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.
In re J.P.
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
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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.
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.
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¶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.
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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
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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).
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¶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,
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
(continued…)
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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
(…continued)
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.
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“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
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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
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,
(continued…)
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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
(…continued)
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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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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