In re J.L... , 2022 UT 12 ( 2022 )


Menu:
  •                              
    2022 UT 12
    IN THE
    SUPREME COURT OF THE STATE OF UTAH
    STATE OF UTAH, in the Interest of J.A.L. and J.O.L.,
    Persons Under Eighteen Years of Age
    J.L. and J.A.,
    Appellants,
    v.
    STATE OF UTAH,
    Appellee.
    No. 20200271
    Heard September 16, 2021
    Filed February 24, 2022
    On Certification from the Court of Appeals
    Fifth District Juvenile, Iron County
    The Honorable Troy A. Little
    No. 1161641, 1161642
    Attorneys:1
    Alexandra Mareschal, J. Frederic Voros, Jr., Julie J. Nelson, Salt Lake
    City, Christa G. Nelson, Cedar City, for appellant J.L.
    Colleen K. Coebergh, Salt Lake City, Candice N. Reid, Cedar City,
    for appellant J.A.
    Sean D. Reyes, Att’y Gen., Carol L. C. Verdoia, John M. Peterson,
    Asst. Att’ys Gen., Salt Lake City, for appellee
    Martha Pierce, Salt Lake City, Guardian ad Litem
    for J.A.L. and J.O.L.
    _____________________________________________________________
    1Attorneys for amici curiae: William A. Thorne, Jr., Midvale,
    Movant Pro Se; Kirstin Norman, American Fork, for Parental
    Defense Alliance of Utah.
    In re J.L.
    Opinion of the Court
    ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court in
    which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE, and
    JUSTICE PETERSEN joined.
    ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
    ¶1 This is an appeal from a juvenile court order terminating the
    parental rights of the mother and father of two children. The
    Division of Child and Family Services has been engaged with this
    family since at least July 2018. A range of support services has been
    provided over time. The children were removed from the mother’s
    custody in December 2018 and placed in foster care. And at various
    times both the father and mother have been subject to a court order
    prohibiting contact between them and to orders requiring treatment
    for domestic violence, substance abuse, and mental health issues.
    ¶2 The Division initially pursued a permanency goal of
    reunification with the parents. When reunification failed, the
    Division petitioned to change the goal to adoption. After a hearing
    and an order granting the new permanency goal, the children were
    moved to a kinship placement with the father’s brother in Arkansas.
    The uncle had agreed to adopt the children. And after a subsequent
    hearing on the termination of parental rights, the juvenile court
    entered an order terminating the parental rights of both the mother
    and father.
    ¶3 In the termination proceeding, the juvenile court found that
    both parents were “unfit” and had “neglected” the children. The
    court based its determination on factors listed in Utah Code section
    78A-6-508(2)—concluding that the children were “abused and
    neglected” by “[t]he domestic violence perpetrated by the Father and
    the Mother’s failure to protect the children,” and that the parents’
    substance abuse “render[ed] [them] unable to care for the children.”
    ¶4 After finding statutory grounds to terminate, the court
    determined that termination was “strictly necessary” in the “best
    interest” of the children. It concluded that the children could not be
    returned home “today”—or “at this point”—because the mother and
    father had failed to sufficiently rehabilitate themselves. And it held
    that the children’s “tremendous need for permanency and stability”
    could not be met while preserving the parents’ rights within a
    permanent custody and guardianship arrangement.
    ¶5 Six weeks after the termination order was entered, the
    adoptive placement with the uncle failed. The children returned to
    state custody in Utah.
    2
    Cite as: 
    2022 UT 12
    Opinion of the Court
    ¶6 After the kinship placement failed, the father and mother filed
    motions for post-judgment relief. The mother sought 60(b)(6) relief in
    light of the “extraordinary circumstances” of the failure of the
    kinship placement. The father filed a 60(b)(6) motion on the same
    grounds. He also sought relief under 60(b)(5), asserting that the
    failed kinship placement meant that the judgment was “no longer
    equitable.” The juvenile court denied the motions.
    ¶7 The mother and father appealed. The court of appeals certified
    the matter to this court based on a perceived need for our review of
    “a challenge to the current appellate standard of review in child
    welfare proceedings” and to consider “an issue regarding the effect
    of statutory changes on supreme court case law.”
    ¶8 The mother and father raise different claims of error on
    appeal. The mother challenges only the juvenile court’s findings,
    made at an evidentiary permanency hearing and allegedly at a
    subsequent review hearing, that she appeared “under the influence”
    at various hearings. She asserts that a judge is not qualified to make
    such findings without expert testimony. And she contends that the
    court denied her due process of law by making the findings without
    giving her notice and an opportunity to be heard.
    ¶9 The father challenges the juvenile court’s best interest
    determination2 and the court’s denial of his motions for post-
    judgment relief. As an initial matter, the father asks us to conduct de
    novo review of termination proceedings—and overturn the
    deferential standard of review established in State ex rel. B.R.,
    
    2007 UT 82
    , 
    171 P.3d 435
    . He also asks us to require specific factual
    findings and legal conclusions in parental rights termination orders.
    Regardless of our decision on the appropriate standard of review,
    the father contends that the juvenile court erred in concluding that
    termination of the father’s rights was “strictly necessary” to promote
    the “best interest” of the children.
    _____________________________________________________________
    2  The father does not challenge the juvenile court’s determination
    that he is “unfit.” See In re B.T.B., 
    2020 UT 60
    , ¶¶ 19–20, 46, 76, 
    472 P.3d 827
    , reh’g granted (Aug. 13, 2020), as amended (Aug. 14, 2020)
    (clarifying that termination of parental rights under Utah law
    demands a “two-step inquiry” in which the juvenile court must first
    determine that the parent is “unfit” on statutory grounds and then
    “must find that termination of the parent’s rights is in the best
    interests of the child” (citations and internal quotation marks
    omitted)).
    3
    In re J.L.
    Opinion of the Court
    ¶10 We affirm in part and reverse and vacate in part. First, we
    note that the mother’s claims are unpreserved and hold that she has
    failed to carry the burden of establishing plain error. Second, we
    reject the father’s request that we abandon a deferential standard of
    review of a best interest determination but find threshold legal errors
    in the juvenile court’s best interest analysis—in the assessment of
    whether the father had made sufficient progress in his rehabilitation
    under Utah Code section 78A-6-509(1)(b), and in the assessment of
    whether termination of parental rights is “strictly necessary” under
    Utah Code section 78A-6-507. Third, we vacate and remand for a
    new best interest determination under the law as clarified in this
    opinion. In so doing, we note that the mother failed to highlight the
    legal errors identified by the father in her briefs on appeal but
    conclude that the mother’s rights should be on the table on remand
    in the unique circumstances of this case.
    I
    ¶11 The mother challenges the juvenile court’s findings that she
    appeared “under the influence” at court hearings. She asserts that
    the judge is not qualified to make such findings without expert
    testimony. And she claims that the court infringed her right to due
    process by making these findings without notice that the
    observations were being made and without affording her an
    opportunity to respond.
    ¶12 None of these points was preserved in the juvenile court,
    however. To succeed on appeal, the mother would therefore need to
    make a showing of plain error—that “(1) an error exists; (2) the error
    should have been obvious to the trial court; and (3) the error is
    harmful, i.e., absent the error, there is a reasonable likelihood of a
    more favorable outcome.” State v. Low, 
    2008 UT 58
    , ¶ 20, 
    192 P.3d 867
    (citations and internal quotation marks omitted).3 And the mother
    has failed to carry that burden.
    _____________________________________________________________
    3 Our court of appeals has recently observed that this court has
    not decided whether plain error applies in civil cases. Miner v. Miner,
    
    2021 UT App 77
    , ¶ 11 n.3, 
    496 P.3d 242
     (citing Utah Stream Access
    Coal. v. Orange St. Dev., 
    2017 UT 82
    , ¶ 14 n.2, 
    416 P.3d 553
     (noting
    that the court has “not . . . endorse[d] the ongoing viability of plain
    error review in civil cases”; “[n]or do we repudiate it”)). We have
    “not had an opportunity to enter this debate, and would be open to
    doing so in a case in which the matter is presented for our decision.”
    (continued . . .)
    4
    Cite as: 
    2022 UT 12
    Opinion of the Court
    ¶13 We have previously upheld a juvenile court’s legal
    conclusions based on observations of “outbursts” made in open
    court. In re T.E., 
    2011 UT 51
    , ¶¶ 44–45, 
    266 P.3d 739
    . And the juvenile
    court in this case did not even go so far as to make a legal
    conclusion. It relied on its observation of the mother in court to
    require her to be subjected to testing for substance use—a follow-up
    under a standing order requiring ongoing substance abuse testing.4
    So we do not see how it could have been error—and certainly not an
    obvious error—for the court to use its observations as a basis for
    such testing where the mother’s sobriety was already at issue.
    ¶14 Nor do we see a basis for concluding that any alleged error
    was prejudicial. In the termination order, the court refers to its
    “personal observations” of the mother only once—as a single
    consideration in a set of reasons supporting one of the five grounds
    for termination found by the court. And earlier in the proceedings,
    the court continued reunification services for the mother despite
    making a concurrent finding that “[t]hree quarters of the times the
    Mother is in court it appears she [is] under the influence of drugs”—
    and despite terminating reunification services as to the father in the
    same evidentiary permanency hearing. The mother has not
    established that there is any likelihood that her parental rights
    would not have been terminated if the juvenile court had not
    ordered testing on the basis of its observations, or if it had afforded
    the mother the right to respond that she asserts as a matter of due
    process.
    Utah Stream Access Coal., 
    2017 UT 82
    , ¶ 14 n.2. This is not such a case.
    Although the mother raises a claim of plain error, none of the parties
    ask us to rule on the propriety of plain error review in parental
    rights termination proceedings or in civil cases generally. And even
    if the doctrine of plain error does apply, the mother has failed to
    establish plain error. Infra ¶¶ 12–14. So we simply hold that the
    mother has not carried her burden of showing plain error.
    4 The termination order states that “[t]he [c]ourt asked for an
    updated substance abuse evaluation in July of 2019 because the
    [c]ourt has been concerned about the Mother coming to hearings
    when she was under the influence. It appeared to the [c]ourt that at
    some hearings the Mother would be clear and present, but on other
    occasions the Mother appeared to not be clear or present.”
    5
    In re J.L.
    Opinion of the Court
    II
    ¶15 The father challenges the termination of his parental rights
    on two grounds. He contends that the juvenile court erred in (a)
    concluding that termination of his rights was “strictly necessary” in
    the “best interest” of the children; and (b) denying his motions for
    post-judgment relief. We reverse on the first ground and decline to
    reach the second because it is mooted by our threshold decision.
    A
    ¶16 The father prefaces his challenge to the juvenile court’s best
    interest analysis with a request that we overrule our longstanding
    case law on the standard of review of parental rights termination
    orders—requesting that we replace the established deferential
    standard of review with a de novo review for correctness. But we
    rejected parallel requests in two recent decisions. See In re G.D.,
    
    2021 UT 19
    , ¶¶ 1, 3, 
    491 P.3d 867
    ; State ex rel. E.R., 
    2021 UT 36
    , ¶ 13,
    
    496 P.3d 58
    . And the father has not identified a persuasive ground
    for reconsidering these decisions.
    ¶17 In E.R. we clarified that the best interest inquiry is a fact-like
    “mixed determination of law and fact” that is subject to deferential
    review. 
    2021 UT 36
    , ¶¶ 17, 22. Appellate deference, of course, is not
    absolute. The juvenile court’s best interest analysis may be set aside
    if it is “against the ‘clear weight of the evidence.’” Id. ¶ 6. It is also
    subject to reversal where it is premised on a threshold legal error. See
    id. ¶ 16 (noting that we “afford [n]o deference” to the juvenile court’s
    “analysis of abstract legal questions” (alteration in original) (citation
    and internal quotation marks omitted)).
    ¶18 We reverse the juvenile court’s termination of the father’s
    parental rights on this basis. The juvenile court’s order was infected
    by two legal errors. And those errors foreclose the usual basis for
    deference to the conclusion that termination of the father’s rights
    was “strictly necessary” in the “best interest” of the children under
    Utah Code section 78A-6-507(1) (2020).5 See Rocky Ford Irrigation Co.
    v. Kents Lake Reservoir Co., 
    2020 UT 47
    , ¶ 78, 
    469 P.3d 1003
     (citation
    _____________________________________________________________
    5 The legislature amended the Termination of Parental Rights Act
    after the termination hearings in question. We cite and apply the
    version of the statute in effect at the time of the hearings. See State v.
    Clark, 
    2011 UT 23
    , ¶ 13, 
    251 P.3d 829
     (“[W]e apply the law as it exists
    at the time of the event regulated by the law in question.”).
    6
    Cite as: 
    2022 UT 12
    Opinion of the Court
    omitted) (holding that a district court’s findings were not owed
    deference where they were “infected by legal error”).
    1
    ¶19 In terminating the father’s parental rights, the juvenile court
    concluded that it would be “neglectful” to “[r]eturn[] the children to
    the Father today.” (Emphasis added.) It also found that a
    reunification of the children with the father would introduce a
    significant “safety risk” “at this time.” (Emphasis added.) And it
    raised the concern that the father might not “be successful outside of
    treatment” given the lack of “any indication of future success” based
    on “the Father’s past.”
    ¶20 These statements are premised on legal error. In a case where
    the child is not in the parent’s physical custody, the court must
    consider a set of “specific considerations” in assessing whether
    termination is strictly necessary in the best interest of children. UTAH
    CODE § 78A-6-509. And the listed considerations include “the effort
    the parent or parents have made to adjust their circumstances,
    conduct, or conditions to make it in the child’s best interest to return
    [the child to the] home after a reasonable length of time.” Id. § 78A-6-
    509(1)(b) (emphasis added).
    ¶21 The statute does not establish a specific timeframe for
    parents to “adjust their circumstances, conduct, or conditions.” But it
    does afford a parent a “reasonable length of time” to make any
    necessary adjustments. And that requires the court to consider
    whether any needed adjustments were made within a reasonable
    time.
    ¶22 The court retains a measure of discretion in deciding on the
    length of the “reasonable” time.6 But by statute it must exercise that
    discretion. And the juvenile court failed to do so here. It held that the
    father “ha[d] failed to appropriately adjust” his “circumstances,
    conduct, or conditions to make return in the children’s best interest.”
    In so doing, it failed to consider whether he had had a “reasonable
    _____________________________________________________________
    6  In so holding, we reject the father’s request that we establish a
    requirement that in order to terminate parental rights the court must
    find that it is “impossible” for a child to return to a parent over any
    period of time. The statute does not speak in terms of impossibility.
    It speaks in terms of reasonableness.
    7
    In re J.L.
    Opinion of the Court
    length of time” to do so.7 And it exacerbated the problem by
    focusing on static assessments that it would be “neglectful” to
    “[r]eturn[] the children to the Father today” and would introduce a
    significant “safety risk” if they returned to him “at this time.”
    2
    ¶23 The juvenile court also premised its termination decision on
    concerns about the “tremendous need for permanency and stability”
    of the children. It considered the possibility of preserving the father’s
    legal rights while awarding permanent custody to a guardian. But it
    rejected that move on the ground that it “would not . . . offer the
    same degree of permanency as an adoption,” given that a permanent
    guardianship could be terminated at the request of the guardian or
    at least subject to visitation by the father. And it held that this “lack
    of stability would be harmful for the children.”
    ¶24 This too was error. The court was right to consider the
    feasibility of a permanent guardianship. See In re B.T.B., 
    2020 UT 60
    ,
    ¶¶ 66–67, 
    472 P.3d 827
     (explaining that the “strictly necessary”
    analysis requires consideration of the possibility of “feasible
    options” like awarding custody to a permanent guardian (citation
    and internal quotation marks omitted)). But it fell into legal error in
    concluding that this option would not provide the “same degree of
    permanency as an adoption.” That is not the question under our law.
    A permanent guardianship by definition does not offer the same
    degree of permanency as an adoption. And there is always some risk
    that the permanent guardianship could come to an end, or be
    affected by visitation by the parent. If these categorical concerns
    were enough, termination and adoption would be strictly necessary
    across the board. But such categorical analysis is not in line with the
    statutory standard.
    _____________________________________________________________
    7 Utah Code section 78A-6-508(6) states that “fail[ure] to comply
    substantially with the terms and conditions of a plan within six
    months after the date on which the child was placed or the plan was
    commenced, whichever occurs later” is “evidence of failure of
    parental adjustment.” Earlier in the termination order, the juvenile
    court found that the parents were not in substantial compliance with
    the plan within six months. Despite this finding, the juvenile court
    must still engage with the section 509 timeframe. Failure of
    substantial compliance within six months is only “evidence” of
    failure to adjust.
    8
    Cite as: 
    2022 UT 12
    Opinion of the Court
    ¶25 By statute, the juvenile court must assess whether a
    permanent guardianship can “equally protect[] and benefit[]” the
    children in the case before it. G.D., 
    2021 UT 19
    , ¶ 75 (citation
    omitted). That standard is not met by the categorical concern that a
    permanent guardianship is not as stable or permanent as an
    adoption. It requires analysis of the particularized circumstances of
    the case before the court. No such analysis is presented here. And
    the court’s categorical dismissal of the possibility of a permanent
    guardianship is a further ground for reversal of the juvenile court’s
    decision.
    B
    ¶26 The above legal errors undermine our confidence in the
    juvenile court’s basis for terminating the father’s parental rights.
    They also foreclose the need for us to consider the father’s challenge
    to the denial of his motions for post-judgment relief. The correctness
    of the denial of those motions is mooted by our decision to reverse in
    light of the legal errors in the parental termination order.
    III
    ¶27 The father has established that the juvenile court’s
    termination order was infected by the above-noted legal errors. That
    leaves the question of the effect of those errors on our disposition on
    appeal. We conclude that a remand to the juvenile court is
    appropriate. And we hold that both parents’ legal rights should be
    on the table on remand.
    A
    ¶28 The juvenile court’s threshold legal errors foreclose the usual
    basis for deference to its factual findings and mixed determinations.
    In the face of such errors, an appellate court has at least two options.
    It may reverse and remand to the lower court for rehearing under a
    correct legal standard.8 Or it may review the lower court’s findings
    _____________________________________________________________
    8 See SIRQ, Inc. v. The Layton Cos., Inc., 
    2016 UT 30
    , ¶¶ 40–43, 56,
    
    379 P.3d 1237
     (remanding for a new trial on a false light verdict on
    the ground that “the trial court failed to exercise its gatekeeping
    function” to assure that the jury considered “only statements capable
    of defamatory meaning”); State v. Richardson, 
    2013 UT 50
    , ¶¶ 32, 45,
    
    308 P.3d 526
     (finding that the lower court had improperly excluded
    evidence and ordering a new trial).
    9
    In re J.L.
    Opinion of the Court
    under a non-deferential standard of review.9 We take the former
    course of action here in light of the important role that our juvenile
    courts play in applying a complex body of law to a matter
    encompassing an extensive factual and procedural record.
    B
    ¶29 In the parties’ briefing on appeal, only the father identified
    the above-noted legal errors as a basis for reversal. The mother’s
    appeal was limited to her challenge to the juvenile court’s findings
    that she appeared “under the influence” in court.
    ¶30 The father urges this as a basis for concluding that the
    mother is foreclosed from participating in the proceedings on
    remand, or from having her rights on the table in a new “best
    interest” analysis in line with the refinements in our law set forth
    above. See supra ¶¶ 21–22, 24–25. He notes that a claim is generally
    waived if not raised on appeal. See State v. Johnson, 
    2017 UT 76
    ,
    ¶¶ 15–16, 
    416 P.3d 443
    . And he asks us to hold that the mother
    forfeited her stake in a remand under claims of legal error that she
    failed to advance on appeal.
    ¶31 The father’s position finds some threshold footing in our law.
    As a general rule, our courts respect the prerogatives of the parties in
    deciding which claims to pursue (or forgo) in litigation. See Utah
    Stream Access Coalition v. VR Acquisitions, LLC, 
    2019 UT 7
    , ¶¶ 36–37,
    
    439 P.3d 593
    . In deference to those prerogatives, and in the interest of
    judicial economy and repose, the parties are generally stuck with the
    moves they make in litigation. Patterson v. Patterson, 
    2011 UT 68
    ,
    ¶¶ 15–17, 
    266 P.3d 828
    . Our courts do not lightly second-guess the
    parties by reviving a claim they have forfeited by their pleading or
    briefing decisions.10
    _____________________________________________________________
    9  See Rocky Ford Irrigation Co. v. Kents Lake Reservoir Co.,
    
    2020 UT 47
    , ¶¶ 80–81, 
    469 P.3d 1003
     (concluding that the lower court
    applied the incorrect legal standard for judging when a plaintiff
    brings an action in “bad faith” and reviewing the lower court’s
    findings de novo).
    10  See Utah Stream Access Coalition, 
    2019 UT 7
    , ¶¶ 36–37,
    
    439 P.3d 593
     (applying this principle to claims before the district
    court); State v. Johnson, 
    2017 UT 76
    , ¶ 15–16, 
    416 P.3d 443
     (extending
    this principle to claims of error on appeal).
    10
    Cite as: 
    2022 UT 12
    Opinion of the Court
    ¶32 The mother presumably would be foreclosed from
    participating in the proceedings on remand if she had failed to file
    an appeal.11 But the mother did file an appeal. And the father has
    cited no case law that controls in the unusual circumstances
    presented here—where two appellants filed briefs on appeal and one
    of them has identified a legal error that affected not just both of the
    appellants but also the interests of other parties to this proceeding
    (the children).
    ¶33 In these circumstances, we are reluctant to give conclusive,
    controlling effect to the briefing decisions of the parties. The juvenile
    court’s legal missteps infected its decision to terminate both the
    father’s and the mother’s legal rights.12 And those missteps may bear
    significant consequences not just for the parents but for their
    children. The rights and interests of the parents and the children are
    not only substantial but intertwined. On remand, the decision
    whether to terminate one parent’s rights could be affected by the
    decision whether to terminate the other’s rights. And the decision
    whether one or both parents should retain their rights may have
    _____________________________________________________________
    11 See 20 MOORE’S FED. PRAC. CIV. § 304.11(3)(c) (stating that a
    party that “desires to challenge an order or judgment” must file an
    appeal rather than “arguing that it should benefit from the result in
    another party’s appeal”); Federated Dep’t Stores, Inc. v. Moitie,
    
    452 U.S. 394
    , 400–01 (1981) (applying this rule and noting that the
    non-appealing party made a “calculated choice” and is stuck with
    the result of its choice); Collins v. Sandy City Bd. of Adjustment,
    
    2002 UT 77
    , ¶¶ 16–19, 
    52 P.3d 1267
     (endorsing and applying the rule
    in Moitie and concluding that a party that declined to file an appeal
    finds itself in a “predicament” “of [its] own making”).
    12 Overall, the court stated that its “analysis” was “very similar”
    as to both parents. And it extended both of the above-noted legal
    errors to its analysis of the mother’s legal rights: (1) considering the
    mother’s “current ability” as a parent in light of her “past conduct,”
    asserting that she had not “done enough” as of the date of the court’s
    hearing, and concluding that it would be “neglectful” if “the
    children were returned” to her on that date; and (2) holding that the
    children “need permanency without the concern that the parents may
    continue to enter and exit their lives” and warning that “[t]he parents
    may petition for visitation” or the guardians “could seek to
    terminate the guardianship.” (Emphasis added.)
    11
    In re J.L.
    Opinion of the Court
    substantial bearing on the analysis of the best interest of the
    children.13
    ¶34 With these concerns in mind, we conclude that the mother’s
    briefing decisions should not foreclose her from participating in the
    case on remand. Both parents’ legal rights should be on the table.
    ¶35 In remanding, we are not foreclosing the possibility that
    concerns expressed in the juvenile court’s order—such as the risk
    and effects of domestic violence—may be a sufficient basis for
    termination of the parents’ legal rights. Nor are we suggesting that
    the parents have not yet had a “reasonable length of time” to adjust
    their “circumstances, conduct, or conditions.” On these and other
    points, we are simply holding that the juvenile court’s opinion is too
    affected by legal error to merit deference on appeal. And we are
    sending the matter back to the juvenile court to exercise its discretion
    under a correct formulation of the law.
    IV
    ¶36 We vacate the juvenile court’s order terminating the parental
    rights of the parents. In so doing, we leave in place any threshold
    orders not challenged on appeal—such as the court’s order
    establishing the parents’ unfitness. But we remand the case for
    rehearing on the question whether termination of their parental
    rights is strictly necessary in the best interest of the children, under
    the governing legal standard as clarified in this opinion.
    _____________________________________________________________
    13 As the State and the father noted in their supplemental briefs,
    the determination as to one parent may bear on whether it is “strictly
    necessary” to terminate the rights of the other parent. If one parent
    retains his (or her) parental rights, adoption would no longer be an
    option, and it may no longer be “strictly necessary” to terminate the
    other parent’s rights for the best interest of the children.
    12