Opinion
No. 20210595-CA
12-30-2022
STATE of Utah, IN the INTEREST OF K.Y., S.Y., and M.Y., Persons Under Eighteen Years of Age. C.Y., Appellant, v. State of Utah, Appellee.
Alexandra Mareschal, Attorney for Appellant Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Salt Lake City, Attorneys for Appellee Martha Pierce, Salt Lake City, Guardian ad Litem
Alexandra Mareschal, Attorney for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Salt Lake City, Attorneys for Appellee
Martha Pierce, Salt Lake City, Guardian ad Litem
Senior Judge Kate Appleby authored this Opinion, in which Judges Michele M. Christiansen Forster and Ryan D. Tenney concurred.
Senior Judge Kate Appleby sat by special assignment as authorized by law. See generally Utah R. Jud. Admin. 11-201(7).
This amended opinion replaces the opinion issued December 15, 2022, In re K.Y. , 2022 UT App 142, 2022 WL 17684892. Footnote 11 has been amended to correctly identify the party raising the preservation argument discussed therein.
APPLEBY, Senior Judge:
¶1 C.Y. (Mother) is the biological mother of three children, K.Y., S.Y., and M.Y. (collectively, the Children). After Mother administered marijuana to her ten-year-old twin daughters, K.Y. and S.Y. (the twins) by blowing smoke into their mouths, the State removed the Children from Mother's custody. The State's primary goal was to reunify Mother and the Children as soon as it was safe to do so. But after twenty-one months of reunification services, the juvenile court found that it was still unsafe to return the Children to Mother's custody. The juvenile court stopped services and found termination of Mother's parental rights in the Children's best interest. On appeal, Mother challenges the court's best interest analysis. We agree with Mother that the court's analysis was inadequate and therefore vacate its termination order and remand for further proceedings.
BACKGROUND
¶2 Early in 2019, Mother administered marijuana to the twins during a time in which they suffered from panic attacks and anxiety, which were in large part trauma responses to sexual abuse perpetrated by their stepfather (Stepfather). For more than one year, Mother struggled to help the twins, and after medications and therapy proved futile, she resorted to blowing marijuana smoke into their mouths; she was arrested soon thereafter. In April, the incident was referred to the Division of Child and Family Services (DCFS). After a DCFS investigation, the juvenile court found the Children "abused ... and/or ... neglected" and ordered DCFS to take custody of the Children. DCFS placed them with a maternal aunt (Aunt) and uncle (Uncle).
Although Stepfather adopted the Children in 2016, becoming their legal father, he voluntarily relinquished his parental rights to the Children in 2021. We refer to him as Stepfather for simplicity.
Mother entered a plea in abeyance for the charges and was sentenced to two years’ probation.
¶3 When the Children arrived at the kinship placement, it became clear the trouble with Mother's care was multifaceted. M.Y., diagnosed with ADHD and neurodevelopmental problems, was developmentally delayed, dysregulated, impulsive, and aggressive. At the age of four, she could barely speak, did not listen, and was only partially toilet trained. She exhibited a range of troubling behaviors: hitting, biting, spitting, running away, and harming herself. As for the twins, they were two grade levels behind in school, heavily medicated, and experiencing severe emotional distress. Each twin suffered trauma from Stepfather's sexual abuse and from Mother forcing them to hit and physically discipline M.Y. Indeed, S.Y. later reported that "the biggest trauma she had been through was being encouraged to physically abuse her sister."
¶4 DCFS determined the primary permanency goal for the family's case was reunification—that is, to return the Children to Mother's custody. It set a concurrent permanency goal of adoption. And it developed a Child and Family Service Plan (the family plan), which required Mother to submit to random drug testing, remain substance abuse free, complete a psychological assessment with a parenting component and comply with treatment recommendations resulting therefrom, maintain stable housing, maintain financial means of support for her and the Children, comply with all court orders, and maintain consistent contact with the DCFS caseworker.
¶5 In June 2019, Mother completed her required psychological evaluation. There, Mother reported experiencing depression and anxiety stemming from her tumultuous childhood. The psychologist found Mother's symptoms consistent with post-traumatic stress disorder and borderline personality disorder and recommended Mother complete "[a] substance abuse assessment, individual and group treatment ..., an updated medication assessment, parenting classes[,] and filial therapy." DCFS added these recommendations to the family plan.
¶6 Mother had no difficulty complying with the family plan. She regularly submitted to random drug testing, and (aside from the first two) the tests were negative. By October, Mother's therapist stated Mother was actively participating in appointments and "willingly confront[ing] issues regarding her parenting." Her therapist recommended DCFS consider extending Mother's parent-time privileges. Later that month, during a six-month review hearing, the juvenile court authorized unsupervised parent-time for Mother with the twins. By all accounts, Mother was on a "positive trajectory."
As it turned out, although the court authorized unsupervised parent-time for the twins, it never actually took place over the course of this case.
¶7 But by December, although Mother remained in compliance with the family plan and even received authorization for unsupervised parent-time with M.Y., there were some concerns about Mother's "willingness to take direction [in family therapy] and practice the skills that she [was being] taught." In a team meeting with DCFS, the family therapist explained that Mother struggled to accept support and direction and "refused to practice" the techniques recommended to her.
¶8 By January 2020, though, DCFS reported Mother had made some improvements and was more receptive to family therapy. Mother's therapist corroborated this progress. Nevertheless, DCFS retained reservations about returning the Children to her. It thought the twins "need[ed] more time to work on their trust in and relationship with" Mother. The twins remained hesitant to participate in parent-time with Mother and to attend family therapy sessions, and they were nervous about returning to live with her. At one point, K.Y. reported, "I don't really like our mom but I don't like to lose her either but I don't want to live with her." In April, DCFS asked the court to extend reunification services to see whether, with more time, the relationship between the twins and Mother could be fortified. The court agreed and found a ninety-day extension in the Children's best interest, stating reunification was "probable." In May, with reunification services extended, DCFS made a referral for Mother to begin peer-parenting. Mother joined a waiting list for that service.
¶9 The extension period passed, though not without incident. In July, Mother, the Children, and Mother's cousin (Cousin) met for parent-time at a public park (the park incident). DCFS had allowed Cousin to supervise the visit as a third-party supervisor. At some point, M.Y. "ran the opposite direction" from Mother. Mother, worried that M.Y. would find herself in a nearby road or river and unable to "run after" M.Y. "fast enough," instructed K.Y. to chase M.Y. and sit on her until Mother could catch up. Mother also allegedly "yell[ed] and scream[ed] at [M.Y.] while holding her down." As the park incident unfolded, S.Y. clung to Cousin, shaking. After this, the twins became emotionally withdrawn. DCFS later made supported findings that the twins suffered emotional abuse and shifted Mother's parent-time supervised by a third-party to parent-time supervised by DCFS, finding that this was in the Children's best interest.
The evidence did not support a finding of physical abuse as to M.Y.
¶10 Nine days after the park incident, the extension period ended. At this point, the court ordered a second ninety-day extension and again stated its belief that reunification was "probable." During this second extension, Mother began the peer parenting program. But in October, this extension, too, ended, and DCFS requested the court terminate reunification services altogether. Mother opposed this request and asked to proceed to an evidentiary permanency hearing, which was set for late November.
¶11 At the permanency hearing, the juvenile court heard testimony from the twins, Aunt, Mother, and several service providers. The court's goal was to address whether it should terminate or extend reunification services, a relatively simple question given that the case had already exceeded the eighteen-month mark, such that the court could not further extend those services without violating the limits set by statute. See Utah Code Ann. § 80-3-409(6) – (7) (LexisNexis Supp. 2022) (limiting reunification services to twelve months but allowing the court to extend services "for no more than 90 days," and then "for one additional 90-day period" if circumstances support doing so). But because, by statute, termination of reunification services is interwoven with a more foundational question about whether it is safe to return the child or children to the custody of the parent, most of the evidence focused on the Children's safety. See id. § 80-3-409(4) (providing that, where a case has reached its statutory limit, the juvenile court shall terminate reunification services "if a minor is not returned to the minor's parent " (emphasis added)).
¶12 During the hearing, each twin testified that she was afraid to return to Mother's custody; K.Y. expressed worries that Mother would "start hitting" them again or "do her drugs to [them] again," while S.Y. stated concerns that Mother would not allow them to visit Aunt, Uncle, or their friends. For the most part, the twins expressed a desire to continue living in the kinship placement (though S.Y. testified that at least "[a] little bit" of her wanted to live with Mother). As for parent-time, S.Y. testified that she recently enjoyed talking with Mother and found it hard to leave the visit. The twins acknowledged Mother's progress. K.Y. testified that, during recent parent-time, Mother more safely managed M.Y. and did not yell at, threaten, or hurt her, and S.Y. testified that Mother was "nicer" and a better listener. But each was skeptical about whether Mother had meaningfully changed. And each testified extensively about the safety, love, and support they felt in their kinship placement. Indeed, K.Y. testified the kinship placement made her "feel happy" in a way she had "wanted to feel ... for a long time." ¶13 Aunt testified she believed the Children should not be returned to Mother. Aunt noted that the Children had improved in her care: M.Y. was more articulate and less impulsive, and the twins were nearly caught up to grade level at school and were happier, more open, and social. Aunt worried that in Mother's care, the Children would "go backwards." Aunt also expressed fears that Mother would "punish" the Children "for going through all of this." And Aunt testified that the twins experienced heightened anxiety about "the thought of going home" and observed that when S.Y. talked about it, she would "get[ ] very emotional," shake, and have facial contortions. Aunt further testified that S.Y. wanted "all" parent-time with Mother "to stop."
¶14 Although M.Y.’s therapist did not explicitly say one way or the other whether she thought M.Y. should return to Mother, the therapist testified at great length about the importance of routine and consistency "for a child like [M.Y.]" and that the "biggest thing" for M.Y. is that the people around her respond in predictable ways, with consistent emotional responses and foreseeable consequences.
¶15 The twins’ therapist, the family therapist, and the DCFS caseworker were less ambivalent. In their view, the Children should not be returned to Mother's custody. Both therapists expressed similar sentiments about what the Children needed to be able to recover from their trauma: a parent who is empathic, supportive, validating, flexible, stable, and able to set firm boundaries. Yet, despite eighteen months of reunification services, Mother was still "very rigid," distrustful, and emotionally unavailable. Testimony also pointed to the fact that the park incident occurred "late in the case" and that, during family therapy, Mother often ignored instruction and sometimes rolled her eyes in a manner that suggested she had not internalized what she was taught. The caseworker testified that although "on paper" Mother had completed "the majority" of the family plan, DCFS did not feel it was safe or healthy for the Children to live with her. Similarly, the family therapist recommended supervised parent-time for Mother and the Children but did not yet feel comfortable recommending something more.
A common thread underlying the testimony was that the park incident was a turning point of sorts, for it solidified a major safety concern with returning the Children to Mother's custody. Witness testimony portrayed the event as "triggering" and traumatizing, causing the twins to regress for months afterward, and as a source of further anxiety for the twins about returning to live with Mother.
¶16 Some of Mother's testimony showed she could provide appropriate care for the Children, but some portions demonstrated otherwise. For instance, she testified about each Child's unique needs and that she had learned to show her emotions more appropriately. She acknowledged the twins did not feel safe in her home because "the whole apartment" reminded them of Stepfather, and she stated that she hoped to move elsewhere soon. She testified that her yelling "probably" "trigger[ed]" M.Y. and that this was something she had worked on. But when asked in what ways she thought her behavior "triggered" the twins, Mother responded, "I don't know," and suggested there were none. When asked what she observed of the twins’ "demeanor" after the park incident, Mother testified, "Nothing. [K.Y.] was laughing about it," and S.Y.’s demeanor "wasn't really different." When asked how she would respond to a similar situation in the future, Mother proposed a solution that was unlike what she had been taught in family therapy.
¶17 Finally, various witnesses testified about the pandemic's effect on the case by changing the structure and frequency of family meetings and parent-time. Mother's counsel pointed to this testimony in his closing argument to assert in Mother's defense (and relevant to this appeal) that the pandemic inhibited her progress. ¶18 On December 11, in an oral ruling, the juvenile court noted the case had well exceeded the statutory time limit for receiving reunification services and terminated them, finding "substantial risk" in returning the Children to Mother. The court highlighted the twins’ desire, expressed at the permanency hearing and all along, to remain in the kinship placement. And it emphasized that, in this placement, the Children are not only "enjoying everything that young children should be able to" but are also making "significant strides" emotionally, behaviorally, and academically. The court recognized Mother's progress, finding "no doubt" Mother had "substantially complied with" the family plan. But the "issue" for the court was that "compliance with [the family plan] [was not] the sole requirement here." The court "again ... [came] back to" the fact that Mother "serve[s] as a trigger" for the Children. It pointed, in part, to testimony describing how the Children are "suffering post-traumatic stress" from the thought of returning to her custody. And although the court was concerned about the park incident's effect on the twins, it was "more concerned" about what it meant for M.Y. The court stated that, whether Mother received custody of the Children, M.Y. was "at risk for harm" with Mother given the "likelihood of [her] running away" in the future. It suggested Mother had not "internalized the teachings" from her therapists. And the court was not persuaded by Mother's closing argument that the pandemic hindered her ability to do so. It acknowledged that "the pandemic did throw a monkey-wrench" into the child-welfare and court systems but ultimately concluded it "in no way ... stop[ped] any of the services [Mother] was getting at the time." The court did not find it of great consequence that the pandemic necessitated outdoor parent-time, stating, "Nothing wrong with [parent-time] occurring in a park. Children love being in an outdoor setting and whether or not [Mother] ... receives custody of [the Children] back, [she] would eventually have to take [the Children] to a park ...." And to the extent that the pandemic provided an opportunity to have "multiple therapists ... participate in the hearings" at the same time, the court saw it as a "blessing" rather than hindrance to Mother's progress.
The court also heard testimony from Mother's peer parent and Mother's therapist, though we do not find this relevant to her appeal. Mother's peer parent never actually observed Mother's parenting because after the park incident Mother's parent-time had been restricted to time supervised by DCFS. Further, Mother's therapist's testimony about her progress and about how none of her diagnoses prevented her from parenting is not relevant to this appeal because the court did not rely on Mother's mental health to find termination of her rights strictly necessary. To the extent the issue was discussed in the court's best interest analysis, the court only applauded Mother's progress.
¶19 Accordingly, the court terminated services and changed the primary permanency goal from reunification to adoption and the concurrent permanency goal from adoption to permanent custody and guardianship.
Specifically, the record states a concurrent permanency goal of "guardianship with a relative." But we see no meaningful difference in this case between that phrase and "permanent custody and guardianship."
¶20 In the following month, the State filed a petition to terminate Mother's parental rights. After a failed mediation, the court set the matter for trial, to begin on June 7, 2021. The termination trial spanned two days and consisted of testimony from six individuals, each of whom had testified at the November permanency hearing (M.Y.’s therapist, the twins’ therapist, the DCFS caseworker, Mother's therapist, Aunt, and Mother). Indeed, much of the trial testimony resembled evidence from the permanency hearing. We summarize the trial testimony under six common themes.
¶21 First, the trial testimony suggested, just as the permanency hearing testimony had, that the Children need a stable and loving caregiver and that Mother had not adequately learned to be one. It showed Mother could not independently manage M.Y. or respond appropriately to the twins’ emotions. And Mother's own testimony again betrayed an inflexible and unsupportive parenting style.
¶22 Second, the collective testimony portrayed Aunt's house as a "secure base" where the Children felt safe and comfortable. The testimony demonstrated Aunt is patient and non-judgmental with, and loving and attentive to, the Children. Further, Aunt implemented skills to appropriately manage M.Y. and created boundaries to keep the twins separate from M.Y.’s discipline. The testimony showed the many ways in which Aunt helped the Children succeed in school. By all accounts, she provided the kind of care the Children need.
¶23 Third, the testimony depicted the Children's substantial growth over the two-and-a-half years in Aunt's care. The twins were performing at grade level, had made progress in therapy that was "night and day," and had become "outgoing" and "happy." M.Y., too, had improved. In Aunt's care, M.Y. learned to speak in full sentences, walk properly, and better control her impulses. Aunt testified M.Y. had become a good listener and respectful. M.Y.’s therapist described M.Y.’s cognitive improvements and said M.Y. had stopped harming herself.
¶24 Fourth, the testimony suggested that stability, consistency, and routine are of particular importance to the Children and that a change in caregivers could destabilize them. M.Y. is sensitive to her environment, her impulses and aggression "flare-up[ ]" when she is confronted with changes to her routine, and varied parent-time schedules affect M.Y.’s "ability to regulate." The testimony further demonstrated that for "about a day" after parent-time with Mother, M.Y. regresses and becomes loud and obstinate. And the testimony portrayed stability as important to the twins and their trauma recovery. It suggested a change in caregivers would cause the twins to "regress" to "increased amounts of anxiety."
This was further confirmed in a July 2020 progress report stating concerns "around [M.Y.] having toileting issues again and accidents" during and after parent-time with Mother.
¶25 Fifth, much of the testimony explored the Children's custodial preferences. Though the twins did not testify at trial, the caseworker described their concerns about returning to live with Mother and that, when discussing that living arrangement, S.Y. had facial contortions and both twins "shut down." The caseworker testified that the twins at times did not want to spend parent-time with Mother. As for M.Y., the caseworker testified that she seemed to enjoy her time with Mother and sometimes it was hard to get her to leave parent-time. M.Y.’s therapist said M.Y. did not express worry about returning to live with Mother, though it was not clear that M.Y. fully understood what such a transition would involve. Lastly, Aunt testified that though permanent custody and guardianship had been discussed with Aunt, Uncle, and the Children, "all five of [them] want adoption."
¶26 Finally, the court heard testimony about the effects of the pandemic and the peer parenting program's delay on Mother's progress. As at the permanency hearing, testimony portrayed the pandemic as disruptive, for it required transitioning M.Y.’s therapy to remote meetings (which were half as long as the pre-pandemic, in-person ones) and affected M.Y.’s ability to regulate her behavior. The frequency of parent-time depended on "what the pandemic ... allowed," which in practice involved less frequent and exclusively outdoor parent-time. As to the peer parenting program, Mother was referred to it in May 2020 but did not begin until September 2020 because there was a waiting list. Further, although a parent cannot begin the program when a DCFS case is initiated because the program requires prerequisite skills, it was unusual for it to begin "almost 14 months after the case started."
¶27 During closing arguments, the State explained why, in its view, a permanent guardianship would not be in the Children's best interest and argued that terminating Mother's parental rights was strictly necessary. Mother's counsel argued against termination and for permanent custody and guardianship. And Mother's counsel chalked up any lack of progress on Mother's behalf to circumstances beyond Mother's control, namely, the pandemic and the peer parenting program's waitlist.
¶28 The juvenile court issued an order on August 10 terminating Mother's parental rights. First, it found statutory grounds for terminating her rights, including neglect, abuse, unfitness, and failure of parental adjustment. Second, the court conducted a best interest analysis and found termination "strictly necessary" and in the best interest of the Children. The court's best interest analysis stated, in its entirety:
Mother received services for an extended period of time. Mother was able to comply with some of the requirements of the [family
plan]. She was able to address her substance abuse issues, seek employment and take the necessary steps towards stable housing. The concern for the court was and is Mother's inability to take direction from the Children's individual therapist and from the family therapist. Mother was and is unable to emotionally support [the] Children who have suffered significant trauma. She is unable to read their body language or their cues as to when they need emotional support. [The] Children's therapist and the family therapist testified that [the] Children have stabilized in their current placement. They developed skills on how to cope and address their trauma. [The] Children look towards their current placement for all their emotional and physical support. According to the therapists, if the Children's placement is disrupted they will regress and become destabilized.
It is strictly necessary and in the best interests of [the Children] to terminate the parental rights, including any and all residual rights of [Mother] so the [C]hildren can be adopted and achieve security, stability, and a sense of permanency.
ISSUES AND STANDARD OF REVIEW
¶29 Mother contends the juvenile court erred in its best interest analysis by failing to consider, first, a permanent custody and guardianship and, second, "two important facts"—"the effect of the pandemic and the effect of the delay in the peer-parenting program."
Mother also argues that key findings underlying the juvenile court's best interest determination were "against the clear weight of the evidence." But because we find the court's best interest analysis "infected" by a "threshold legal error," it is unnecessary to address whether the findings were against the clear weight of the evidence. See In re J.A.L. , 2022 UT 12, ¶¶ 17–18, 506 P.3d 606.
¶30 "Whether a parent's rights should be terminated presents a mixed question of law and fact." In re B.R. , 2007 UT 82, ¶ 12, 171 P.3d 435. The juvenile court's decision to terminate parental rights is "factually intense" and, thus, is entitled a "measure of deference." See In re E.R. , 2021 UT 36, ¶¶ 32–33, 496 P.3d 58 (quotation simplified). "But such deference is not absolute." Id. ¶ 32. A juvenile court's decision can be overturned if it "failed to consider all of the facts," it "considered all of the facts and its decision was nonetheless against the clear weight of the evidence," or it "is premised on a threshold legal error." See In re B.R. , 2007 UT 82, ¶ 12, 171 P.3d 435 ; In re J.A.L. , 2022 UT 12, ¶ 17, 506 P.3d 606.
ANALYSIS
¶31 Mother challenges the juvenile court's best interest analysis. This analysis is one of two "separate findings" necessary to terminate parental rights. See In re B.T.B. (In re B.T.B. II) , 2020 UT 60, ¶ 46, 472 P.3d 827 ; see also Utah Code Ann. § 80-4-104(12)(a) (LexisNexis Supp. 2022). First, the court must find statutory grounds for termination—for instance, abuse, neglect, or parental unfitness. See Utah Code Ann. § 80-4-301 (LexisNexis Supp. 2022); see also In re B.T.B. II , 2020 UT 60, ¶ 46, 472 P.3d 827 . "Second, the juvenile court must find that termination of the parent's rights is in the best interests of the child." In re B.T.B. II , 2020 UT 60, ¶ 46, 472 P.3d 827 (quotation simplified); see also Utah Code Ann. § 80-4-104(12)(a). Mother challenges only the juvenile court's best interest analysis and not its finding on the statutory grounds for termination.
¶32 In examining a child's best interest, a court must begin from the "legislatively mandated" "default position" that a child's best interest lies in being raised by the child's natural parents. In re B.T.B. II , 2020 UT 60, ¶¶ 65–66, 472 P.3d 827 ; see also Utah Code Ann. § 80-4-104(8) ; cf. id. § 80-4-104(1) ("Under both the United States Constitution and the constitution of this state, a parent possesses a fundamental liberty interest in the care, custody, and management of the parent's child."); id. § 80-4-104(12)(a) ("Wherever possible, family life should be strengthened and preserved ...."). So, there is a "strong presumption" favoring the natural parents, and termination is "a drastic measure that should be resorted to only in extreme cases." See In re B.T.B. , 2020 UT 60, ¶ 52, 472 P.3d 827 ; In re B.T.B. (In re B.T.B. I) , 2018 UT App 157, ¶ 12, 436 P.3d 206 (quotation simplified), aff'd , 2020 UT 60, 472 P.3d 827.
¶33 But this default position favoring the natural parents can be overcome using a "broad" and "holistic" analysis, giving "full and careful consideration to all of the evidence presented with regard to the constitutional rights and claims of the parent." See In re B.T.B. I , 2018 UT App 157, ¶ 47, 436 P.3d 206 ; In re G.D. , 2021 UT 19, ¶ 76, 491 P.3d 867 (quotation simplified). A juvenile court may not, for instance, terminate parental rights merely because "a parent ... fail[s] to be a model parent." Utah Code Ann. § 80-4-104(4)(a). Nor may it do so based on "categorical concerns" of permanency or of the possibility of a parent reentering a child's life. In re A.H. , 2022 UT App 114, ¶¶ 52, 54, 518 P.3d 993 (quotation simplified). Instead, it must find "compelling reasons" to do so. See Utah Code Ann. § 80-4-104(1). And there are specific factors the court must consider when determining whether compelling reasons exist. See id. § 80-4-303 (providing that where "a child is not in the physical custody of the child's parent or parents, the juvenile court, in determining whether parental rights should be terminated, shall consider" "the physical, mental, or emotional condition and needs of the child"; the child's preferences (if the child has "sufficient capacity" to express them); the parent's efforts to adjust the parent's conduct; and "any other factor that the juvenile court considers relevant in the determination of whether to terminate parental rights"); see also In re H.F. , 2019 UT App 204, ¶ 14, 455 P.3d 1098 (describing other relevant factors, including "the child's bond with caregivers," "the child's need for permanency and stability," "the potential risk of harm if returned to the parents’ care," and "the parent's demeanor[ ] [or] attitude toward his or her child" (quotation simplified)). Moreover, the court must analyze whether termination is "strictly necessary." See Utah Code Ann. § 80-4-104(12)(b) ; see also In re H.F. , 2019 UT App 204, ¶ 14, 455 P.3d 1098.
¶34 The "strictly necessary" sub-analysis requires a court to "pause long enough to thoughtfully consider the range of available options that could promote the child's welfare and best interest." In re B.T.B. II , 2020 UT 60, ¶ 69, 472 P.3d 827. The court must determine whether a feasible option "short of imposing the ultimate remedy of terminating the parent's rights" exists, and if it does, the court must choose it. See id. ¶¶ 66–67 (quotation simplified); see also id. ¶ 74 (finding termination appropriate only when "no other option can achieve the same welfare and best interest for the child"). And the court must consider these alternatives "on the record ." Id. ¶ 74 (emphasis added). Only after the juvenile court "articulates supported reasons for rejecting [feasible] alternatives" are such findings "entitled to deference on appeal." In re C.T. , 2018 UT App 233, ¶ 16, 438 P.3d 100 (emphasis added).
¶35 Mother's challenge is twofold. First, she challenges the court's best interest analysis narrowly, on strict necessity grounds. Second, she challenges the best interest analysis broadly, asserting "the juvenile court ... failed to consider all the facts relevant to the best interest analysis." We address each issue in turn. I. Strict Necessity
During oral argument, the guardian ad litem asserted, for the first time, that Mother's strict necessity claim was unpreserved. She offered two reasons to support this assertion. First, she argued that Mother's claim challenges the adequacy of the juvenile court's findings, such that Mother needed to preserve her claim with a "post-judgment motion." See In re K.F. , 2009 UT 4, ¶ 60, 201 P.3d 985 ("A plaintiff waives any argument regarding whether the ... court's findings of fact were sufficiently detailed when the plaintiff fails to challenge the detail, or adequacy, of the findings with the ... court." (quotation simplified)). Second, citing In re adoption of B.B. , 2017 UT 59, 417 P.3d 1, the guardian ad litem argued that because "the request [for permanent guardianship] was made by Mother, not the foster placement," as "Aunt never petitioned [the court for it]," the option "was never on the table" and the juvenile court did not have to consider it. We will "not, as a matter of fairness, address arguments that rear their heads for the first time in oral argument." See In re Durbano , 2019 UT 34, ¶ 34 n.7, 449 P.3d 24 (quotation simplified).
In any event, the guardian ad litem has provided nothing more "than bald citation to authority" to support her argument. See CORA USA LLC v. Quick Change Artist LLC , 2017 UT App 66, ¶ 2, 397 P.3d 759. She does not explain why the waiver argument, assuming it applies here at all, would bar this court from reversing a threshold legal error. Nor does she explain how In re adoption of B.B. ’s modest holding, recognizing a parent's right under the Indian Child Welfare Act "to notice and to intervene in ... adoption proceedings," compels the more assuming one, that a parent (nonetheless a foster placement) must formally petition the court for permanent guardianship or risk losing the option altogether. See In re adoption of B.B. , 2017 UT 59, ¶ 3 n.2, 417 P.3d 1. To the contrary, juvenile courts have an "affirmative onus," an "independent obligation[ ] imposed by statute, to assess whether termination is strictly necessary" (and to consider feasible alternatives therein). In re J.P. , 2021 UT App 134, ¶ 21 n.3, 502 P.3d 1247 (quotation simplified). And although "the court's assessment in this regard is of course guided by the parties’ arguments and specific requests for relief," id. , it is a leap to say that a foster placement (or even a parent) must formally petition the court. Cf. In re J.J.W. , 2022 UT App 116, ¶ 19, 520 P.3d 38 ("[I]n some instances (e.g., where the existence of a particular option would not be readily apparent to the court), a parent may need to expressly ask a trial court to consider a specific non-termination option in order to properly preserve the right to argue, on appeal, that the court did not adequately consider that option." (emphases added)). Here, a permanent guardianship was readily apparent to the court, insofar as the court set it as a concurrent goal after the permanency hearing and asked Aunt if she was familiar with it as an option. In any case, Mother's counsel specifically asked the juvenile court, during closing argument at trial, to consider a permanent guardianship.
¶36 Mother asserts the juvenile court wrongfully found termination strictly necessary because it failed to consider feasible alternatives to termination, specifically, "the option of a permanent custody and guardship." We agree.
¶37 Where permanent guardianship is feasible and before the juvenile court, the statute requires the court to consider it on the record and determine if it "can equally protect and benefit the children in the case before it." See In re J.A.L. , 2022 UT 12, ¶ 25, 506 P.3d 606 (quotation simplified); see also In re J.P. , 2021 UT App 134, ¶ 21 n.3, 502 P.3d 1247. This is especially true in cases in which the permanent guardianship is a kinship placement. See In re B.T.B. I , 2018 UT App 157, ¶ 55, 436 P.3d 206, aff'd , 2020 UT 60, 472 P.3d 827 (suggesting kinship placements "preserv[e] the possibility for rehabilitation of the parent-child relationship in the longer term" and that, in kinship placements, children "benefit from having more people—rather than fewer—in their lives who love them and care about them"); In re A.H. , 2022 UT App 114, ¶¶ 48–49, 518 P.3d 993 (emphasizing the importance of kinship placements "in light of our legislature's guidance that families should be kept together whenever possible"); cf. In re J.P. , 2021 UT App 134, ¶ 11, 502 P.3d 1247 (describing the juvenile court's view that permanent guardianships "tend to work well only where ... the guardian and parent are willing to work together to preserve [the] parent-child relationship" and work less well when the guardian and parent have "little to no relationship," such as in a non-relative, foster-family placement (quotation simplified)).
¶38 To determine whether a permanent guardianship is in a child's best interest, the court must account for "the particularized circumstances of the case" and may not, for instance, reject the option on "categorical concerns" of permanency and stability. In re J.A.L. , 2022 UT 12, ¶ 25, 506 P.3d 606 ; see also id. ¶ 24 ("A permanent guardianship by definition does not offer the same degree of permanency as an adoption. ... If these categorical concerns were enough, termination and adoption would be strictly necessary across the board."); In re A.H. , 2022 UT App 114, ¶ 53, 518 P.3d 993 (noting that while it is "appropriate" to consider permanency and stability when weighing permanent guardianship against adoption, a court "must articulate case-specific reasons why the added layer of permanency that adoptions offer is important and why adoption would better serve the best interest of the children in question than the guardianship option would"). Rejecting a permanent guardianship without accounting for the particular facts of the case constitutes a threshold legal error. See In re J.A.L. , 2022 UT 12, ¶¶ 17–18, 25, 506 P.3d 606. It follows that the complete failure to analyze, on the record, a feasible permanent guardianship option that has been requested must, too, constitute threshold legal error. ¶39 This is the error the juvenile court made here. Neither the court's termination order broadly, nor its best interest analysis therein, contain the words "permanent custody and guardianship" (or something similar). On the record, the court thoroughly considered one termination alternative—returning custody to Mother—to the exclusion of any other. And it did so despite the supreme court's requirement that juvenile courts "thoughtfully consider the range of available options that could promote the child's welfare and best interest." See In re B.T.B. II , 2020 UT 60, ¶ 69, 472 P.3d 827 (emphasis added). And permanent guardianship clearly fell within this available range, given that after the permanency hearing and prior to termination, the court set the Children's concurrent goal to permanent guardianship, permanent guardianship was discussed with Aunt, and both parties presented thoughts on permanent guardianship in their closing arguments at trial. See In re J.P. , 2021 UT App 134, ¶ 21 n.3, 502 P.3d 1247 (noting that the juvenile court's strict necessity analysis is "guided by the parties’ arguments and specific requests for relief"). The court's failure to consider Mother's request for permanent guardianship is further puzzling under the facts of this case, where the arrangement would be a kinship placement.
¶40 Without having the juvenile court's reasons for rejecting permanent guardianship, we are left to review its best interest analysis for evidence that it is strictly necessary to terminate Mother's parental rights, but we come up short. To be sure, the record does not depict Mother as an exemplary parent. But that is an insufficient ground to terminate her parental rights under these circumstances. See Utah Code Ann. § 80-4-104(4)(a) (LexisNexis Supp. 2022). The State concedes that "the juvenile court's findings [regarding permanent guardianship] could be more complete," yet asserts that "implicit[ ] reject[ion]" is all that is needed. It asks us to assume, post hoc, that if the juvenile court had considered a permanent guardianship on the record, it would have denied it. In the State's words, what is missing is "essentially one sentence." We disagree.
¶41 There are two problems with the State's argument. First, if we were to infer that the juvenile court denied permanent guardianship, it would open the door to new deficiencies. The court states only that terminating Mother's parental rights "is strictly necessary ... so the [C]hildren can be adopted and achieve security, stability, and a sense of permanency." If we read this statement as implicitly rejecting permanent guardianship, it would convey categorical concerns of stability and permanency, and our supreme court has already made clear that a categorical concern of permanency "is not the question under our law." See In re J.A.L. , 2022 UT 12, ¶ 24, 506 P.3d 606.
Mother goes one step further and asserts that stability per se is an "insufficient" ground to find termination strictly necessary. We disagree. Although categorical concerns of stability are inadequate, concerns derived from "personal" and "particular" needs for stability are sometimes adequate. See, e.g. , In re E.R. , 2019 UT App 208, ¶¶ 12, 14, 457 P.3d 389 (determining the court's emphasis on permanency to be "in this case" "reasonable," in part because it rested not on "the general desirability of permanency" but instead on the child's particular "psychological issues," including "behavioral and emotional dysregulation, secondary post-traumatic stress disorder (PTSD), mood disorder and Asperger's" (quotation simplified)), aff'd , 2021 UT 36, 496 P.3d 58. Whether the record before us reflects such particular vulnerabilities is beside the point because the juvenile court did not tailor its analysis in this regard.
Relatedly, Mother asserts permanency is "entirely irrelevant to the consideration of permanent custody and guardianship because no disruption would occur—the Children would stay in the Kinship Placement and have parent-time with Mother, as had been occurring throughout the case." But it is not the case (as Mother claims) that the legal change from kinship placement to guardianship would cause "no disruption." Although a permanent guardianship would be much the same arrangement as has been in place, the current arrangement has been disruptive. The evidence reflects as much. See supra ¶ 24.
¶42 To escape this flaw, the State asserts, under a generous reading of the court's order, that the court "provided some additional detail." Specifically, the State points to the court's findings, made in its best interest analysis, that Mother is unable "to take direction from" therapists and "to emotionally support [the] Children." It argues that the court relied on these facts, too, in finding termination strictly necessary. We note that reading the order in this light requires a second inference, as it is not clear that the court relied on other findings within the best interest analysis at large when it "implicitly rejected" a permanent guardianship. And even if we made that inference, that argument would not win the day.
¶43 This brings us to the second problem with the State's argument. Our caselaw is clear that before terminating parental rights, a juvenile court must state, on the record, its reasons for rejecting feasible alternatives. See In re B.T.B. II , 2020 UT 60, ¶ 74, 472 P.3d 827 ; In re C.T. , 2018 UT App 233, ¶ 16, 438 P.3d 100. This leaves no room for "implicit" rejection. Indeed, cases like the one before us emphasize why it is imperative for the juvenile court to state its reasoning: if our analysis is guided not by the termination decision itself but instead by the record, conducting a holistic inquiry of the circumstances, it is far from obvious why it compels rejecting permanent guardianship here. To put it another way, we do not find the facts before us so egregious that this conclusion must follow.
¶44 Suppose the juvenile court had considered a permanent guardianship on the record, accounting for the following: Mother's learned awareness of the Children's needs; how, during recent parent-time, she managed M.Y. safely; her substantial compliance with the family plan; reports by DCFS portraying Mother's improvement; the Children's preferences to spend time with Mother; and the fact that even the caseworker, at least at the time of the permanency hearing, felt "comfortable" recommending supervised parent-time. "Presented with evidence like this, the juvenile court could have reasonably gone either way on the [strict necessity] question." See In re J.M. , 2020 UT App 52, ¶ 40, 463 P.3d 66. It is at least possible that if the court had considered these facts in analyzing permanent guardianship, it would find this option in the Children's best interest. In short, if all that is missing from the court's termination order is "one sentence," how to draft it (or even which conclusion it would reach) is not obvious to us.
On appeal, Mother asserts that, "[c]ontrary to the juvenile court's finding, Mother complied with all —not some—of the requirements in the [family plan]." We disagree. The family plan required Mother to complete group treatment and parenting classes and to obtain an updated medication assessment. See supra ¶ 5. And it is not clear from the record that these requirements were satisfied. Contrary to Mother's assertions, the record suggests Mother participated only in individual therapy, did not complete the parenting classes, and did not submit her medical assessment to DCFS. Thus, we do not find persuasive Mother's argument that she complied with "all" of the family plan. And, even if we did, the upshot of full, as opposed to substantial, compliance is unclear to us: as the juvenile court recognized, "compliance with [the family plan] isn't the sole requirement" to, or consideration in, avoiding termination of one's parental rights.
Trial testimony suggested M.Y. enjoyed parent-time with Mother. Although the court ultimately found in its termination order that the twins "both expressed to the court on numerous occasions that they want to remain in their current placement and be adopted by [Aunt] and [Uncle]," it does not necessarily follow from this that the twins want to stop spending time with Mother. In fact, some portions of the record suggest the opposite: S.Y. testified she enjoyed recent parent-time with Mother, and K.Y. reported she did not "really like" nor "want to live with" Mother, but she did not "like to lose her either."
These are considerations the juvenile court may weigh in its best interest analysis. See supra ¶ 33.
¶45 Termination is "a drastic measure," to be "resorted to only in extreme cases." In re B.T.B. I , 2018 UT App 157, ¶ 12, 436 P.3d 206, aff'd , 2020 UT 60, 472 P.3d 827 (quotation simplified). If the juvenile court finds it necessary to employ this measure, it must follow the procedure in place, which requires, in part, articulating "supported reasons for rejecting" any feasible alternatives. See In re C.T. , 2018 UT App 233, ¶ 16, 438 P.3d 100. In this case, the scope of that analysis includes permanent guardianship. Without it, we are asked to uphold, on inference and conjecture alone, the juvenile court's termination order, and this we decline to do.
¶46 Importantly, though, it is not our view that under no circumstances can the facts of this case call for termination. To the contrary, they might. But this is a decision for the juvenile court, as a finder of fact, and not for us. The court's failure to make this decision constitutes a threshold legal error that must be resolved.
II. Entirety of the Evidence
¶47 Mother also contends the juvenile court erred by "fail[ing] to consider all the facts relevant to the best interest analysis." We agree in part.
¶48 Juvenile courts have "an affirmative mandate ... to give full and careful consideration to all of the evidence presented with regard to the constitutional rights and claims of the parent." In re G.D. , 2021 UT 19, ¶ 76, 491 P.3d 867 (quotation simplified). Within this broad analysis, the juvenile court should consider "any evidence that is probative in determining what is in the child's best interest," including, as relevant to our purposes, a child's emotional needs and a parent's efforts to adjust her conduct. See In re T.E. , 2011 UT 51, ¶ 41, 266 P.3d 739 (emphasis added); Utah Code Ann. § 80-4-303(1)(a), (b) (LexisNexis Supp. 2022). Thus, in the case at hand, evidence implicating Mother's ability to understand the Children's emotional needs, and her efforts to adjust her parenting skills accordingly, fell within this affirmative mandate. Moreover, because a best interest analysis is "conducted in present-tense fashion, as of the date of the trial or hearing convened to consider the matter," such evidence may continue to fall within the court's mandate, if presently relevant. See In re A.H. , 2022 UT App 114, ¶ 58, 518 P.3d 993.
¶49 Throughout the permanency hearing and the termination trial, Mother elicited testimony discussing the ways in which the pandemic and the peer parenting program's delay affected her progress. Collectively, testimony suggested the pandemic created obstacles for Mother surrounding the frequency, length, format, and location of therapy and parent-time. And as to the peer parenting program, the testimony showed that because Mother was on a four-month waiting list, she began the program fourteen months into the case, leaving her with only four months of reunification services to complete the program. Mother contends the court's failure to account for this evidence constitutes reversible error because it could alter conclusions the court relied on in its best interest analysis: that Mother failed to "internalize skills from therapy" and was unable to "meet the Children's emotional needs."
The record contradicts the State's assertion that "every witness rejected Mother's suggestion that her services were disrupted by the pandemic."
¶50 Although the juvenile court did not address either the pandemic or the peer parenting program waitlist in its best interest analysis, or even within the termination order, the court did address Mother's pandemic defense during the permanency hearing. There, the court considered the pandemic's effect on Mother's receipt of services, noting the pandemic "thr[ew] a monkey-wrench" into the child-welfare and court systems but "in no way ... stop[ped] any of [Mother's] services." Also during the permanency hearing, the court acknowledged that parent-time moved outdoors but found that there was "[n]othing wrong with [parent-time] occurring in a park," as it is something children love and something that Mother would have to do in the future–pandemic or not. If anything, the court saw the pandemic as a "blessing" to Mother's progress, insofar as it provided an opportunity to have "multiple therapists ... participate in the hearings" at the same time, which is uncommon in DCFS cases.
¶51 Though perhaps it would have been better for the juvenile court to address the pandemic defense in its termination order, we cannot agree with Mother that this omission constitutes a failure to fulfill the court's "affirmative mandate ... to give full and careful consideration to all of the evidence." See In re G.D. , 2021 UT 19, ¶ 76, 491 P.3d 867 (quotation simplified). The nature of the permanency hearing and that of the trial, and the evidence presented at each, significantly overlapped. And the juvenile court considered the effect of the pandemic at the permanency hearing. There, the court found the evidence unpersuasive and explained its reasoning. Requiring the court to reiterate its reasoning in its termination order would be redundant. And overturning the court's decision because a reasonable mind could disagree with it would be judicial overreach. See In re E.R. , 2021 UT 36, ¶ 32, 496 P.3d 58 (providing that, unless the juvenile court "failed to consider all of the facts or reached a decision against the clear weight of the evidence," "[a] measure of deference is owing" to the court's decision and that decision "should be respected" (quotation simplified)).
¶52 Neither the permanency nor termination orders address the peer parenting program's delay. In response to Mother's argument that this was in error, the State counters that the program "was but one additional service." This misses the mark. That rebuttal speaks only to the persuasive value of Mother's defense—a question of fact —and does not get to the heart of the present issue: whether the court had a duty, under its "affirmative mandate," "to give full and careful consideration" to the testimony at issue. See In re G.D. , 2021 UT 19, ¶ 76, 491 P.3d 867 (quotation simplified). "Extra" or not, the program was a family plan requirement. See supra ¶ 5. And we do not see it as outside all possibility for the juvenile court to have found this delay affected Mother's ability to internalize new parenting skills (affecting, by proxy, her "constitutional rights and claims") had the court considered it on the record. See In re G.D. , 2021 UT 19, ¶ 76, 491 P.3d 867. The court should, on remand, if presently relevant, account for the program's delay, stating why it does or does not find that defense persuasive.
Indeed, the State raised this same argument at the permanency hearing.
CONCLUSION
¶53 The juvenile court's failure to consider, on the record, feasible termination alternatives brought before it—here, permanent guardianship—constitutes a threshold legal error. On these grounds, we reverse. Absent the court articulating its reason for denying a permanent guardianship, we cannot now pay deference to its strict necessity analysis or best interest analysis at large. On remand, the juvenile court must explain why it finds, or does not find, that a permanent guardianship is in the Children's best interest. And the court should do this "based on the situation at the time of the hearing," accounting for new, material evidence, if any, that has developed since the court first conducted its best interest analysis in June 2021. See In re A.H. , 2022 UT App 114, ¶ 58, 518 P.3d 993. The court should factor in the effect of the peer parenting program's delay on Mother's progress to the extent this evidence is relevant under a present-tense best interest analysis. Finally, we note that though the court may, in light of its renewed, present-tense analysis, change its decision, so too may it reach its same conclusion for different reasons.