” by state regulation, Munro v. Socialist Workers Party, 479 U.S. 189, 193 (1986), despite the fact that such rights are “of the most fundamental significance under our constitutional structure,” Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979). Regulation will invariably impose some burden on an individual’s fundamental rights (to vote and associate freely). But the Court has nonetheless held that “as a practical matter, there must be . . . substantial regulation . . . if some sort of order, rather than chaos, is to accompany the democratic processes [of asserting these rights].” Storer v. Brown, 415 U.S. 724, 730 (1974).

¶163 The same conclusion must logically hold in the realm of parental rights. Such rights have been acknowledged to be fundamental, but they are not beyond the procedural reach of the State’s regulatory authority. And the mere fact that such rights are “fundamental” does not mean that any regulation of them is subject to strict scrutiny.

¶164 The procedural regulation at issue here is admittedly distinct from that at issue in the above-cited voting rights cases. Here we are dealing with longstanding rules of procedural default. But that kind of regulation, if anything, would seem to trigger a more permissive standard of scrutiny—not strict scrutiny. Under either the balancing approach of the Crawford plurality or the two-track approach set forth in the concurrence, there is no basis for a strict scrutiny standard. Here we are dealing with the application of neutral, longstanding rules of procedure. Because such rules impose no significant burden on parental rights and are nondiscriminatory, the Crawford opinions suggest the applicability of a deferential standard of scrutiny.

¶165 We have no briefing from the parties on this line of cases. And the majority opinion sidesteps them entirely. So we have no reason to render a conclusive holding on the effect of these cases on our decision. I cite them, however, because they thoroughly undermine the majority’s notion that any regulation of a fundamental right is always subject to strict scrutiny.

  1. Parental Rights Cases

¶166 None of the majority’s parental rights cases is to the contrary. The Quilloin case specifically identifies the forfeiture question that I have highlighted here but stops far short of establishing the substantive right to override a procedural default. And prior decisions of this court actively undermine the substantive due process extension established by the majority today. Our cases require far more than the vague assertion that a mother’s parental rights, broadly framed, are “fundamental.” The standard set forth in In re J.P. and reinforced by J.S. requires proof of a “deeply rooted” history and tradition at a very specific level of generality—here, a right to preserve a parental right despite non-compliance with the procedure required by law. The mother has failed to carry her burden under these cases. And her assertion of a substantive due process right to avoid forfeiture by procedural default should accordingly be rejected.

  1. Quilloin v. Walcott

¶167 The putative father in Quilloin had “never married . . . or established a home” with the mother of his child. 434 U.S. at 247. Soon after the child’s birth, the mother married another man and consented to adoption of the child by her husband. Id. Mr. Quilloin “attempted to block the adoption and to secure visitation rights, but he did not seek custody or object to the child’s continuing to live with [the mother and her husband].” Id. The Georgia court terminated his rights upon a finding that adoption of the child by the mother’s husband “was in the ‘best interests of [the] child.’” Id. at 251 (alteration in original). There was no determination of the putative father’s unfitness. Id. at 252. And the putative father asserted that his substantive due process rights were infringed because the state lacked sufficient justification for terminating his parental rights. Id.

¶168 The Quilloin court ruled against Mr. Quilloin. It did so on the basis of some core differences between the substantive interest established by Mr. Quilloin and that presented by the putative father in a prior parental rights case—Stanley v. Illinois, 405 U.S. 645. The father in Stanley had lived with his children and their mother for many years. Id. at 646. And he had thereby established a commitment and connection by which his parental rights were deemed to be perfected. Id. at 652. With this in mind, the Stanley court struck down an Illinois statute as an infringement of the father’s substantive due process rights. Id. at 659. The Illinois statute established a conclusive presumption that unwed fathers were unfit as parents as a matter of law. Id. at 649. And the Stanley court held that the statute infringed Mr. Stanley’s fundamental parental rights because the state did not have a sufficiently compelling interest to terminate the rights of unwed fathers by operation of a legal presumption. Id. at 652–53.

¶169 The Quilloin case was different. This was “not a case in which the unwed father at any time had, or sought, actual or legal custody of his child.” 434 US at 255. And that fact was sufficient to substantially alter the balance at issue in the case—whether the state had a sufficient reason to justify terminating Mr. Quilloin’s parental rights without proof of unfitness.

¶170 The Court expressed “little doubt” that it would violate a right of substantive due process for the state “to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest.” Id. But the Court found that Mr. Quilloin’s substantive interests were outweighed by the state’s in these circumstances. It thus upheld the substantive authority of the state to terminate Mr. Quilloin’s parental rights as a matter of law—explaining that it could not “say that the State was required in this situation to find anything more than that the adoption, and denial of legitimation, were in the ‘best interests of the child.’” Id.

¶171 Georgia law, as the Court noted, afforded to putative fathers a procedural mechanism for perfecting their parental rights. That mechanism was the filing of a “legitimation petition.” Id. at 253. Such a petition would have given Mr. Quilloin the same right to veto an adoption petition that a mother (or married father) had. See id. at 249. If Mr. Quilloin had filed such a petition, he could have objected to the adoption of his child, precluding the termination of his parental rights except upon a finding of unfitness. Id. Yet he failed to do so. The Georgia court concluded that Mr. Quilloin lacked standing to challenge the adoption on that basis. And the Supreme Court ultimately reversed the judgment of the Georgia court on substantive due process grounds. But the Quilloin court was not holding that the father’s procedural default or forfeiture could be excused on substantive due process grounds. It stopped far short of establishing a substantive due process right for a parent to retain parental rights “regardless of a failure to comply with any state-prescribed procedure.” Supra ¶ 37.

¶172 The Quilloin majority begins by noting an argument made by the adoptive parents (an argument that aligns precisely with the approach I am proposing in this case)—the notion that “due process was not violated, regardless of the standard applied by the trial court, since any constitutionally protected interest appellant might have had was lost by his failure to petition for legitimation during the 11 years prior to [the] filing” of the adoption petition. 434 U.S. at 254. This is a straightforward forfeiture argument. It is the idea that the father’s substantive due process argument is foreclosed because the State afforded the father a right to assert his interests and he failed to avail himself of that procedure. It says that “regardless” of the substantive standard applied for balancing the putative father’s interests against the state’s, the putative father loses because he stands in default or forfeiture by not having availed himself of a preservation procedure for asserting his interests.

¶173 The Quilloin court expressly avoided this basis for disposition. And it did so in a way that undermines the majority’s assertion that the Quilloin line of cases sustains the substantive due process right that the court establishes today. After noting the adoptive parents’ argument, the court expressed concern about resting its judgment on this basis. It concluded that it didn’t need to address the forfeiture argument “since under the circumstances of th[e] case [Mr. Quilloin’s] substantive rights were not violated by application of a ‘best interests of the child’ standard.” Id. The Court’s point was that it didn’t matter whether Mr. Quilloin might lose on forfeiture grounds because his substantive argument failed in any event. See id. (noting “hesitat[ion]” regarding “rest[ing] [a] decision on this ground, in light of evidence in the record that appellant was not aware of the legitimation procedure until after the adoption petition was filed”).

¶174 This makes clear that the Quilloin court was not saying that a substantive due process defect can cure a party’s procedural default or forfeiture. It was saying it didn’t need to address the procedural default because the substantive due process claim failed on its merits in any event. This highlights a key shortcoming of the majority opinion. It clarifies that the United States Supreme Court has never recognized a substantive due process right for a parent to preserve her parental rights despite a prior procedural default.

  1. In re J.P.

¶175 The same goes for our case law. Utah Supreme Court precedent has come nowhere close to endorsing the right established by the court today. And in fact, our cases chart a burden for establishing a substantive due process right that the mother in this case has not carried.

¶176 In In re J.P. we emphasized the importance of framing substantive due process rights narrowly and embedding the analysis in premises that are “deeply rooted in this Nation’s history and tradition” and in the “history and culture of Western civilization.” 648 P.2d at 1375 (citations omitted). We warned of the perils of “innovations” in substantive due process extensions premised on “undisciplined . . . abstract formulae.” Id. (citations and internal quotation marks omitted). And with this concern in mind, we framed the substantive due process in precise, specific terms. We did not frame the inquiry at a high level of generality by simply stating that a parent has a vague right that is “fundamental,” and proceed from that sweeping premise to our own formulation of the appropriate nature and extent of that right. Instead we recognized a narrow, specific right—the “right of a parent not to be deprived of parental rights without a showing of unfitness, abandonment, or substantial neglect.” Id. And we based that conclusion not on our own sense of the policies supporting this sort of right, but on the fact that firmly rooted “history” and longstanding tradition of the “common law” had established such a right. Id.

¶177 Our framing of the analysis in J.P. is significant. We based our determination of a substantive due process right on longstanding history and tradition. And we framed the recognized right at a highly specific level. We came nowhere close to employing substantive due process in a manner giving a parent a substantive right to avoid a default resulting from the failure to follow procedures required by law.

¶178 The J.P. framework requires proof of established history and tradition at a precise level of specificity. It is not enough to assert generally that a mother’s parental rights are fundamental. To succeed under J.P., the mother would have to present evidence of an established history and tradition of a right of mothers “not to be deprived of parental rights despite failure to comply with procedure afforded to allow the mother to assert her interests.” And the mother here has made no such showing, as I explain further below.

  1. In re J.S.

¶179 The majority also claims support for its substantive due process analysis in our decision in In re Adoption of J.S., 2014 UT 51. Citing J.S., the majority says that “a substantive due process claim may be brought where otherwise fair procedures are alleged to be unfair in light of the ‘fundamental or important’ right they foreclose.” Supra ¶ 85 (citation omitted). Because the mother’s right to parent her child is concededly fundamental, the majority says that J.S. establishes a basis for substantive scrutiny of the fairness of the procedures set forth in the Adoption Act—and thus a basis for concluding that the mother in this case has a right to retain her parental rights despite her failure to comply with required procedures.

¶180 J.S. does not support the majority’s approach, however. In fact, the standard set forth in J.S. reiterates and extends the warnings stated in J.P. J.S. nowhere endorses the idea of a substantive due process right to retain parental rights despite failure to comply with required procedure. Certainly it doesn’t say that such a right can be premised purely on the general notion that a mother’s parental rights are “fundamental.” Instead it asks for proof at a highly specific level of generality.

¶181 In J.S. the father asserted a “substantive right” to establish his parentage without complying with the procedural elements of the statute. 2014 UT 51, ¶ 24. The governing procedure under the Adoption Act in J.S. was the requirement that a putative father file a detailed affidavit to preserve his parental rights. UTAH CODE § 78B-6-121(3). And the father sought to assert a “due process challenge . . . to the ‘substantive constitutionality of the affidavit requirement at issue,’ while emphasizing that that claim subsisted regardless of whether the statutory limitations in question were ‘applied in a procedurally fair manner.’” In re Adoption of J.S., 2014 UT 51, ¶ 27. Thus, the father “repeatedly characterize[d] his claim as one challenging the statutory affidavit requirement as ‘substantively unconstitutional,’” or in other words as “aimed at establishing a ‘fundamental,’ ‘substantive right’ of an unwed father as a parent” without complying with the statutory affidavit requirement. Id. ¶ 24.

¶182 In this sense J.S. is directly applicable to this case. As in this case, the question in J.S. came down to whether there was a substantive due process right to preserve parentage without complying with the procedural requirements of the law. But the standard set forth by the J.S. opinion is not at all compatible with the approach taken by the majority today. J.S. acknowledges the possibility of a limited form of substantive scrutiny of procedure— in a case in which a party can show not only that a general right or

 

interest is “fundamental,” but also that there is an established, longstanding tradition entitling a party to the protection of such right without compliance with procedures prescribed by the government. See id. ¶ 57 (plurality opinion) (explaining that a party would need to “establish a specific showing that the precise interest asserted by the parent is one that is deeply rooted in this Nation’s history and tradition and in the history and culture of Western civilization” (citation and internal quotation marks omitted)). In other words, J.S. speaks to the appropriate level of generality at which to frame an inquiry into the existence of a substantive due process right. It suggests a specific and narrow framing—not the broad, sweeping level of generality that the majority today espouses.217

¶183 In articulating this standard, the J.S. opinion went out of its way to warn of the “slippery slope problems” associated with any decision to endorse a new substantive due process right in this field. Id. ¶ 59 (plurality opinion). It noted that the father asserted a broad historical basis for recognizing the rights of unwed fathers. But it concluded that that was insufficient. The putative father had failed “to identify any longstanding, widespread basis in our history and culture for recognizing a perfected right in unmarried biological fathers arising upon their mere filing of a paternity suit (and without following other requirements set forth by law).” Id. (emphasis added). And it noted that “[e]ndorsement of a substantive right in this case would inevitably lead to a series of line-drawing problems going forward, requiring courts to make policy judgments about whether the biological father before the court had done enough to properly justify the recognition of his parental rights.” Id. ¶ 60. J.S. explained that such “policy judgments are matters for legislative action.” Id. ¶ 61.

¶184 J.S. also noted that “[o]ur legislature has spoken to th[e] question” of where to draw the line on the procedure for a putative father to preserve the assertion of his parental rights—“prescribing a series of prerequisites” to the assertion of his rights. Id. It rejected the putative father’s attempt to “second-guess those requirements” by “establish[ing] a substantive due process right to perfect his parental rights on something less than the grounds prescribed by the legislature—by filing a paternity action but not the affidavit called for by statute.” Id. “Doing so,” the plurality explained, “would put us in the problematic realm of making ‘due process innovations’ dictated by ‘abstract formulae’ and without any effective limiting principle.” Id. And with this in mind it held the putative father to the substantive due process standard quoted above—a standard framed at a specific level of generality.

¶185 The opinion also connected this standard to the law of procedural default or forfeiture. It noted that the putative father in that case was merely “claim[ing] that he ignored” the procedural requirements of our law “on the (bad) advice of counsel.” Id. ¶ 63. And while acknowledging that this was “unfortunate,” it emphasized that “bad legal advice is no excuse for failure to follow” procedural prerequisites to the assertion of a party’s legal rights, noted that “our legal system treats attorneys as agents for their clients,” and explained that we “deem clients responsible for the decisions they make on advice of counsel.” Id.

¶186 J.S. thus emphasizes the narrowness of the operative notion of substantive due process. In rejecting the father’s substantive due process claim in that case, the lead opinion explained that the father had failed to “make the kind of showing,” id. ¶ 58,” needed to establish such a right—proof of a “longstanding, widespread basis in our history and culture for recognizing a perfected right in unmarried biological fathers arising upon their mere filing of a paternity suit (and without following other requirements set forth by law),” id. ¶ 59. And it also connected this strict standard of substantive due process to the law of procedural default or forfeiture.

¶187 The above bears no resemblance to the standard applied by the majority in this case. The majority invokes J.S. in support of a substantive standard of scrutiny of the statutory procedure under review—here, the requirement of a motion to intervene. See supra ¶¶ 84–86. And it roots its holding in the bare notion that a mother’s rights in a child are “fundamental”—presupposing that the inquiry should be framed at a broad, sweeping level of generality. See supra ¶¶84–86. But that is not the approach taken in J.S. J.S. took the substantive due process claim at issue on its own terms—framing it at a highly specific level of generality. And the plurality in J.S. rejected that claim on the ground that the father had not established a basis in history and tradition for the notion of a substantive right—narrowly framed—to preserve parental rights without complying with the established statutory procedure.

¶188 J.S. thus charts a narrow, limited domain for a claimed substantive right to preserve parental rights despite a party’s default under established procedure. And it highlights the novelty—and error—in the majority’s decision to endorse a substantive right to preserve parental rights despite a procedural default under the law.218

  1. In re B.Y.

¶189 The majority also claims support for its approach in In re Adoption of B.Y., 2015 UT 67. Citing B.Y., the majority says that our substantive due process analysis opens the door to scrutiny of the “fairness” of a “procedural bar or limitation” in a statute “on the ground that the right foreclosed is so fundamental or important that it is protected from extinguishment.” Supra ¶¶ 31, 98. Because the mother’s right to parent her child is concededly fundamental, the majority says that B.Y. establishes a basis for substantive scrutiny of the fairness of the procedures set forth in the Adoption Act—and thus a basis for concluding that the mother in this case has a right to retain her parental rights despite her failure to comply with required procedures. Supra ¶¶ 31, 98. But the B.Y. opinion is consistent with Quilloin, J.P., and J.S—it comes nowhere close to establishing a substantive due process right to retain parental rights despite a procedural default.

¶190 In B.Y. a putative father sought to challenge the Adoption Act’s mandate of “strict compliance” with the procedural requirements of the statute—specifically, the requirement of filing a paternity action prior to the mother’s consent or relinquishment of the child for adoption. 2015 UT 67; UTAH CODE § 78B-6-121(3) (The “consent of an unmarried biological father is not required unless, prior to the time the mother executes her consent for adoption or relinquishes the child for adoption, the unmarried biological father . . . initiates proceedings . . . to establish paternity . . . .”). Despite the failure to fulfill this procedural requirement, the father in B.Y. asserted that he “did enough to ‘grasp’ his ‘opportunity . . . to develop a relationship with his offspring’” to perfect a fundamental parental right under United States Supreme Court precedent. 2015 UT 67, ¶ 42 (omission in original). And he asserted that the strict compliance requirement infringed his substantive due process rights as a parent.

¶191 We acknowledged the possibility of a substantive due process claim in this realm, but we rejected it on its merits. We noted that “[a]n unwed father’s rights are merely provisional,” emphasized that he “must comply with legal prerequisites established by the state” to perfect such rights, and concluded that “[f]ailure to do so leaves the father’s parental rights without any substantive protection—except in the narrow circumstance in which the prerequisites established by the state are arbitrary.” Id. ¶ 43. In so doing we emphasized that “[t]he Due Process Clause . . . is not a license for courts to second-guess the prerequisites established by the legislature for a putative father to perfect his parental rights.” Id. ¶ 44. “Instead,” we said that “the well-settled standard yields substantial deference to the state’s chosen prerequisites.” Id. And we explained that “[i]t does so in light of the state’s important interest in ‘immediate and secure adoptions for eligible newborns.’” Id. We held that the putative father’s claim “fail[ed] under this standard.” Id. ¶ 46.

¶192 The majority seeks to distinguish B.Y. and to claim support for its approach in that opinion. It says that B.Y. supports the application of a standard of strict scrutiny in assessing the “fairness” of the procedure set forth in the Adoption Act—the requirement of filing a motion to intervene. Supra ¶¶ 31, 98. And it bases that determination on the fact that this case involves the parental rights of a mother, which are automatically “fundamental,” while B.Y. involved the rights of a putative father, which are “merely provisional.” Supra ¶ 35. The point is correct as far as it goes. But until today, no court has ever extended it in the manner endorsed by the majority. The majority is of course right to say that a biological mother’s rights are inherently and automatically “fundamental” under the law. And the court is equally correct in its observation that the parent’s alleged right in B.Y. was inchoate or “merely provisional.” This was, moreover, a key basis for our decision in B.Y. The substantive due process claim in B.Y. was deficient because a putative father’s provisional right required additional acts on the father’s part before the right could be perfected as fundamental. And we had no trouble rejecting the father’s substantive due process right in light of the cited premises in our case law—the need for “substantial deference” to the state’s chosen procedural “prerequisites” to the establishment of a parental right, and the substantial basis for protecting “the state’s important interest in ‘immediate and secure adoptions for eligible newborns.’” B.Y., 2015 UT 67, ¶ 44.

¶193 But the majority’s analysis assumes that a fundamental right once acquired is therefore insulated against forfeiture through procedural default. The court cites no case law in support of its decision to establish a new substantive right to retain a fundamental parental right despite procedural default. And such a right does not at all follow from the fact that the underlying right is itself protected as a matter of substantive due process. Again, a mother’s parental rights are automatically fundamental in the sense that she is not required to jump through the procedural hoops to perfect those rights required of fathers under our case law. See J.S., 2014 UT 51, ¶ 2 (explaining requirements for fathers to file paternity petitions and present evidence regarding their support of the child to make a threshold showing of parentage and perfect their parental rights). But the connection between procedural compliance and the initial perfection of parental rights is beside the point here. Here the parental right at issue is admittedly perfected (and was so without the need for the procedural compliance required of fathers), so the question is whether that concededly perfected right can later be forfeited through procedural default. By holding that it cannot, the majority establishes a new right of substantive due process.

¶194 The majority repeatedly insists otherwise. Citing cases establishing a mother’s lack of need for procedural compliance at the perfection stage, it says that the mother must likewise have no obligation to comply with another set of procedures (for preservation) at a later stage. Supra ¶¶ 36–37; 79–91. But this is a big step. The fact that a mother need not jump through procedural hoops to perfect her parental rights not only bears on a different stage of procedural compliance; it also has no bearing on procedural default generally.

¶195 The mother is not required to jump through procedural hoops to establish her parental rights in the first instance. But that is not because her fundamental parental rights encompass a right to flout procedural requirements generally. It is because there is an established tradition—framed in narrow, specific terms—of respecting a mother’s rights without any requirement of any procedural act aimed at perfecting those rights. That tradition is reflected in the fact that the law does not extend the requirement of compliance with this procedure to mothers. See UTAH CODE § 78B-6-121(3).

¶196 None of these premises apply to the procedures at issue here. The procedural rules of preservation assuredly do apply to both mothers and fathers. And in the absence of evidence of an established tradition allowing a mother to retain her rights despite a failure to comply with those rules, the court has no basis to establish the existence of such a right.

¶197 By focusing on the difference between mothers’ and fathers’ rights at the threshold stage of perfection and importing that distinction to any later instance of procedural default, the majority also ignores the fact that the state’s interest in procedural compliance at these later stages is the same for both mothers and fathers. The fact that the mother’s rights are automatically fundamental does not mean that she can blithely avoid any need to follow state procedure in an adoption proceeding.

¶198 The Adoption Act’s procedural requirements are not aimed only at putative fathers. They are also aimed at mothers. See UTAH CODE § 78B-6-110(6)(a) (requiring that a mother, or any other party who receives notice of adoption, must file motion to intervene in adoption proceeding within 30 days); id. § 78B-6-110(6)(b) (stating that a mother who fails to “fully and strictly comply” with this requirement “forfeits all rights in relation to the adoptee”). And the legislature has articulated substantial interests that are advanced by requiring a mother to intervene as a party and assert her position regarding any claimed basis for termination of her rights (such as unfitness, abandonment, or neglect). The legislature has expressly found, for example, that “the state has a compelling interest in providing stable and permanent homes for adoptive children in a prompt manner, in preventing the disruption of adoptive placements, and in holding parents accountable for meeting the needs of children.” Id. § 78B-6-102(5)(a). It has also concluded that “adoptive children have a right to permanence and stability in adoptive placements.” Id. § 78B-6-102(5)(c). These are important concerns. And they are obviously furthered by a requirement that a mother intervene as a party in a timely fashion and assert any proffered challenge to termination of her parental rights. Failure to do so results in a forfeiture of those rights. Neither the mother nor the majority has identified any basis in the law of forfeiture by procedural default or in the Adoption Act to contradict that conclusion.

¶199 The state’s interests in assuring “stable and permanent homes for adoptive children in a prompt manner” and “preventing the disruption of adoptive placements” thus remain intact whether the parental rights at stake are those of a biological mother or a putative father. See id. UTAH CODE § 78B-6-102(5)(a). And it is in this sense that the question of perfection is irrelevant. It is not—as the majority suggests—a threshold question that can obviate the need to establish a historical basis for noncompliance with governing procedure. The historical inquiry is not aimed at finding a basis for whether the parent’s right is fundamental or not. The historical inquiry is aimed at finding a basis for noncompliance with procedure despite holding fundamental parental rights. It bears repeating that no court has ever established a substantive due process right of a mother to retain her parental rights despite defaulting those rights under governing procedure. We certainly didn’t establish such a right in B.Y. In fact, B.Y. left intact the standard put forth in J.S.—a standard that requires much more than a mere challenge to the “unfairness” of procedure for preserving parental rights, and that instead requires a deeply rooted historical basis for a fundamental right to retain parental rights despite failing to comply with the governing procedure. And, again, the mother has not come close to carrying that burden here, as discussed in more detail below.

¶200 J.S., admittedly, is not a case involving a biological mother’s forfeiture of parental rights through procedural default. So it is true that my proposed disposition would be an extension of J.S. insofar as that case did not involve a substantive due process challenge to forfeiture of a mother’s parental rights. But this only buttresses my point that this a case of first impression. And J.S. is our most relevant precedent, both bearing on forfeiture of parental rights through procedural default and suggesting a position in the levels of generality debate discussed above. See supra ¶¶ 179–88. The J.S. plurality advocated for a specific framing of the new right proposed to be established as a matter of substantive due process. And because the framing question is independent of whether a parent is a father or a mother, it bears directly on today’s case and I would apply it.

¶201 The majority charges me with mischaracterizing the right at issue. It complains that I am “mark[ing] a fundamental departure from the way courts have traditionally defined parental rights.” Supra ¶ 55. I am puzzled by this charge. I concede that there is a lot of novelty in this case. But the novelty comes from the majority’s extension of the law of substantive due process—from its reframing of the alleged new right at the highest level of generality.

¶202 The cases I have cited admittedly deal only with the rights of putative fathers. But it does not at all follow that a mother’s rights are insulated from procedural default. The mother, as noted, is not required to jump through procedural hoops to protect her rights at the outset. But the majority is seizing on a false procedural equivalence in insisting that that means she can never be subject to any procedure at any stage. The majority is accordingly right to highlight the novelty of this case. The novelty, however, is entirely in the majority opinion.

  1. Application of the Governing Standard

¶203 For the above reasons there is no basis in existing case law for the establishment of a substantive due process right for a mother to avoid the usual effect (forfeiture) of a procedural default. Certainly that does not follow from the premise that a mother’s rights are unquestionably “fundamental.” Much more analytical work is required under the above precedent. To sustain a right to preserve parental rights despite the failure to comply with established procedure, the mother should be required to make a showing at a specific level of generality based on firmly rooted history and tradition. See In re Adoption of J.S., 2014 UT 51, ¶ 57 (plurality opinion). She should have to show not just the general notion of a fundamental right as a mother, but a right to preserve her rights without complying with established statutory procedure.

¶204 The mother has made no effort at such a showing. Instead she claims only (a) that mothers generally have rights that are automatically fundamental, and (b) that the procedure required by the Adoption Act is generally “unfair.” The majority opinion’s analysis is to the same effect. See supra ¶ 37 (asserting that “[a] right of a mother not to be deprived of parental rights without a showing of unfitness, abandonment, or substantial neglect is . . . fundamental” (citation and internal quotation marks omitted)).219

¶205 This falls far short under our law. And the mother’s substantive due process claim should be rejected on the ground that she has failed to carry the heavy burden set forth in our cases—a burden that the majority distorts in its decision today. Contrary to the majority’s claim, I am not saying that the substantive due process right at issue is defined by “referencing the form of governmental interference.” Supra ¶ 65. I am simply saying that the established procedures determine how and whether such a right is preserved.

¶206 It is tempting to see a technical defect in procedural compliance as a matter that should lightly be excused. But procedural rules are always two-edged. There is always an interest on the other side of the equation. And the procedural requirements of the Adoption Act are no exception.

¶207 The adoption arena is one where strict procedural compliance is at a premium. The state has a compelling interest in “providing stable and permanent homes for adoptive children in a prompt matter” and “preventing the disruption of adoptive placements.” UTAH CODE § 78B-6-102(5)(a). To serve the interest of protecting “the welfare of the child, a determination that a child can be adopted must be final as well as immediate.” Wells v. Children’s Aid Soc. of Utah, 681 P.2d 199, 203 (Utah 1984). And statutory procedures for natural parents to participate in and assert their rights in adoption proceedings are a core element of this system.

¶208 We have long respected the interests advanced by the procedural requirements of the Adoption Act. We should continue do so here. The state’s interests in stability and finality are no less substantial here—in a case involving a biological mother. And the majority has identified no legal basis for avoiding this conclusion.

II

¶209 In setting the procedural rules for participation in an adoption proceeding, our legislature could have required that a biological mother be formally named as a party and served with a summons and petition for adoption. Some other states structure their law in this way.220 And I can see an argument for favoring this sort of scheme. If I were a legislator I might be tempted to vote for this kind of adoption regime.

¶210 But I am not a legislator. And we are not being asked to take on the role of super-legislature. We are being asked to decide whether the constitution invalidates the adoption provisions that were enacted into law by the legislature that was elected into office by the people. The answer to that question is no. The majority breaks new constitutional ground in concluding otherwise. It cites no on-point precedent to support its novel adoption of a substantive due process right to override the effect that our law has long prescribed for a party’s procedural default—forfeiture of the party’s rights.

¶211 The majority’s due process standard, moreover, threatens a wide range of adoption procedures in place in numerous states across the nation. Procedural default is a well-established basis for the termination of parental rights.221 Yet the majority’s standard calls this basis into question. When parental rights are terminated as a result of a mother’s procedural default, the effect will always come about without proof of unfitness, abandonment, or neglect. And this effect, in the majority’s view, will always trigger strict scrutiny. Supra ¶ 37. This sweeping extension of strict scrutiny threatens the viability of the procedures and rules of procedural default or forfeiture. The majority seeks to mask this upheaval by emphasizing the “narrowness” of its holding, insisting that procedures regulating fundamental rights may yet be preserved—so long as they are “‘narrowly tailored’ to protect a ‘compelling governmental interest.’” Jones v. Jones, 2015 UT 84, ¶ 27, 359 P.3d 603 (quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997)).

¶212 But this is no real brake on the majority’s approach. The majority holds that a party’s noncompliance with procedure is excused (on substantive due process grounds) so long as the purpose of a procedural requirement is fulfilled. See supra ¶¶ 47–48. The standard states, in other words, that a procedural requirement whose purpose can be fulfilled in an alternative manner is a procedural requirement that is not narrowly tailored.

¶213 And that is a principle with unlimited potential for mischief. The application of a strict scrutiny standard to procedural regulation of fundamental rights forecloses the whole idea of regulation by a uniform set of procedural rules. If the majority’s approach takes root, our law will require case-by-case analysis of the viability of any and all procedural rules that may sustain the sanction of a default of a fundamental right. And this will undermine the whole point of procedural regulation. Our rules will be pointless if parties can ignore them and instead secure personalized standards set by the courts on a case-by-case basis.

¶214 The majority’s framework calls into question a broad range of established procedures. The majority seeks to minimize the impact of its decision. Supra ¶ 37 n.67. But it has identified no meaningful limiting principle. Almost all procedure is not narrowly tailored. Most all procedural rules, by nature, are in a sense quite arbitrary. And that means that there will almost always be a less restrictive means of advancing the underlying goal.

¶215 Consider a standard procedural time bar, like a requirement that a party file an answer within thirty days, or a response to a motion for summary judgment within a prescribed timeframe. If a mother fails to file a timely answer or response to the motion her case may be defaulted. Does the principle of substantive due process give her the right to ignore the time limits in our rules because the time limits we have prescribed are arbitrary numbers and the underlying purpose is still served by a late filing? That is not how our law of procedure works. And the doctrine of substantive due process has never been employed in a manner calling into question the enforceability of the procedural default rules built into our law of procedure.

¶216 Procedural default rules serve the state’s compelling interests in promoting prompt and stable adoptions. See supra ¶ 42 (citing Thurnwald v. A.E., 2007 UT 38, ¶¶ 30, 34, 163 P.3d 623). But such rules may often not be the least restrictive means of advancing those interests. When a rule of procedural default is not the least restrictive means of advancing the state’s interests, the rule will be struck down as unconstitutional. And this will upset longstanding principles of procedural default and forfeiture—and undercut the reliance interests of adoptive parents and children. See supra ¶¶ 42, 82.

¶217 The majority opens the door to a new frontier of substantive due process scrutiny—scrutiny of the fairness of the procedures prescribed for the procedural default or forfeiture of legal rights. If the majority opinion is taken to its logical end, the law of procedural default or forfeiture will be forever pressed into a state of limbo. And parties in cases involving fundamental rights will stand in a particular state of unease.

¶218 Today we speak only to the rights of parents. But the logic of today’s decision sweeps much more broadly. As framed by the court, it would cover any of a wide range of other fundamental rights—including the right to liberty (freedom from incarceration) or the right to vote. Our laws require those asserting their interest in freedom from incarceration to comply with procedural rules in the law of preservation. See, e.g., UTAH CODE § 78B-9-106 (precluding relief under the Postconviction Remedies Act on any ground that “could have been but was not raised at trial or on appeal” or that “is barred by the limitation period established in Section 78B-9-107”); see also, e.g., Taylor v. State, 2012 UT 5, 270 P.3d 471 (rejecting defendant’s Postconviction Remedies Act claims because they were procedurally barred). The same goes for fundamental rights like the right to vote. See, e.g., UTAH CODE § 20A-2-102.5 (establishing a voter registration deadline with limited exceptions). In the wake of today’s decision the parties to a case involving these and other fundamental rights should be on notice that the usual effect of a procedural default (forfeiture) may not hold. The courts will retain the prerogative of second-guessing these procedures—and may set them aside if the majority’s strict scrutiny standard is taken seriously.

¶219 This is troubling. The majority’s novel approach threatens the very foundations of the law of procedural default or forfeiture. And it places no meaningful limit on judicial discretion to second-guess the law in this field. Our precedent has charted a more principled course for recognizing viable substantive due process claims. I would apply that precedent here. And I would conclude that the mother has failed to carry her burden of proving a deeply rooted historical basis for a fundamental right to retain parental rights despite failing to comply with the governing procedure.

———————–

FOOTNOTES:

1 UTAH CODE §§ 78B-6-101 et seq. Mother specifically challenges the constitutionality of Utah Code section 78B-6-112. She argues, however, that section 112 “does not operate alone” in the present case because the district court relied on provisions in sections 110 and 120.1 to terminate her parental rights under section 112.

2 Although at one point in Mother’s brief she states that the Adoption Act is unconstitutional “on its face” and “as applied,” we note that her claim is more properly viewed as an as-applied challenge. “A statute may be unconstitutional either on its face or as applied to the facts of a given case. A facial challenge is the most difficult because it requires the challenger to ‘establish that no set of circumstances exists under which the [statute] would be valid.’ An as-applied challenge, on the other hand, succeeds if the challenger shows that the statute was applied to him or her in an unconstitutional manner.” State v. Herrera, 1999 UT 64, ¶ 4 n.2, 993 P.2d 854, 857 (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)).

Mother has brought an as-applied challenge. Throughout her briefing, and at oral argument, she repeatedly relies on her status  as a mother with fundamental parental rights as the basis for her claim. In so doing, she repeatedly attempts to distinguish cases where we have upheld strict requirements in the Adoption Act against putative fathers or other individuals lacking fundamental rights from this case. Because these other cases illustrate that there are sets of circumstances where the challenged provisions in this case may be constitutionally applied, they are not facially unconstitutional. Additionally, Mother’s argument hinges on facts specific to this case—she argues that her rights were violated “despite the fact [that] she appeared in the action, the court added her as the Respondent, and she filed an Answer asserting her parental rights.” Because her due process claim hinges on facts specific to this case, and she does not argue that any provision of the Adoption Act would be unconstitutional under every set of circumstances, her due process claim is properly viewed as an as-applied challenge.

3 Utah Code section 78B-6-110(2) provides that “[n]otice of an adoption proceeding shall be served on” certain persons, including the mother of the adoptee.

4 Utah Code section 78B-6-120.1(3) provides that “[c]onsent or relinquishment . . . may be implied by . . . receiving notification of a pending adoption proceeding under Subsection 78B-6-110(6) or of a termination proceeding under Section 78B-6-112 and failing to respond as required.”

5 Utah Code section 78B-6-112(5) provides that “[t]he district court may terminate an individual’s parental rights in a child if . . . the individual . . . received notice [under section 110] and . . . failed to file a motion for relief . . . within 30 days after the day on which the person receives service.”

6 Mother bases her claim on the guarantees of the Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution and of article I, section 7 of the Utah Constitution. All three provisions provide that no person shall be deprived “of life, liberty, or property, without due process of law.”

7 Summerhaze Co., L.C. v. Fed. Deposit Ins. Corp., 2014 UT 28, ¶ 8, 332 P.3d 908 (citation omitted) (internal quotation marks omitted).

8 Swallow v. Jessop (In re United Effort Plan Trust), 2013 UT 5, ¶ 21, 296 P.3d 742 (citations omitted).

9 Id.

10 Id.

11 Id.

12 Id. (alteration in original) (citation omitted).

13 UTAH CODE §§ 78B-6-101 et seq.

14 Mother also argues that the district court erred in striking her answer, barring her from the adoption proceedings, and entering her implied consent to the adoption under Utah Code section 78B-6-120.1. “Motions to strike pleadings or parts thereof are addressed to the judgment and discretion of the trial court. A ruling thereon, except under circumstances which amount to a clear abuse of discretion, will not be disturbed on appeal.” Francis v. State, 2013 UT 65, ¶ 19, 321 P.3d 1089 (internal quotation marks omitted). Because our determination regarding her due process claim makes it unnecessary to decide this claim, we decline to address it. Additionally, the Adoptive Parents argue that Mother failed to preserve her constitutional challenge to the Adoption Act’s scheme. But the record reveals that Mother challenged the district court’s decision on due process grounds on two separate occasions: first in her opposition to the motion to strike and again in her rule 60(b) motion. And so we find that she preserved this issue for appeal.

15 We note that J.N., unlike Mother, has not raised any constitutional challenges to the Adoption Act.

16 UTAH CODE § 78B-6-110(2) (2017) (“Notice of an adoption proceeding shall be served on . . . any person or agency whose consent or relinquishment is required under Section 78B-6-120 or 78B-6-121, unless that right has been terminated by: (i) waiver; (ii) relinquishment; (iii) actual consent, as described in Subsection (12); or (iv) judicial action.”); id. § 78B-6-120(c) (identifying “mother of the adoptee” as a person from whom consent or relinquishment is required before an adoption may take place).

17 Id. § 78B-6-110(6)(a).

18 Id.

19 Id. § 78B-6-110(6)(b).

20 Id. § 78B-6-112(5)(c).

21 Id. § 78B-6-120.1(3)(d).

22 Although Mother categorizes her challenge of the Adoption Act as both a procedural and substantive due process challenge, she does not direct much, if any, of her argument toward the procedural due process standard.

23 In re Adoption of B.Y., 2015 UT 67, ¶ 16, 356 P.3d 1215 (citing United States v. James Daniel Good Real Prop., 510 U.S. 43, 48 (1993)).

24 Id. ¶ 18 (citing Mathews v. Eldridge, 424 U.S. 319, 348 (1976)).

25 Id. ¶ 23.

26 Id. (internal quotation marks omitted) (quoting Gray v. Netherland, 518 U.S. 152, 182 (1996)).

27 See Logan v. Zimmerman Brush Co., 455 U.S. 422, 437 (1982) (“The State may erect reasonable procedural requirements . . . [such as] statutes of limitations . . . . And the State certainly accords due process when it terminates a claim for failure to comply with a reasonable procedural . . . rule.”).

28 In re Adoption of B.Y., 2015 UT 67, ¶ 27 (alteration in original) (citation omitted) (internal quotation marks omitted).

29 Id. ¶ 28.

30 Id. ¶ 32 (citation omitted).

31 Id. ¶ 31 (citation omitted).

32 615 P.2d 1250 (Utah 1980).

33 Id. at 1256.

34 Id. at 1252.

35 Id.

36 Id. at 1256.

37 Id.

38 2014 UT 51, 358 P.3d 1009.

39 Id. ¶ 1.

40 Id. ¶ 11.

41 Id. ¶ 19.

42 Id. ¶ 23.

43 Id. ¶¶ 23–24.

44 Instead, Mother has argued that strict compliance and intervention is unnecessary for a biological mother. This challenge is more properly categorized as a substantive due process challenge.

45 Mother was represented by counsel when she filed her answer.

46 2014 UT 51, ¶ 23.

47 In re Adoption of B.Y., 2015 UT 67, ¶ 41, 356 P.3d 1215 (alteration in original) (internal quotation marks omitted).

48 Jones v. Jones, 2015 UT 84, ¶ 26, 359 P.3d 603 (“When the court has recognized a due process right it deems ‘fundamental,’ it consistently has applied a standard of strict scrutiny to the protection of such a right.”).

49 In re Adoption of J.S., 2014 UT 51, ¶ 56, 358 P.3d 1009 (plurality opinion).

50 2015 UT 67.

51 Id. ¶ 41.

52 Id.

53 Id. ¶¶ 16, 37, 40 (internal quotation marks omitted).

54 Id. ¶ 41 (noting that the father had also “challenge[d] the application of the strict compliance provision . . . under the substantive component of the Due Process Clause.” (emphasis omitted)).

55 Id. ¶ 43. In In re B.Y., we explained that the right of an unmarried father is “merely provisional” until the father complies with the requirements established for the perfecting of that right. Id. This ruling is consistent with the United States Supreme Court’s decision in Lehr v. Robertson, where the Court explained that an unmarried father does not have a recognized parental right until he takes some affirmative action to “grasp” the opportunity to develop a relationship with his child. 463 U.S. 248, 262 (1983). Thus the right at issue in In re B.Y. was not a fundamental parental right, but a provisional right to an “opportunity” to develop a parental right. See id. at 262–63 (“We are concerned only with whether New York has adequately protected [the unmarried father’s] opportunity to form such a relationship.”).

56 In re B.Y., 2015 UT 67, ¶ 43 (determining whether “the prerequisites established by the state [were] arbitrary” (emphasis omitted)).

57 Id. ¶ 46.

58 In re J.P., 648 P.2d 1365, 1374 (Utah 1982); see also In re Adoption of J.S., 2014 UT 51, ¶ 2 (distinguishing between the requirements imposed on unmarried fathers and unmarried mothers).

59 In re J.P., 648 P.2d at 1374–75.

60 In re Adoption of J.S., 2014 UT 51, ¶ 2 (emphasis added).

61 Wells v. Children’s Aid Soc’y of Utah, 681 P.2d 199, 206 (Utah 1984) (citation omitted).

62 In re J.P., 648 P.2d at 1373.

63 See In re Adoption of J.S., 2014 UT 51, ¶ 2 (explaining that an “unwed father’s legal obligation to file the paternity affidavit [was] a rough counterpart to the mother’s commitment,” which is “demonstrated by [the mother’s] decision to carry a child to term”).

64 In re J.P., 648 P.2d at 1375 (emphases added); see also id. at 1372 (explaining that a mother “has a fundamental right, protected by the Constitution, to sustain [her] relationship with [her] child” (emphasis added) (citation omitted) (internal quotation marks omitted)).

65 In fact, the Supreme Court has stated that, “[i]f anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections” than do others. Santosky v. Kramer, 455 U.S. 745, 753 (1982). For this reason, states “must provide . . . parents with fundamentally fair procedures” when moving to destroy parental bonds. Id. at 753–54.

66 Wells, 681 P.2d at 204; see also In re J.P., 648 P.2d at 1372 (“[T]he correlative of parental rights is parental duties. When parents fail to, or are incapable of, performing their parental obligations, the child’s welfare must prevail over the right of the parent.” We have noted, of course, that mothers and fathers may “choose to waive” their parental rights. In re Adoption of J.S., 2014 UT 51, ¶ 2 (emphasis added).

67 In re Adoption of J.S., 2014 UT 51, ¶ 42. By recognizing that statutorily imposed consequences for a failure to comply with procedural requirements infringe on a mother’s fundamental right, we are not suggesting that mothers may never be subject to procedural requirements. Instead, we are merely recognizing that where a procedural requirement—and the statutorily imposed consequences for failing to comply with that requirement— infringe on a fundamental right, that requirement is constitutional only so long as it is narrowly tailored to further a compelling state interest.

68 The dissent argues that the Adoption Act does not authorize the termination of parental rights “without requiring ‘proof of unfitness, abandonment, or neglect’” because, had Mother strictly complied with the procedural requirements of the Act, she could have had an opportunity to defend her parental rights. See infra ¶ 154 n.213 (Lee, A.C.J., dissenting). Not only does this argument ignore the “as-applied” nature of Mother’s substantive due process claim, but it also ignores our case law, which clearly recognizes a mother’s right to maintain her parental rights unless she voluntarily relinquishes them or a court finds that she forfeited them by being an unfit parent or by abandoning or neglecting the child. So where this right is terminated for some other reason— such as in consequence of a mother’s procedural default—the termination of the mother’s parental rights must be reviewed under our strict scrutiny standard. And we note that, contrary to the dissent’s suggestion, this rule does not exempt mothers from constitutionally valid procedural requirements.

69 This assertion is only partially correct. Although the district court noted that the Adoptive Parents had provided sufficient evidence of abuse, unfitness, and neglect in its findings of fact and conclusions of law, it also based its decision to terminate Mother’s parental rights on the fact that Mother’s right to consent had been forfeited under sections 110 and 112, and that under section 120.1 her consent could be implied.

70 UTAH CODE § 78B-6-110(6)(b)(ii).

71 In re Adoption of J.S., 2014 UT 51, ¶ 2 (explaining that a mother’s parental rights include the “right to object to an adoption”); see also In re J.P., 648 P.2d at 1372 (explaining that a mother “has a fundamental right, protected by the Constitution, to sustain [her] relationship with [her] child” (emphasis added) (citation omitted) (internal quotation marks omitted)).

72 See In re K.J., 2013 UT App 237, ¶ 26, 327 P.3d 1203 (explaining that in a typical proceeding to terminate parental rights, although the “petitioner bears the ultimate burden of proving the grounds for termination by clear and convincing evidence, once evidence is presented that would justify termination, the burden shifts to the parent to persuade the court that the [petitioner] had not established [the ground for termination] by clear and convincing evidence.” (alterations in original) (citations omitted) (internal quotation marks omitted)).

73 In re J.P., 648 P.2d at 1372–77 (recognizing a parent’s fundamental right to “maintain parental ties to his or her child,” and “in the care, custody, and management of [his or her] child,” as well as the right of a mother “not to be deprived of parental rights without a showing of unfitness, abandonment, or substantial neglect”).

74 See Jones, 2015 UT 84, ¶ 26.

75 Id. ¶ 27 (quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997)).

76 Although Mother has challenged three sections of the Adoption Act—sections 110, 112, and 120.1—as they work together, it is the strict compliance provision of section 110 that prompted the district court’s termination of Mother’s parental rights. Accordingly, we focus on this requirement in our strict scrutiny analysis.

77 In re Adoption of B.B.D., 1999 UT 70, ¶ 14, 984 P.2d 967.

78 See, e.g., In re Adoption of B.Y., 2015 UT 67, ¶¶ 42–46 (declining to consider a putative father’s substantive due process claim under a strict scrutiny standard because the father had not yet perfected his parental rights and holding that until a putative father perfects his parental rights under the Adoption Act, his rights are “merely provisional” rather than fundamental).

79 See id. ¶¶ 41–46 (holding that “the strict compliance provision of the Adoption Act” was not arbitrary in the context of a putative father’s due process challenge).

80 In re Adoption of B.B.D., 1999 UT 70, ¶ 14 (internal quotation marks omitted).

81 UTAH CODE § 78B-6-102(5)(a).

82 Id.

83 Id.

84 See, e.g., Thurnwald v. A.E., 2007 UT 38, ¶¶ 30, 34, 163 P.3d 623 (concluding that the state had a compelling interest in “speedily identifying those persons who will assume a parental role over newborn illegitimate children,” “in promoting early and uninterrupted bonding between child and parents[,] and in facilitating final and irrevocable adoptions.” (citations omitted) (internal quotation marks omitted).

85 In re Boyer, 636 P.2d 1085, 1090 (Utah 1981). The dissent criticizes us for applying this standard. See infra ¶ 165 (Lee, A.C.J., dissenting). But we are merely applying the standard that has been well-established by our case law. In contrast to this established approach, the dissent suggests that a loss of an indisputably fundamental right does not trigger strict scrutiny review where that loss stemmed from a procedural default. See infra ¶ 217 (Lee, A.C.J., dissenting) (suggesting that “procedures” may never be subject to “substantive due process scrutiny”). Because such an approach would be inconsistent with controlling precedent, we reject it. See infra ¶¶ 51–101.

86 Wells v. Children’s Aid Soc’y of Utah, 681 P.2d at 207 (considering whether any “infringement of the [plaintiff’s] rights not essential to the statute’s purpose ha[d] been identified”).

87 UTAH CODE § 78B-6-110(6)(a).

88 Id. § 78B-6-110(6)(b).

89 Id. § 78B-6-110(6)(a)(ii), (iii).

90 Bair v. Axiom Design, L.L.C., 2001 UT 20, ¶ 9, 20 P.3d 388, abrogated on other grounds by Gillett v. Price, 2006 UT 24, ¶ 2, 135 P.3d 861, as recognized in A.S. v. R.S., 2017 UT 77, ¶ 21, 416 P.3d 465.

91 UTAH CODE § 78B-6-110(6)(b).

92 To be clear, in holding that the strict compliance component of section 110 fails the strict scrutiny test, as applied to Mother in this case, we are not suggesting, as Mother argues in her brief, that the entire motion-to-intervene provision is “meaningless” as applied to biological mothers. In fact, by holding that the timing and substantive requirements of the provision are necessary to further the state’s purposes, see supra ¶¶ 45–46, we have held the opposite. So we are not lightly excusing the procedural requirements of the Adoption Act in this case. Rather, we have narrowed the scope of our opinion to the strict compliance provision in Utah Code section 78B-6-110(6)(b) and to the facts of this case.

We also note that the dissent criticizes our decision on the ground that “strict procedural compliance” is “at a premium” in the “adoption arena.” See infra ¶ 207 (Lee, A.C.J., dissenting). But in so doing, the dissent fails to engage with the specific and narrow reasoning in our decision. Instead, it argues only that “statutory procedures for natural parents to participate in and assert their rights” are a core element in the state’s effort to facilitate adoptions. See infra ¶ 207 (Lee, A.C.J., dissenting). We take no issue with this general statement. But the dissent has failed to explain how the strict compliance requirement would have aided the State’s effort to facilitate adoptions in this case. As we have discussed, in this case, Mother’s timely attempt to intervene provided the court and the Adoptive Parents all of the information that a strictly compliant motion to intervene would have. For this reason, our decision in no way hinders the interests advanced by the procedural requirements of the Adoption Act.

The dissent also suggests that, by subjecting the procedural requirements of the Adoption Act to a substantive due process review, we are foreclosing the state’s ability to impose procedural time bars in the adoption setting. See infra ¶ 213 (Lee, A.C.J., dissenting). But our case law makes clear that procedural requirements have long been subject to substantive due process. And the dissent’s suggestion that subjecting procedural requirements to the demands of substantive due process will upend all procedural requirements misses the mark. Indeed, in this very case, we have upheld other procedural requirements in section 110—including section 110’s thirty-day filing requirement—as being narrowly tailored to further the state’s interest in prompt adoptions.

93 See Jones, 2015 UT 84, ¶ 26.

94 See infra ¶ 179 (Lee, A.C.J., dissenting).

95 The dissent pushes back on the notion that its approach transforms the fundamental nature of the underlying parental rights into something less than fundamental. See infra ¶ 157 n.215 (Lee, A.C.J., dissenting) (“The fundamental nature of the underlying parental right stays the same throughout—my point is just that the right at issue here is distinct from that underlying right.”). But in so doing, the dissent confirms that it is ignoring the termination of the underlying fundamental right altogether. In other words, the dissent confirms that, under its approach, state action to terminate a fundamental parental right need not satisfy strict scrutiny review so long as the parent failed to comply with a procedural requirement—a procedural requirement that need not be narrowly tailored to further a compelling state interest.

96 Although we reject the dissent’s argument because it mischaracterizes the right at issue, we note that our case law does in fact establish that Mother’s right to retain her parental rights is fundamental. We have held that mothers have a fundamental right to “maintain parental ties” to their children, In re J.P., 648 P.2d at 1377, to not be “deprived of parental rights without a showing of unfitness, abandonment, or substantial neglect,” id. at 1375, “to sustain [their] relationship with [their] child,” id. at 1372, and “to object to an adoption,” In re Adoption of J.S., 2014 UT 51, ¶ 2. Because our case law makes clear that Mother has a fundamental right to retain her parental rights, even under the dissent’s characterization of the right at issue the dissent’s argument fails.

97 See infra ¶ 135 (Lee, A.C.J., dissenting) (emphasis added).

98 In re J.P., 648 P.2d at 1375 (explaining that the right of a mother “not to be deprived of parental rights without a showing of unfitness, abandonment, or substantial neglect is so fundamental to our society and so basic to our constitutional order . . . that it ranks among those rights referred to in Article I, [section] 25 of the Utah Constitution and the Ninth Amendment of the United States Constitution as being retained by the people.” (emphasis added); see also id. at 1372 (explaining that a mother “has a fundamental right, protected by the Constitution, to sustain [her] relationship with [her] child” (citation omitted) (internal quotation marks omitted)).

99 Infra ¶ 135 (Lee, A.C.J., dissenting).

100 See infra ¶ 179 (Lee, A.C.J., dissenting).

101 Jones, 2015 UT 84, ¶ 26 (“When the court has recognized a due process right it deems ‘fundamental,’ it consistently has applied a standard of strict scrutiny to the protection of such a right.”).

102 262 U.S. 390, 399 (1923).

103 Id. at 401 (emphasis added).

104 See Troxel v. Granville, 530 U.S. 57, 65–73 (2000).

105 See Smith v. Org. of Foster Families For Equality & Reform, 431 U.S. 816, 842–47 (1977).

106 See supra ¶¶ 33–37.

107 Pierce v. Soc’y of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 534 (1925).

108 Wisconsin v. Yoder, 406 U.S. 205, 233 (1972).

109 Troxel, 530 U.S. at 66 (compiling cases).

110 Id. at 65.

111 See infra ¶ 135 (Lee, A.C.J., dissenting) (emphasis added).

112 In re adoption of J.S., 2014 UT 51, ¶ 2 (“Unwed mothers acquire parental rights—and the accompanying right to object to an adoption—as a result of the objective manifestation of the commitment to the child that is demonstrated by their decision to carry a child to term.”).

113 In re J.P., 648 P.2d at 1377 (“For the reasons and upon the precedents discussed above, we conclude that the Utah Constitution recognizes and protects the inherent and retained right of a parent to maintain parental ties to his or her child . . . .” (emphasis added)).

114 See infra ¶ 129 (Lee, A.C.J., dissenting). The dissent argues that our approach “conflates the parental conduct that is being terminated . . . with the conduct triggering that termination.” See infra ¶ 146 n.211 (Lee, A.C.J., dissenting). From this it appears that, in the dissent’s view, the focus of our substantive due process review should not be on the state action at issue (termination of all parental rights) nor on the nature of the rights being terminated (fundamental) but on whether a parent’s conduct in failing to comply with a procedural requirement was also constitutionally protected conduct. So it follows that, under the dissent’s approach, where the parent lacked a constitutionally protected right to not comply with a procedural requirement, the state is free to terminate all of the parent’s constitutionally protected rights, including fundamental ones, even where the procedural requirement allegedly justifying the state’s action is not narrowly tailored to further a compelling state interest (the test the state usually must pass before it terminates a fundamental right).

115 See infra ¶ 146 (Lee, A.C.J., dissenting).

116 See infra ¶ 146 (Lee, A.C.J., dissenting).

117 Yoder, 406 U.S. at 232.

118 Id.

119 431 U.S. at 839 (emphasis added).

120 Id. at 845.

121 491 U.S. 110 (1989).

122 See infra ¶ 147 (Lee, A.C.J., dissenting).

123 491 U.S. at 125.

124 Id., 491 U.S. at 124 (“Thus, the legal issue in the present case reduces to whether the relationship between persons in the situation of Michael and Victoria [(an unmarried father’s relationship with his daughter, who was born while her mother was married to another man)] has been treated as a protected family unit under the historic practices of our society, or whether on any other basis it has been accorded special protection.”).

125 Pierce, 268 U.S. at 534.

126 Yoder, 406 U.S. at 233.

127 Troxel, 530 U.S. at 66 (compiling cases).

128 405 U.S. 645 (1972).

129 Id. at 647.

130 Id. at 658.

131 Id. at 651.

132 Id.

133 Id.

134 Id.

135 434 U.S. 246 (1978).

136 Id. at 255 (citation omitted).

137 Id. (describing the parental right as an interest in having a “relationship between parent and child”).

138 See also Lehr v. Robertson, 463 U.S. 248, 256–58 (1983) (discussing the parental right variously as an interest in the “intangible fibers that connect parent and child,” “family relationships,” and as including fundamental rights previously recognized by Supreme Court precedent).

139 648 P.2d at 1366.

140 Id. at 1372.

141 681 P.2d at 202.

142 2014 UT 51, ¶ 38.

143 Id. ¶ 40 (citation omitted).

144 Id. ¶ 39 (emphasis added).

145 The dissent relies on our decision in In re adoption of J.S. to argue that we must narrowly frame the relevant “conduct” at issue. But the narrow framing at issue in that case did nothing to limit the scope of relevant parental conduct. Instead, it more narrowly construed the parental status—to exclude unmarried fathers who had not perfected their parental rights—deserving full due process protection. See id. ¶ 2 (“Unwed mothers acquire parental rights— and the accompanying right to object to an adoption—as a result of the objective manifestation of the commitment to the child that is demonstrated by their decision to carry a child to term. An unwed father’s legal obligation to file the paternity affidavit is a rough counterpart to the mother’s commitment.”). So our decision in In re adoption of J.S. merely reaffirmed an important distinction, based on parental status, between mothers and unmarried fathers that had previously been established in our case law. See In re J.P., 648 P.2d at 1374–75 (distinguishing between the variation in the protections afforded unwed fathers before noting that, “[i]n contrast, no similar variation exists among mothers who are unwed”).

146 In re J.P., 648 P.2d at 1375 (explaining that the right of a mother “not to be deprived of parental rights without a showing of unfitness, abandonment, or substantial neglect is so fundamental to our society and so basic to our constitutional order . . . that it ranks among those rights referred to in Article I, [section] 25 of the Utah Constitution and the Ninth Amendment of the United States Constitution as being retained by the people.” (emphasis added) (citation omitted)); see also id. at 1372 (explaining that a mother “has a fundamental right, protected by the Constitution, to sustain [her] relationship with [her] child” (citation omitted) (internal quotation marks omitted)).

147 Id. at 1374–75.

148 Id. at 1374 (internal quotation marks omitted).

149 Id.

150 Id. at 1375.

151 We note that in later cases we have clarified that an unmarried father may perfect his right by complying with certain provisions in the Adoption Act, which include such requirements as filing an affidavit of paternity. See, e.g., In re Adoption of J.S., 2014 UT 51, ¶ 2 (explaining that the provision describing a paternity affidavit “prescribes the requirements that an unwed father must meet in order to secure the right to assert his parental rights and object to an adoption”).

152 In re J.P., 648 P.2d at 1375.

153 Id. (emphasis added).

154 2014 UT 51.

155 Id. ¶ 2.

156 Id. By “saying that the established procedures determine how and whether [Mother’s parental] right is preserved,” the dissent fails to account for this key distinction. Infra ¶ 205 (Lee, A.C.J., dissenting).

157 In re Adoption of J.S., 2014 UT 51, ¶ 2.

158 Id. (emphases added).

159 Id. ¶ 6.

160 Id. ¶ 22 (emphases omitted).

161 Id.

162 Id. ¶ 39.

163 Id. ¶ 54.

164 Id. ¶ 56.

165 In re J.P., 648 P.2d at 1375.

166 Id. at 1373.

167 Id. at 1372.

168 Lehr, 463 U.S. at 258 (emphasis added) (citation omitted).

169 See infra ¶ 126 (Lee, A.C.J., dissenting).

170 See infra ¶ 133 (Lee, A.C.J., dissenting).

171 See infra ¶ 133 n.208 (Lee, A.C.J., dissenting).

172 See infra ¶ 163 (Lee, A.C.J., dissenting).

173 Lehr, 463 U.S. at 258 (emphasis added) (citation omitted). The dissent cites two cases, Yakus v. United States, 321 U.S. 414, 444 (1944) and State v. Rettig, 2017 UT 83, ¶¶ 15, 17, 416 P.3d 520, for the proposition that constitutional rights may be forfeited through procedural default. We agree with this assertion. But neither Yakus nor Rettig stand for the proposition that a party can be barred from challenging an unconstitutional procedural requirement due to that party’s failure to comply with that unconstitutional requirement. That proposition would be inconsistent with “the longstanding law of procedural default.”

174 New York v. Hill, 528 U.S. 110, 116 (2000). Although the Supreme Court in Hill addresses the issue of express waiver, rather than forfeiture, the principle for which we cite Hill applies equally in forfeiture cases. Waiver is sometimes used as an umbrella term encompassing all statements and acts that result in any loss of a right without a disposition on the merits. And we note that the Hill Court supported its statement—that “waiver is not appropriate when it is inconsistent with the provision creating the right sought to be secured”—by citing a case that is best characterized as a forfeiture case. Id. at 116 (citing Crosby v. United States, 506 U.S. 255, 258–59 (1993) (holding that a criminal defendant’s right to be present at the beginning of trial cannot be forfeited through a failure to be present)).

175 In re B.Y., 2015 UT 67, ¶ 41 (alteration in the original) (internal quotation marks omitted). So, by arguing that Mother is precluded from challenging the fairness of procedural bars on substantive due process grounds, the dissent would have us implicitly overturn the rule we established in In re B.Y.

176 See, e.g., Quilloin, 434 U.S. at 254–55 (applying a substantive due process analysis to a challenge of a procedural provision); Stanley, 405 U.S. at 650 (applying a substantive due process analysis to an Illinois “procedure”).

177 See also Stanley, 405 U.S. at 647 (applying the strict scrutiny standard where a state terminated a fundamental right through a “method of procedure”). The dissent states that strict scrutiny need not be applied in every instance in which a state terminates parental rights, but the only support for this position comes from cases far outside the parental rights field of law. The dissent argues that the “‘fundamental’ nature of a given right is not alone enough to trigger strict scrutiny of any procedural regulation of that right.” See infra ¶ 159 (Lee, A.C.J., dissenting). It then cites cases involving abortion rights, the right to free speech, the right to free exercise of religion, and the right to vote. See infra ¶ 159 (Lee, A.C.J., dissenting). But we do not view these cases, in which the Supreme Court articulated exceptions to the general rule based on the unique nature of the right at issue, to be relevant to this case. This case deals with the termination of all parental rights of a biological mother. And controlling precedent has clearly set forth the standard of scrutiny to be applied where a state attempts to terminate all of a biological mother’s fundamental parental rights. For this reason, the cases the dissent cites from other areas of law are unpersuasive.

178 Hill, 528 U.S. at 116.

179 ”A man is presumed to be the father of a child if . . . he and the mother of the child are married to each other and the child is born during the marriage.” UTAH CODE § 78B-15-204(1)(a).

180 UTAH R. CIV. P. 24 (“Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.”).

181 In their opposition on appeal, the Adoptive Parents allege that J.N. failed to notify the second district court of the adoption pending in this case, as required by rule 100 of the Utah Rules of Civil Procedure. Although such a failure could seriously undermine the validity of J.N.’s marriage decree, we do not address it here because the marriage decree has not been appealed.

182 885 P.2d 791 (Utah 1994).

183 Id. at 793–94.

184 Id. at 793.

185 See generally id.

186 UTAH CODE § 30-1-4.5(1) (emphasis added).

187 Obergefell v. Hodges, 135 S. Ct. 2584, 2601 (2015).

188 Id.

189 Id.; see also Sanchez v. L.D.S. Soc. Servs., 680 P.2d 753, 755 (Utah 1984) (“Marriage is the institution established by society for the procreation and rearing of children.”).

190 See State v. Holm, 2006 UT 31, ¶ 32, 137 P.3d 726 (“[Because] a marriage license represents a contract between the State and the individuals entering into matrimony . . . [the defendant], as a result of his [unsanctioned marriage] ceremony with [his alleged spouse], [is] not entitled to any legal benefits attendant to a state-sanctioned marriage.”).

191 Similar to our holding in Scott v. Scott, we find that the relevant date for consideration is the date the adoption petition was filed. 2017 UT 66, ¶ 30, 423 P.3d 1275 (requiring an ex-spouse to be cohabitating with a boyfriend at the time the petition to terminate alimony was filed); see also Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 571 (2004) (“[J]urisdiction of the court depends upon the state of things at time of the action brought. . . . . [The time-of-filing rule] measures all challenges to subject-matter jurisdiction premised upon diversity of citizenship against the state of facts that existed at the time of filing.” (internal quotation marks omitted)); Int’l Trading Corp. v. Edison, 109 F.2d 825, 826 (D.C. Cir. 1939) (requiring a “duty [to] exist at the time of filing a petition for mandamus”); Koch v. Carmona, 643 N.E.2d 1376, 1381 (Ill. App. Ct. 1994) (evaluating an attorney’s conduct “under the circumstances existing at the time of the filing”).

192 See In re Baby Girl T., 2012 UT 78, ¶ 11, 298 P.3d 1251 (“[A]n unwed father’s biological connection to his child does not automatically grant him a fundamental constitutional right to parenthood. Rather, an unwed father has a provisional right to parenthood, and due process requires only that an unwed father have a meaningful chance to preserve his opportunity to develop a relationship with his child.” (citation omitted) (internal quotation marks omitted)).

193 UTAH CODE § 78B-6-110(1)(a)(ii).

194 Id. § 78B-6-110(3).

195 Id. § 78B-6-110(1)(a)(i); see also In re Baby Girl T., 2012 UT 78, ¶ 11 (“The Act’s requirements operate under the presumption that an unwed father knows that his ‘child may be adopted without his consent unless he strictly complies with the provisions of [the Act].’” (alteration in original) (citing UTAH CODE § 78B-6-102(6)(f))) .

196 We note that a potential presumptive father could protect his right to notice of an adoption by obtaining judicial recognition of his common-law marriage before an adoption petition is filed or he could protect his right to intervene by obtaining a judicial marriage decree, either within the adoption proceeding or as part of another case, within thirty days of the date on which the adoption petition was filed. Additionally, we note that in most cases section 110(2)(g) would guarantee a potential presumptive father the right to notice even in the absence of a judicial marriage decree because he would have been living in the same home as the child and holding himself out to be the child’s father. UTAH CODE § 78B-6-110(2)(g) (requiring notice to be served on “a person who is . . . openly living in the same household with the child at the time . . . and . . . [is] holding himself out to be the child’s father”). J.N. does not argue that he was entitled to notice under this provision.

197 J.N. argues that at the time the petition was filed he could not have intervened because his marriage had not yet been judicially recognized. Not only does this argument undermine J.N.’s contention that his common-law marriage was legally effective at the time the adoption proceeding commenced, but it also ignores the fact that he could have sought judicial recognition of his marriage within this case.

198 We note that to hold otherwise would retroactively impose a burden on the Adoptive Parents as well as inject unnecessary delay and uncertainty into the adoption proceeding. This is something we seek to avoid. See id. § 78B-6-102(6)(c) (“A certain degree of finality is necessary in order to facilitate the state’s compelling interest. The Legislature finds that the interests of the state, the mother, the child, and the adoptive parents described in this section outweigh the interest of an unmarried biological father who does not timely grasp the opportunity to establish and demonstrate a relationship with his child in accordance with the requirements of this chapter.”).

199 See UTAH R. CIV. P. 24(a) (granting an intervention of right only if there is a “timely application” to intervene).

200 I also agree with the dissent’s observation that “[t]his court may well have the authority to prescribe a procedural default rule that could govern in a case like this one,” see infra ¶ 123 n.201, pursuant to our constitutional power to “adopt rules of procedure and evidence to be used in the courts of the state,” see UTAH CONST. art. VIII, § 4. But as the dissent notes, Mother did not raise this issue.

201 This court may well have the authority to prescribe a procedural default rule that could govern in a case like this one. See UTAH CONST. art. VIII, § 4 (recognizing this court’s power to “adopt rules of procedure and evidence to be used in the courts of the state”); State v. Rettig, 2017 UT 83, ¶¶ 58, 58 n.12, 416 P.3d 520 (strongly suggesting that filing deadlines triggering procedural default or forfeiture of legal rights are “procedural” and thus within our constitutional power to establish). The Adoption Act’s default rule, moreover, may be subject to constitutional challenge on the ground that it is procedural and the legislature has not properly exercised its authority to amend our rules. See Rettig, 2017 UT 83, ¶¶ 52, 60 (expressing “doubts” about whether a statutory rule of procedural default would withstand scrutiny under article VIII, section 4 of the Utah Constitution but declining to reach the question because it had not been raised); Brown v. Cox, 2017 UT 3, ¶¶ 17–18, 387 P.3d 1040 (identifying the process the legislature must follow to amend our rules). This court has not enacted any such rule, however. And the mother has not raised a constitutional claim under article VIII, section 4. For that reason this question is not properly before us.

202 The court’s procedural due process holding, in fact, follows from established principles of forfeiture. Most legal rights are subject to forfeiture by procedural default. See Yakus v. United States, 321 U.S. 414, 444 (1944) (noting that “constitutional right[s] may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right”); see also Rettig, 2017 UT 83, ¶¶ 15, 17 (noting that “procedural bar[s]” such as rules “requir[ing] parties to raise issues or arguments at specified times and by certain means” on penalty of losing the right to do so are “commonplace” and “embedded in our case law” (citations omitted)). The due process right to be heard is no exception. If a party fails to avail herself of an established means of asserting a legal right, then that right is forfeited. Such a party is in no position to complain of the lack of a constitutionally guaranteed “opportunity to be heard” as that opportunity was lost not as a result of state action but by an act of the party’s agent (her counsel).

203 The mother asserts both federal and state grounds for a new right of substantive due process, supra ¶ 14 n.6, but the majority never draws any distinction between the two grounds in its opinion, and it relies exclusively on precedent pertaining to federal due process. So I presume that it is establishing a new right of federal due process.

204 The majority’s “status” framing also runs into a line of United States Supreme Court precedent that cuts against its framework. In referring to “status,” the majority is noting that parental rights are fundamental. See supra ¶¶ 60, 79. But the fundamental nature of a given right does not dictate the application of strict scrutiny to all regulations of that right. This is apparent from an important line of voting rights cases, which expressly reject the idea that all regulations of voting rights trigger strict scrutiny. See infra ¶¶ 159– 61 (citing Burdick v. Takushi, 504 U.S. 428 (1992) and Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008)).

205 See Roe v. Wade, 410 U.S. 113, 152–53 (1973); Griswold v. Connecticut, 381 U.S. 479, 484–85 (1965).

206 Washington v. Glucksberg, 521 U.S 702, 722–23 (1997); see also id. (rejecting other broad framings of the right at issue, including the right to “choose how to die,” the right to “control of one’s final days,” the right to “choose a humane, dignified death,” and the right to “shape death”).

207 See, e.g., Rick Kozell, Note, Striking the Proper Balance: Articulating the Role of Morality in the Legislative and Judicial Processes, 47 AM. CRIM. L. REV. 1555, 1573 (2011) (explaining that “the Court has failed to articulate a method for determining the proper level of generality at which a substantive due process inquiry should be performed” despite the fact that “the level of generality with which the Court defines the conduct in question . . . often affects whether the Court finds that that conduct is entitled to protection based on history and tradition”); John F. Basiak, Jr., Inconsistent Levels of Generality in the Characterization of Unenumerated Fundamental Rights, 16 U. FLA. J.L. & PUB. POL’Y 401, 403 (2005) (pointing out that “when asked to recognize a fundamental right under the Due Process Clause of the Fourteenth Amendment, the U.S. Supreme Court has failed to articulate a substantial justification for the level of generality in characterizing the legal issue” (citations omitted)); David Crump, How do the Courts Really Discover Unenumerated Fundamental Rights? Cataloguing the Methods of Judicial Alchemy, 19 HARV. J.L. & PUB. POL’Y 795, 863–71 (1996) (describing the dilemma as “[d]etermining the reach of fundamental rights by defining the degree of abstraction” for “characterizing the relevant tradition”); Laurence H. Tribe & Michael C. Dorf, Levels of Generality in the Definition of Rights, 57 U. CHI. L. REV. 1057, 1058 (1990) (rejecting a methodology that requires narrow framing of substantive due process rights while acknowledging that “[t]he selection of a level of generality necessarily involves value choices”).

208 The majority tries to avoid this characterization by describing the right at issue as the mother’s “‘retained’ fundamental right.” Supra ¶ 56. But asserting that a fundamental right is “retained” merely begs the question: retained as of when and by what acts? The mere possession of a fundamental right does not forever insulate the mother from ever losing that right. It simply means that she retains it prior to the initiation of any legal proceedings. The majority concedes the general point—acknowledging that a fundamental right may be lost through procedural default. See supra ¶ 98 (acknowledging that “’fundamental’ rights may be extinguished through the operation of procedural provisions . . . where those provisions survive strict scrutiny review”). It just obviates the forfeiture here through the doctrine of substantive due process. Supra ¶ 98. The court is holding that a mother has a fundamental right to retain her parental rights despite her procedural default because the underlying parental right itself is fundamental. But that is circular. And it is a novel, sweeping extension of existing case law.

209 It is true to a point that “the case law clearly establishes that mothers have a ‘retained’ fundamental right in their children.” Supra ¶ 79. But the key question is “retained” as of when, and in what procedural context? No prior court has ever established a mother’s right to retain her parental rights despite the kind of procedural default that would normally result in a forfeiture. So in that sense this case presents a question of first impression. I think the answer follows clearly from the framing of the inquiry in J.S. The majority concludes otherwise. But it cannot properly be heard to insist that its decision follows from established case law.

210 The majority points to Meyer v. Nebraska, 262 U.S. 390 (1923) in support of its view that the right at issue in today’s case should be defined by “the individual’s status as a parent,” supra ¶ 59, rather than by the “form of governmental interference,” supra ¶¶ 62–63. In light of the level of generality problem discussed herein, this distinction is inapposite. Regardless, the Meyer court’s discussion of a parent’s right to control the education of her children does not speak to the issue in this case—whether a fundamental parental right encompasses the right to be free from the normal rules of procedural default.

211 The majority complains that my framing is wrong because I “fail[] to identify any parental conduct.” Supra ¶ 65. Continuing the thought, the majority says that the proper framing must consider conduct “directed at the parent’s child”—the “parents’ interactions with their children and . . . whether the parent had a fundamental right to so interact”—“not conduct directed at, or from, the State.” Supra ¶ 66. To support this view, the court cites a United States Supreme Court case, Wisconsin v. Yoder, 406 U.S. 205, 232 (1972), that maintains the focus on this form of parental conduct. See supra ¶¶ 66–68.

But Yoder is unhelpful. And the court’s premises are nothing more than a restatement of its ultimate holding—certainly not a reflection of any established law. The majority’s framing conflates the parental conduct that is being terminated (“the entire bundle of parental rights” and “conduct inherent in the parent-child relationship,” supra ¶ 73) with the conduct triggering that termination. Forfeiture of parental rights is triggered by procedural default on the part of the parent. And the acts leading to a procedural default are the relevant “parental conduct” in a case like this one.

This case presents a question of first impression. And it is hardly surprising that in the very different context of deciding whether a parent has parental rights in the first place, courts have not focused on “conduct directed at, or from, the State.” Supra ¶ 66. That said, no court has ever held that we may not consider a parent’s conduct “directed at, or from, the State” in deciding whether there is a substantive due process right that forecloses the effects of a procedural bar. What other conduct would we consider in deciding the constitutionality of a procedural bar? And if a parent defaults her parental rights, how can that be anything other than “parental conduct”?

In some settings, it is certainly true that the inquiry into a parent’s fundamental rights is based on parental conduct “directed at” the child, and not “at, or from, the State.” But there is no universal rule to this effect. And the majority’s framing cannot hold in the context of forfeiture by procedural default unless we mean to foreclose the possibility of such forfeiture altogether—which of course is the key question presented in this case. The court’s decision accomplishes that task. But it finds no support in any relevant authority in so doing.

212 In a related critique, the majority chides me for denying the right at issue “the heightened protection our case law would typically provide [it].” Supra ¶ 57 (emphasis added). But this point suffers from the same misstep. The court is again characterizing the purported fundamental right at the highest level of generality, presuming that the right at issue encompasses the right to avoid procedural default—that such protection is “typical.” This is incorrect. The majority extends this protection in this case of first impression—and a protection cannot be “typical” if it has not been extended before.

213 The Adoption Act did not authorize the district court to terminate a mother’s parental rights without requiring “proof of unfitness, abandonment, or neglect.” It required proof on those points as a prerequisite to parental termination, and afforded the mother an avenue to advance her views on these questions. UTAH CODE § 78B-6-110(6)(a). The statute admittedly does allow for termination without a finding of unfitness, etc. in the event of a default by the mother—failure to comply with the statutory procedures for her appearance as a party. UTAH CODE § 78B-6-112(5)(c) (2015). But that doesn’t mean that the statute exempts mothers from the requirement of proof of grounds for termination. It just means that the statute prescribes specific procedures for a mother to assert her position in court. And it shows that the Adoption Act is in line with our longstanding law of forfeiture or procedural default—which provides that most any party may lose her rights by the failure to assert them in the manner and at the time required by law. The mother did not lose her parental rights, in other words, as a result of a statute that eliminated a requirement of proof of grounds for termination for a class of parents. She lost her rights as a result of her failure to avail herself of procedures afforded by law for her to assert her position on such grounds.

The majority claims that this position “ignore[s] the ‘as-applied nature of Mother’s substantive due process claim”—presumably because in this case the mother’s parental rights were terminated without proof of unfitness, abandonment, or neglect. Supra ¶ 38 n.68. But that will always be the case when parental rights are terminated by a parent’s procedural default. The majority also insists that a mother “maintain[s] her parental rights unless she voluntarily relinquishes them or a court finds that she forfeited them by being an unfit parent or by abandoning or neglecting the child.” Supra ¶ 38 n.68. This is true as far as it goes. But the majority errs in its failure to read this requirement against the longstanding background principle of procedural default. See Yakus v. United States, 321 U.S. 414, 444 (1944) (noting that “constitutional right[s] may be forfeited . . . by the failure to make timely assertion of the right”); see also Rettig, 2017 UT 83, ¶¶ 15, 17 (explaining that “procedural bar[s]” such as rules “requir[ing] parties to raise issues or arguments at specified times and by certain means” on penalty of losing the right to do so are “commonplace” and “embedded in our caselaw”(citations omitted).

214 In so concluding I have not “avoid[ed] the central question presented by Mother’s substantive due process claim.” Supra ¶ 96. I have simply applied the applicable substantive due process standard from J.S. and concluded that the mother has failed to carry her burden under that standard. The majority thus misstates my position. I am not saying that “‘procedures’ may never be subject to ‘substantive due process scrutiny’,” supra ¶ 43 n.85, that “a party can be barred from challenging an unconstitutional procedural requirement due to that party’s failure to comply with that unconstitutional requirement,” supra ¶ 94 n.173, or that the mother in this case is “precluded from challenging the fairness of procedural bars on substantive due process grounds,” supra ¶ 98 n.175. The mother has every right to mount such a substantive due process challenge. I am only insisting that she do so in compliance with the test put forth in J.S.—a test that frames the issue narrowly by requiring “a specific showing” of a “precise interest” that is “deeply rooted” in history and tradition. In re J.S., 2014 UT 51, ¶ 57 (plurality opinion).

And it is because the mother failed to make the showing required by our precedent that I would decline to strike down the challenged procedural requirement on substantive due process grounds. I have not “assume[d], without analysis, that the procedural requirement that triggered Mother’s default was constitutional.” Supra ¶ 96. Nor have I “argue[d] that the procedural requirement that authorized the State to terminate Mother’s fundamental parental rights [wa]s constitutional because Mother failed to comply with that procedure.” Supra ¶ 97. I agree with the majority that such an approach would be circular. But it is not the approach that I have taken. And the majority has cited no part of my opinion to support its contention that I claim that the Act’s strict compliance provision is constitutional because the mother defaulted under it.

215 The majority also misses the mark in characterizing my position as resting on the notion that “strict compliance [i]s necessary to preserve the fundamental nature of [the mother’s] rights.” Supra ¶ 88. The fundamental nature of the underlying parental right stays the same throughout—my point is just that the right at issue here is distinct from that underlying right. The right at issue is the right to be exempt from forfeiture by procedural default (unless the defaulted procedure survives strict scrutiny). And it is this difference in characterization of the right at issue (based on different levels of generality) that underlies much of my disagreement with the majority. See, e.g., supra ¶¶ 146–52.

216 Professor Winkler has further explained that the notion that fundamental rights always trigger strict scrutiny “remains popular because it makes a rather complex doctrinal reality quite simple and easy to memorize,” but that “[s]uch simplicity[] . . . comes at considerable cost . . . breeding confusion and misunderstanding about how constitutional law works.” Adam Winkler, Fundamentally Wrong About Fundamental Rights, 23 CONST. COMMENT. 227, 239 (2006).

217 The majority concedes the narrow framing in J.S. but attempts to cabin that framing by arguing that J.S. “did nothing to limit the scope of relevant parental conduct” but instead “more narrowly construed the parental status—to exclude unmarried fathers who had not perfected their parental rights—deserving full due process protection.” Supra ¶ 77 n.145. The majority’s point seems to be that a holding dealing only with “status” would not be binding when it comes to “conduct.” I disagree with the court’s premise and with its conclusion. First, I don’t think the narrow framing in J.S. dealt with status as opposed to conduct. Second, even accepting the majority’s premise for the sake of argument, I see no reason why the level of generality would be different for “conduct” as opposed to “status”; the majority itself posits that the nature of the right at issue is defined by both the conduct and status of the parent. See supra ¶¶ 59, 62, 78.

218 J.S. admittedly involved the rights of a putative father. And the substantive rights of an unmarried father are concededly only inchoate—“merely provisional.” See supra ¶¶ 84, 86. But the majority misses a key point in resting its decision on the fact that a mother’s parental rights are automatically fundamental. While this is true, it leaves unanswered the question of whether and to what extent a party with rights that are concededly fundamental may ignore existing procedures for the assertion of those rights without suffering the consequence of a default. The answer to that question cannot be the bare assertion that the underlying right is fundamental. That is circular. And it overrides the strict standard set forth in the case law.

219 The majority also claims support for its view in the dictum in New York v. Hill, 528 U.S. 110, 116 (2000)—the notion that forfeiture “is not appropriate when it is inconsistent with the provision creating the right sought to be secured.” Supra ¶ 98 n.174. In the majority’s view this means that a decision allowing forfeiture “to defeat Mother’s substantive due process claim in this case would be inconsistent with the Due Process Clause.” Supra ¶ 98. But that is entirely circular. The court is asserting that the Due Process Clause prohibits forfeiture in this case because such forfeiture is inconsistent with the Due Process Clause.

That does not follow from Hill. That case, for one thing, deals with express waiver, not forfeiture by procedural default. And one of the two cases cited in support of the quoted statement is also an express waiver case. See Hill, 528 U.S. at 116 (citing Smith v. United States, 360 U.S. 1, 9 (1959)). The other case, emphasized by the majority, is admittedly a forfeiture case. See supra ¶ 98 n.174 (citing Crosby v. United States, 506 U.S. 255, 258–59 (1993)). Crosby held that a criminal defendant’s right to be present at trial cannot be forfeited by failure to appear. 506 U.S. at 258–59. But the Crosby court based its holding on well-established case law finding that specific right to be unwaivable. 506 U.S. at 259. In other words, the right to exemption from the normal consequence of procedural default (forfeiture) was both narrowly framed and supported by history and tradition as shown by the long line of case law establishing that right. And that is surely not the case here—the majority cites not a single case establishing the right to avoid forfeiture in this context. The court’s cited case law is accordingly unhelpful to it. Hill (and the cases it cites) are by no means a general license for a right to avoid forfeiture despite a procedural default, and on the contrary supports the approach I advocate for here.

220 See, e.g., IOWA CODE § 232.112 (stating that the child’s parents are “necessary parties to a termination of parent-child relationship proceeding and are entitled to receive notice and an opportunity to be heard”); MINN. STAT. § 260C.163(2) (parents of a child have “the right to participate in all proceedings on a petition” to terminate parental rights or a petition for an adoption); MO. REV. STAT. §§ 211.453 (requiring a petition for termination of parental rights be served on the biological mother and informing the mother of her right to attend and participate in the dispositional hearing); 23 PA. CONS. STAT. § 2513 (requiring that notice be given to the parents before their rights are terminated and allowing them to freely participate in the hearing); S.C. CODE ANN. §§ 63-7-2550, -2560 (requiring a petition for termination of parental rights be served on the biological mother and guaranteeing the mother the right to legal counsel during the proceedings).

221 See, e.g., FLA. STAT. § 39.801(7) (permitting termination of parental rights based on a failure to appear at a scheduled hearing); OKLA. STAT. tit. 10A, § 1-4-905 (same); see also, e.g., C.R. v. Dep’t of Children & Families, 225 So.3d 393, 394-95 (Fla. Dist. Ct. App. 2017) (terminating a mother’s parental rights following her failure to appear at trial); In re H.L.L., 179 S.W.3d 894 (Mo. 2005) (en banc) (terminating a father’s parental rights based on his failure to appear at a termination hearing); In re Welfare of S.I., 337 P.3d 1114, 1115 (Wash. Ct. App. 2014) (terminating a mother’s parental rights based on her failure to appear at a termination hearing).

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

2019 UT App 208 – THE UTAH COURT OF APPEALS

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

Opinion
No. 20190184-CA
Filed December 19, 2019

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

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

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

CHRISTIANSEN FORSTER, Judge:

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

BACKGROUND

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

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

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

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

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

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

ISSUE AND STANDARD OF REVIEW

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

ANALYSIS

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

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

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

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

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

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

CONCLUSION

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

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

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

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

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

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2019 UT App 204 – In re H.F. incorrect analysis terminating parental rights

2019 UT App 204 – THE UTAH COURT OF APPEALS

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

Opinion
No. 20180348-CA
Filed December 12, 2019

Third District Juvenile Court, Salt Lake Department
The Honorable Julie V. Lund
No. 1100472

Scott L. Wiggins and Lisa Lokken, Attorneys for Appellant
Joshua P. Eldredge, Attorney for Appellee
Martha Pierce, Guardian ad Litem

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

CHRISTIANSEN FORSTER, Judge:

¶1           J.F. (Mother) appeals from the juvenile court’s termination of her parental rights to H.F. (Child). We reverse and remand for further proceedings.

BACKGROUND

¶2           Child was born in December 2012. Soon after Child’s birth, Mother discovered that her husband, E.F. (Father), had been using drugs. Suffering from postpartum depression, Mother also began using drugs with Father as a means of self-medicating.

¶3           In March 2014, the Division of Child and Family Services (DCFS) removed Child from Mother and Father’s home as a result of their drug use. Upon removal, DCFS placed Child with Mother’s parents (Grandparents). During this time, Grandparents facilitated visitation between Child and Father, as well as Father’s extended family.

¶4           Soon after Child was removed from the parents’ home, Mother began a relationship with “a really bad guy.” She left Utah with him, and they began committing crimes together. Eventually, the pair were arrested, convicted of multiple crimes, and incarcerated.

¶5           Conversely, Father began participating in drug treatment in June 2014. After completing treatment, he became involved in various peer support groups to help others with drug addiction and even obtained a full-time job as a peer recovery coach for a nonprofit addiction-recovery agency. In March 2015, Father filed for divorce from Mother and was granted a default divorce awarding him full legal and physical custody of Child. In May 2015, upon the State’s motion, the juvenile court terminated its jurisdiction and DCFS involvement. After Father regained custody of Child, Grandparents continued to provide regular daycare for Child.

¶6           In July 2016, Father moved the juvenile court to terminate Mother’s parental rights. Father was engaged to be married, and his fiancée (Fiancée) wanted to adopt Child, but they had not yet set a wedding date and were not yet living together.[1] Grandparents “had a heated conversation with” Father about his termination petition, and subsequently, he put Child in full-time daycare and did not permit Grandparents to see Child as often.

¶7           At Mother’s termination trial in December 2017, her former criminal attorney expressed his belief that Mother’s criminal actions had been “very much influenced by” her co­defendant but that she “was a model defendant”; continually showed concern for her family and a desire to take care of her children;[2] had come to understand, through participation in counseling, her responsibilities and the detrimental effects of her co-dependent relationship with her co-defendant; and ultimately told the truth about the criminal incidents even though her co­defendant was damaged by her admissions. Mother was still incarcerated at the time of the termination trial but was due to be released in April 2019. She had been participating in a voluntary drug-treatment program. She testified that prior to Child’s removal, she was his “sole care provider.” She testified that she has a bond with Child, that she has had regular telephone and video calls with him since losing custody and sends him letters, that Child had expressed his desire to be reunited with Mother, and that she wants to have “visitation as much as possible” and to “be in [Child’s] life as much as [she] can.” She testified that she regrets her past decisions and their effect on her children, but she also could not rule out the possibility of a relationship with her co-defendant when he is released from prison in eight or nine years.

¶8        Father testified that he was willing to support a continuing relationship between Child and Mother following termination of her rights so long as it was “safe” for Child. Although Father did not discourage Child’s contact with Mother, he did not directly facilitate Mother and Child’s contact; rather, this contact took place when Child visited Grandparents. Both Father and Fiancée testified that Child has a very good relationship with Fiancée, that she treats him like her own child, and that Child sees her as his mom. Father testified that he believed Child’s relationship with Mother’s family was “beneficial.” He claimed that Child’s relationship with Mother’s family would not change if Mother’s rights were terminated. He admitted that he “could make a better effort in . . . communicating to set” up time between Child and Mother’s extended family but explained that he had felt a need to set “boundaries” because the termination petition had “put a strain” on his relationship with Mother’s family.

¶9        Grandparents expressed fear that termination would “have a very negative impact on [their] relationship with [Child]” and that Father “would move on” and “find a way to take [Child] away from” Grandparents. Mother’s brother, who also had a close relationship with Father, expressed his belief that Father had become uninterested in Mother’s side of the family and that Father would not let Mother’s family see Child anymore if Mother’s rights were terminated. Another of Mother’s brothers likewise testified that the family’s contact with Child had been less frequent during the preceding year and that he believed Father would cut off contact between Child and Mother’s family if the court terminated Mother’s rights.

¶10 Following trial, the juvenile court found two grounds for termination: (1) that Mother was an unfit parent because she was unable to care for Child as a result of her incarceration and (2) that she had neglected child through her habitual and excessive use of controlled substances. See Utah Code Ann. § 78A-6-507(1)(b), (c) (LexisNexis 2018); id. § 78A-6-508(2)(c), (e) (Supp. 2019). The court further found that termination was in Child’s best interest.

¶11 In reaching its conclusion regarding Child’s best interest, the juvenile court limited its analysis to three factors—Child’s “bond with his caregivers,” his “need for permanence and stability,” and “the potential risk of harm if returned to [Mother’s] care.” The court found that there was not an intact parental relationship between Mother and Child because she had not acted as his caregiver for an extended period of time. It observed that although Child recognizes that Mother is his mom, he has developed a mother–child bond with Fiancée as well. The court also found that Fiancée intended “to adopt [Child] should he be legally free.” The court concluded that “[t]hese facts support the need for permanence and stability and that [Child] does have a bond with his caregivers.” The court further found that there was “a potential risk of harm to” Child from Mother because she could not rule out the possibility of a future relationship with her co-defendant, who had been described as a “really bad guy.” Finally, the court found that termination of Mother’s rights was “strictly necessary for [Child] to achieve permanency and stability.” Based on these findings, the court determined that it was in Child’s best interest that Mother’s parental rights be terminated. Mother now appeals.

ISSUE AND STANDARD OF REVIEW

¶12 Mother argues that the juvenile court exceeded its discretion in terminating her parental rights. “The ultimate decision about whether to terminate a parent’s rights presents a mixed question of law and fact.” In re B.T.B., 2018 UT App 157, ¶ 8, 436 P.3d 206 (quotation simplified), cert. granted, 440 P.3d 692 (Utah 2019). We review the court’s factual findings for clear error and its legal conclusions for correctness, “affording the court some discretion in applying the law to the facts.” Id. (quotation simplified). Nevertheless, “the proper interpretation and application of a statute is a question of law which we review for correctness.” In re A.M., 2009 UT App 118, ¶ 6, 208 P.3d 1058 (quotation simplified).

ANALYSIS

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

¶14 “The ‘best interest’ test is broad, and is intended as a holistic examination of all the relevant circumstances that might affect a child’s situation.” Id. ¶ 47; see also In re G.J.C, 2016 UT App 147, ¶ 24, 379 P.3d 58 (“Determining a child’s best interest in termination of parental rights proceedings is a subjective assessment based on the totality of the circumstances.”). Utah courts have identified numerous factors that may be relevant to this determination. For example, a court may consider “the physical, mental, or emotional condition and needs of the child”; “the effort the parent has made to adjust their circumstances, conduct, or conditions to make restoring the parent–child relationship in the child’s best interest”; “the child’s bond with caregivers”; the child’s “need for permanency and stability”; and “the potential risk of harm if returned to the parents’ care.” See In re G.J.C., 2016 UT App 147, ¶ 24 (quotation simplified). It may consider the parent’s “demeanor,” “attitude toward his or her child,” and “attitude in fulfilling parental obligations,” see In re T.E., 2011 UT 51, ¶ 44, 266 P.3d 739, and it may weigh the benefits of the child continuing a relationship with an unfit parent even where reunification is not an option, examine the child’s prospects for adoption, and even consider the child’s preferences in some circumstances, In re D.R.A., 2011 UT App 397, ¶¶ 19, 21, 266 P.3d 844; see also In re B.T.B., 2018 UT App 157, ¶ 56. Moreover, as part of the best interest analysis, Utah law requires courts to “analyze whether termination of a child’s parent’s rights is ‘strictly necessary,’” that is, the court must “explore whether other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights.” In re B.T.B., 2018 UT App 157, ¶¶ 50, 55; see also Utah Code Ann. § 78A-6-507(1) (LexisNexis 2018) (“Subject to the protections and requirements of Section 78A-6-503, and if the court finds strictly necessary, the court may terminate all parental rights with respect to a parent if the court finds any one of the following [statutory factors] . . . .” (emphasis added)).

¶15 In conducting its best interest analysis, the juvenile court did not take the holistic approach that has been prescribed by this court. Rather than examining the totality of all circumstances affecting Child’s best interest, the court erroneously interpreted In re G.J.C., 2016 UT App 147, 379 P.3d 58, as articulating a best interest test composed of only three specific factors: (1) “bond with caregivers,” (2) “need for permanence and stability,” and (3) “the potential risk of harm if returned to the parent’s care.” See id. ¶ 24. Further, the court’s finding that termination was “strictly necessary” was conclusory and did not include an examination of feasible alternatives to termination, as required by In re B.T.B., 2018 UT App 157, 436 P.3d 206.[3]

¶16 The court’s reliance on only the three specific factors gleaned from In re G.J.C. unduly narrowed the “broad,” “holistic” best interest test, see In re B.T.B., 2018 UT App 157, ¶ 47, and its order did not accurately represent the direction given by this court in In re G.J.C.[4] The three factors identified in In re G.J.C. were not given as a definitive list of factors; rather the court stated that those three factors were “proper” factors to consider “in the context of a best-interest determination.” 2016 UT App 147, ¶ 24. Indeed, the court explicitly instructed that a best interest determination must be “based on the totality of the circumstances.” Id. This court reaffirmed and elaborated on this “holistic” approach in In re B.T.B., when it instructed “courts to examine all of the relevant facts and circumstances surrounding the child’s situation” and, in particular, “to explore whether other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights,” in order to satisfy the legislature’s requirement that termination be limited to circumstances where it is “strictly necessary.” 2018 UT App 157, ¶¶ 47, 54–55.

¶17 Because of the court’s narrow focus on only three factors pertaining to the best interest analysis, its findings do not reveal whether the court considered a number of additional factors relevant to determining if termination of Mother’s rights was in Child’s best interest, including the fact that Child’s prospects for adoption by Fiancée were speculative, Child’s bond with Mother and any benefits of him continuing a relationship with Mother, and the effect of termination on Child’s relationship with his extended family, including his half-sister.[5] Further, while the court’s analysis emphasized Child’s need for stability, it is unclear how terminating Mother’s parental rights would achieve that goal. Child was not in DCFS custody or a short-term placement with a foster family with an unsettled future. Rather, Father had permanent sole legal and physical custody of Child. Child would continue to be raised primarily by Father and Fiancée, regardless of whether Mother’s parental rights were terminated. And while termination would free Child for adoption by Fiancée, Fiancée was not in an immediate position to adopt Child, and it was not certain that she would ever be in such a position, as she and Father were not actually married. Even the danger anticipated by the juvenile court if Mother eventually resumed her relationship with her co-defendant was mostly speculative, as the co-defendant would not be released from prison for many years. See In re D.R.A., 2011 UT App 397, ¶ 21 (determining that the State had failed to establish that termination was in a child’s best interest in part because “the benefits of severing” the parent–child relationship were “too speculative”). Finally, the court’s determination that termination was strictly necessary was not supported by an appropriate exploration of feasible alternatives to termination. See In re B.T.B., 2018 UT App 157, ¶ 55. Therefore, the juvenile court’s findings do not support its determination that termination was in Child’s best interest.

CONCLUSION

¶18 Because the juvenile court did not employ the correct holistic analysis in assessing whether termination of Mother’s parental rights was in Child’s best interest and its findings do not support such a determination, we vacate the court’s order terminating Mother’s parental rights and remand for further proceedings consistent with this opinion.[6]

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

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[1] Utah law requires a prospective adoptive stepparent to be married to the child’s custodial parent and to have lived with the custodial parent and the stepchild for at least one year prior to entry of the final decree of adoption. Utah Code Ann. § 78B-6¬ 117(2)(a) (LexisNexis Supp. 2019); id. § 78B-6-136.5(2)(a) (2018). Thus, as of the termination trial, Fiancée was at least one year away from being able to adopt Child.

[2] Mother has another child who was not included in the termination proceedings.

[3] Father argues that the juvenile court was not required to engage in the “strictly necessary” analysis prescribed by In re B.T.B. because that case was decided after the court issued its oral ruling in this case. However, Father makes no effort to explain why we should not apply this analysis. The “strictly necessary” language has been part of the statute since 2012, Act of March 7, 2012, ch. 281, § 6, 2012 Utah Laws 1331, 1334; In re B.T.B. merely interpreted that statutory language. And upon interpreting the language, the In re B.T.B. court sent that case back to the trial court for reconsideration: “Because we clarify and partially reformulate the test for termination of parental rights, we remand this case to the juvenile court for reconsideration in light of this opinion.” 2018 UT App 157, ¶ 2, 436 P.3d 206, cert. granted, 440 P.3d 692 (Utah 2019). Father also fails to acknowledge that the juvenile court’s final written order was actually signed one month after In re B.T.B. was issued. We therefore reject Father’s assertion that the court’s failure to engage in a more thorough “strictly necessary” analysis should be ignored on appeal.

[4] In re G.J.C. has limited utility in any event because it employed the now-disavowed principle that “where grounds for termination are established, the conclusion that termination will be in a child’s best interest follows almost automatically.” 2016 UT App 147, ¶ 25, 379 P.3d 58 (quotation simplified); see also In re B.T.B., 2018 UT App 157, ¶¶ 22–44 (disavowing the “almost automatically” line of cases).

[5] Our analysis should not be construed as prohibiting courts from focusing on those factors that it finds to be most probative in a particular case; not every factor will be relevant in every case, and even where evidence of a particular factor is present, a court may reasonably discount the factor and decline to discuss it in detail in its findings. The court’s ruling in this case is problematic not because it focused on limited relevant factors but because it misconstrued the best interest test as being limited to those factors and because it did not examine the feasibility of less-drastic alternatives to termination.

[6] Our decision should not be read as dictating any particular result on remand. Indeed, any number of circumstances may have changed since trial, and the court should take such changes into account in reconsidering its decision. On remand, the court should expand its analysis of best interest to consider the totality of the circumstances, examine the feasibility of alternatives to termination, supplement its findings, and assess whether termination is in Child’s best interest in light of any such supplemental findings.

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Can parent whose parental rights were terminated live with the other parent and the kids?

If parental rights are terminated for the mother but not the father and they are still married with the children also living at home can the mother remain in the house with the children?

Sure, unless the court orders the mother to be separated from and to have no contact with the kids or orders the mother restrained and enjoined from living/lodging in the same place as where the kids reside/lodge.

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

https://www.quora.com/If-parental-rights-are-terminated-for-the-mother-but-not-the-father-and-they-are-still-married-with-the-children-also-living-at-home-can-the-mother-remain-in-the-house-with-the-children/answer/Eric-Johnson-311

 

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Can I petition the courts for custody of a child who is homeless?

Yes. In the jurisdiction where I practice family law, there are several ways to seek and obtain custody of child who is not your biological offspring:

  • petition for guardianship
  • petition to terminate parental rights/petition for adoption
  • request for child protective order

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

https://www.quora.com/Can-I-petition-the-courts-for-custody-of-a-child-who-is-homeless/answer/Eric-Johnson-311

Tags: , , , ,

Can I petition the courts for custody of a homeless child?

Yes. In the jurisdiction where I practice family law, there are several ways to seek and obtain custody of child who is not your biological offspring:
  • petition for guardianship
  • petition to terminate parental rights/petition for adoption
  • request for child protective order

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

https://www.quora.com/Can-I-petition-the-courts-for-custody-of-a-child-who-is-homeless/answer/Eric-Johnson-311

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

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

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

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

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

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

APPLEBY, Judge:

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

BACKGROUND

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

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

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

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

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

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

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

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

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

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

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

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

¶14      Parents appeal.

ISSUES AND STANDARDS OF REVIEW

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

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

ANALYSIS

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

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

I. Grounds for Termination

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

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

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

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

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

II. Best Interest of Child

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

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

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

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

CONCLUSION

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

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

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

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

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

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

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

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

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