In re B.W...

2022 UT App 131

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF B.W., J.W., AND N.W.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.

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

Opinion
No. 20210886-CA
Filed November 17, 2022

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

Emily Adams and Sara Pfrommer, Attorneys
for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem

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

TENNEY, Judge:

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

failed drug tests, the juvenile court placed B.W., J.W., and N.W.
(collectively, the Children) in DCFS custody.

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

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

BACKGROUND

DCFS Petitions for Protective Supervision

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

1. When the Twins were born, Mother was living with the
Children’s alleged father. The alleged father participated
throughout the proceedings, and at the close of the same
termination proceeding at issue in this appeal, the juvenile court
terminated his rights, if any, in the Children. In a separate appeal,
(continued…)

20210886-CA 2 2022 UT App 131
 In re B.W.

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

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

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

this court upheld that decision based on the alleged father’s
failure to establish paternity. See Order, Case No. 20210915-CA
(Feb. 18, 2022).
Mother was married to another man when each of the
Children were born. This made him their presumptive father
under the Utah Uniform Parentage Act. See Utah Code Ann.
§ 78B-15-204(1)(a) (LexisNexis 2018). But although this man was
properly served, he never appeared. The juvenile court thus
determined that he had abandoned the Children and terminated
his parental rights as well. That portion of the court’s order is not
at issue in this appeal.

20210886-CA 3 2022 UT App 131
 In re B.W.

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

DCFS Petitions for Custody

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

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

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

Mother Requests Placement with Grandparents

¶12 At the pretrial and disposition hearings (and, as will be
discussed, at subsequent hearings in the case as well), Mother

20210886-CA 4 2022 UT App 131
 In re B.W.

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

¶13 DCFS gave information to Step-Grandfather about how to
appeal the LIS cases. After he did, three of the cases were
administratively overturned.3 But the remaining two were upheld

2. The Management Information System “contain[s] all key
elements of each family’s current child and family plan” and
“alert[s] caseworkers regarding deadlines for completion of and
compliance with policy, including child and family plans.” Utah
Code Ann. § 62A-4a-1003(3)(a), (b) (LexisNexis Supp. 2021).
Effective September 1, 2022, several sections relevant to the
LIS were repealed and renumbered. Compare id. §§ 62A-4a-
101, -1005, -1006, with id. §§ 80-2-102, -708, -1002 (Supp. 2022). We
cite to the versions in effect at the time of the termination hearing.

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

20210886-CA 5 2022 UT App 131
 In re B.W.

because they “were of such significance that they [could not] be
overturned.”

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

Juvenile Court Terminates Reunification Services

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

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

20210886-CA 6 2022 UT App 131
 In re B.W.

2020. Mother checked into a facility on December 23, but she left
two days later.

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

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

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

6. Unless a statutory exception applies, “the juvenile court may
not extend reunification services beyond 12 months after the day
on which the minor is initially removed from the minor’s home.”
Utah Code Ann. § 80-3-409(6) (LexisNexis Supp. 2022). As the
(continued…)

20210886-CA 7 2022 UT App 131
 In re B.W.

Mother Enters an Inpatient Treatment Facility

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

Juvenile Court Terminates Mother’s Parental Rights

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

¶20 The first DCFS caseworker (Caseworker 1) had worked
with the family from the Twins’ births until December 2020. The
State proffered that she would have testified about DCFS’s
unsuccessful efforts to place the Children with relatives, Mother’s

juvenile court later explained in its termination decision, Mother
was provided with separate reunification services with respect to
A.W., so she was provided “‘additional’ services and ‘additional’
time to remedy the safety concerns that brought the [Children] in
this matter into DCFS custody.”

20210886-CA 8 2022 UT App 131
 In re B.W.

supervised visits with the Children, and Mother’s efforts to
comply with the plan, including drug testing and participation in
therapy. Caseworker 1 also would have discussed how she
arranged to take Mother to an inpatient treatment facility and
how Mother did not answer the door when Caseworker 1 arrived.

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

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

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

20210886-CA 9 2022 UT App 131
 In re B.W.

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

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

8. Grandmother, whose testimony was offered via proffer, would
have testified that Mother had planned to move in with her after
(continued…)

20210886-CA 10 2022 UT App 131
 In re B.W.

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

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

¶27 Foster Mother then spoke about each individual child. She
said that B.W., for example, is “enrolled in early intervention”
with” PrimeTime 4 Kids and “receives speech and language
therapy.”9 And she said that J.W. also does PrimeTime 4 Kids, but
that he doesn’t have any “physical limitations or medical needs.”
Foster Mother also explained that N.W. has a rare chromosomal
syndrome. When N.W. first came into their home, he was on

leaving the inpatient treatment facility, that there was room for
Mother to move in, but that Mother never came to live with her.

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

20210886-CA 11 2022 UT App 131
 In re B.W.

“supplemental oxygen 24 hours a day” and had a G-tube to help
with feeding, which required daily cleaning. She further testified
that N.W.’s chromosomal syndrome has caused developmental
delays and that he will “remain delayed.” On cross-examination,
she discussed how she and her husband “did a lot of research”
into the syndrome by watching YouTube videos and “lectures
given by doctors.”

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

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

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

20210886-CA 12 2022 UT App 131
 In re B.W.

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

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

¶32 At this point, the court asked for clarification about when
Grandparents had requested custody, and Mother’s counsel
provided a summary of when Grandparents had done so.11
Mother’s counsel further explained that DCFS denied placement
with Grandparents because DCFS claimed there was “a
substantiated sexual abuse allegation on the licensing database”

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

20210886-CA 13 2022 UT App 131
 In re B.W.

that couldn’t be overturned. She said that DCFS “would not
provide any more details than that as to what their concerns
were.” When the court asked if Grandparents’ placement request
was denied each time, Mother’s counsel stated that the requests
were “denied,” or, rather, “continued more often than denied
outright.”

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

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

20210886-CA 14 2022 UT App 131
 In re B.W.

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

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

¶37 The court also made findings about Mother’s efforts and
progress. It found that “by all accounts,” Mother did well at the
inpatient treatment facility and “gave the program her all,
attended all groups, individual sessions and case management
meetings and that she excelled in her program and appeared to
grow in her confidence and sobriety.” The court also found that

20210886-CA 15 2022 UT App 131
 In re B.W.

“Mother completed a parenting class, consistently participated in
family team meetings, kept in regular contact with DCFS,
allowed DCFS to conduct home visits, obtained proper housing,
attended visits with the [Children], and completed some adult
education classes.” And the court concluded “that Mother
appears to have good parental instincts and was always
appropriate and attentive during visits with the [Children].” The
court also stated that it was “very clear” that Mother “love[s] the
[Children] very much.”

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

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

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

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

20210886-CA 16 2022 UT App 131
 In re B.W.

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

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

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

20210886-CA 17 2022 UT App 131
 In re B.W.

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

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

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

20210886-CA 18 2022 UT App 131
 In re B.W.

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

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

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

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

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

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

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

20210886-CA 19 2022 UT App 131
 In re B.W.

permanency they deserve.” The court thus terminated Mother’s
parental rights in the Children. Mother now appeals.

ISSUES AND STANDARDS OF REVIEW

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

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

ANALYSIS

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

20210886-CA 20 2022 UT App 131
 In re B.W.

termination is in the best interest of the child. See In re B.T.B., 2020
UT 60, ¶ 46. Both findings must be supported by clear and
convincing evidence. See Utah Code Ann. § 80-4-103(2)(a); In re
B.T.B., 2020 UT 60, ¶ 48.

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

I. Grounds for Termination

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

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

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

20210886-CA 21 2022 UT App 131
 In re B.W.

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

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

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

20210886-CA 22 2022 UT App 131
 In re B.W.

question before the court was whether Mother had “substantially
corrected” that behavior between their removal in April 2020 and
the termination hearing in November 2021.

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

¶54 Mother nevertheless argues that the court improperly took
a “‘zero-tolerance’ approach” and failed “to in any way take into
account Mother’s efforts and progress.” But the court didn’t take
a zero-tolerance approach. Rather, the court concluded that
Mother was unable or unwilling to substantially correct her drug
use after making findings about Mother’s repeated use of
methamphetamine, including specific findings about her use
while pregnant and again in the few months between her
inpatient treatment and the termination hearing. The court also

20210886-CA 23 2022 UT App 131
 In re B.W.

didn’t fail to “take into account Mother’s efforts and progress.” In
its order, the court acknowledged that Mother had “made
significant progress with a number of requirements on the child
and family plan” and that Mother had “successfully completed”
the inpatient treatment program. But the court then found that
Mother “very quickly relapsed on methamphetamine” after
leaving the facility and that Mother was still “in active
methamphetamine addiction and use.” In short, the court
recognized Mother’s progress, but it nevertheless found that even
with this progress, her ongoing methamphetamine use still
demonstrated that she was either unwilling or unable to
substantially correct her drug use.

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

20210886-CA 24 2022 UT App 131
 In re B.W.

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

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

¶58 In short, there was sufficient evidence of Mother’s ongoing
drug use, thereby also supporting the court’s finding that Mother
was “unable or unwilling within a reasonable time to
substantially correct the circumstances, conduct, or conditions
that led to placement of [the Children] outside of their home.”
Utah Code Ann. § 80-4-102(2). We are thus unconvinced that the

20210886-CA 25 2022 UT App 131
 In re B.W.

court “failed to consider all of the facts” or that the court’s
decision was “against the clear weight of the evidence.” In re E.R.,
2021 UT 36, ¶ 7 (quotation simplified).

II. Best Interest

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

¶60 If a juvenile court determines that grounds for termination
exist, the court must then consider whether termination is in the
child’s best interest. See In re B.T.B., 2020 UT 60, ¶ 46; see also Utah
Code Ann. § 80-4-103(2)(c) (explaining that a court should

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

20210886-CA 26 2022 UT App 131
 In re B.W.

“consider the welfare and best interest of the child of paramount
importance in determining whether to terminate parental
rights”). This consideration should be directed by “two related
pieces of important guidance” provided by our legislature. In re
J.J.W., 2022 UT App 116, ¶ 27.

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

¶62 When considering whether termination is strictly
necessary, a juvenile court must consider, “among other relevant
factors,” whether “efforts to place the child with kin who have, or
are willing to come forward to care for the child, were given due
weight.” Utah Code Ann. § 80-4-104(12)(b)(ii). Our supreme court
has clarified that

this part of the inquiry also requires courts to
explore whether other feasible options exist that
could address the specific problems or issues
facing the family, short of imposing the ultimate
remedy of terminating parental rights. In
some cases, alternatives will be few and
unsatisfactory, and termination of the parent’s
rights will be the option that is in the child’s best

20210886-CA 27 2022 UT App 131
 In re B.W.

interest. But in other cases, courts should consider
whether other less-permanent arrangements might
serve the child’s needs just as well.

In re B.T.B., 2020 UT 60, ¶ 67 (quotation simplified).16

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

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

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

20210886-CA 28 2022 UT App 131
 In re B.W.

require permanent severance of familial bonds and that would
serve the [younger children’s] best interest at least as well as
adoption.” Id.

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

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

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

20210886-CA 29 2022 UT App 131
 In re B.W.

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

¶69 Third, if a court has complied with its statutory obligations,
its resultant best interest determination is entitled to deference.
See In re J.J.W., 2022 UT App 116, ¶ 18; see also In re E.R., 2021 UT
36, ¶ 22. This is because the best interest determination “is a
factually intense inquiry dependent on the unique circumstances
and needs of each child.” In re E.R., 2021 UT 36, ¶ 22 (quotation
simplified). Furthermore, “the juvenile court has a superior
perspective in light of its view of the demeanor of both parents
and children.” Id. ¶ 23. For these reasons, “we do not lightly
reverse a court’s best-interests determination.” In re A.H., 2022 UT
App 114, ¶ 38. But to be clear, a juvenile court’s determinations
are not “afforded a high degree of deference”; rather, “the

20210886-CA 30 2022 UT App 131
 In re B.W.

deference afforded to the juvenile court is the same level of
deference given to all lower court findings of fact and fact-like
determinations of mixed questions.” In re E.R., 2021 UT 36, ¶¶ 29–
30. Accordingly, we will overturn a juvenile court’s decision “if it
either failed to consider all of the facts or considered all of the facts
and its decision was nonetheless against the clear weight of the
evidence.” Id. ¶ 31 (quotation simplified). In In re J.J.W., for
example, we remanded because the district court failed to
consider whether a kinship placement could serve the child’s best
interest. 2022 UT App 116, ¶ 37. And in In re A.H., we reversed
where the juvenile court did consider the kinship placement but
its decision went “against the clear weight of the evidence
presented at trial.” 2022 UT App 114, ¶ 57.

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

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

20210886-CA 31 2022 UT App 131
 In re B.W.

and place the [Children] in [Grandparents’] direct custody. The
Court denied this request after considering all of the information
and argument from the parties.” And it later concluded that “due
weight was given to possible kin placements, but they did not
occur due to [Step-Grandfather] failing his background check.”

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

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

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

¶75 If DCFS “makes a supported finding that a person
committed a severe type of child abuse or neglect,” it enters “the

20210886-CA 32 2022 UT App 131
 In re B.W.

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

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

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

20210886-CA 33 2022 UT App 131
 In re B.W.

a preponderance of the evidence that abuse or neglect occurred.”
Id. § 62A-4a-101(40).

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

¶78 We simply cannot fault the juvenile court for finding that
it was not in the Children’s best interest to be placed in a home
with somebody who, despite having tried to be removed from the
LIS, nevertheless remained in the LIS based on two prior cases
that were “of such significance that they cannot be overturned.”
See In re J.P., 2021 UT App 134, ¶¶ 11, 20–23, 502 P.3d 1247
(upholding a juvenile court’s determination that placement with
relatives was inappropriate where one member of the household
had a “history of violence”). Indeed, beyond the obvious safety

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

20210886-CA 34 2022 UT App 131
 In re B.W.

concerns raised by the LIS cases, we further note some legislative
support for the court’s assessment of their significance to the
question before it. By statute, a person who is listed in the LIS
“may be disqualified from adopting a child, receiving state funds
as a child care provider, or being licensed by” DCFS. Utah Code
Ann. § 62A-4a-1005(2)(a)(v). While Mother points out that a
kinship placement is not precisely the same thing as an adoption
or being licensed by DCFS, this statute still evidences the
legislature’s conclusion that placement on the LIS should result in
some restriction of a person’s ability to have sustained access to
children. Given this, we don’t see why a juvenile court couldn’t
likewise conclude that there is good reason to not place children
in the care of someone who is listed in the LIS.

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

19. At oral argument, Mother suggested that Step-Grandfather
couldn’t have testified about the cases because they happened
long ago and “he didn’t know” what the cases were about. If it
were true that Step-Grandfather didn’t remember the underlying
facts of the cases, he could have requested information from
(continued…)

20210886-CA 35 2022 UT App 131
 In re B.W.

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

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

¶82 Given the findings detailed above, Mother has not
persuaded us that the court “failed to consider all of the facts” or
that it “considered all of the facts and its decision was nonetheless

DCFS. See Utah Code Ann. § 62A-4a-1006(4)(c)(ii)(B) (explaining
that DCFS can access the LIS to “respond to a request for
information from a person whose name is listed in” the LIS).

20210886-CA 36 2022 UT App 131
 In re B.W.

against the clear weight of the evidence.” In re E.R., 2021 UT 36,
¶ 7 (quotation simplified). We accordingly decline to disrupt the
court’s determination that it was in the Children’s best interest to
be adopted by their foster family and that termination of Mother’s
parental rights was strictly necessary to achieve that outcome.

CONCLUSION

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

20210886-CA 37 2022 UT App 131