In re H.F. , 2019 UT App 204 ( 2019 )

2019 UT App 204THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF H.F.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.
J.F.,
Appellant,
v.
E.F.,
Appellee.
Opinion
No. 20180348-CA
Filed December 12, 2019
Third District Juvenile Court, Salt Lake Department
The Honorable Julie V. Lund
No. 1100472
Scott L. Wiggins and Lisa Lokken, Attorneys
for Appellant
Joshua P. Eldredge, Attorney for Appellee
Martha Pierce, Guardian ad Litem
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 J.F. (Mother) appeals from the juvenile court’s termination
of her parental rights to H.F. (Child). We reverse and remand for
further proceedings.
BACKGROUND
¶2 Child was born in December 2012. Soon after Child’s
birth, Mother discovered that her husband, E.F. (Father), had
In re H.F.
been using drugs. Suffering from postpartum depression,
Mother also began using drugs with Father as a means of self-
medicating.
¶3 In March 2014, the Division of Child and Family Services
(DCFS) removed Child from Mother and Father’s home as a
result of their drug use. Upon removal, DCFS placed Child with
Mother’s parents (Grandparents). During this time,
Grandparents facilitated visitation between Child and Father, as
well as Father’s extended family.
¶4 Soon after Child was removed from the parents’ home,
Mother began a relationship with “a really bad guy.” She left
Utah with him, and they began committing crimes together.
Eventually, the pair were arrested, convicted of multiple crimes,
and incarcerated.
¶5 Conversely, Father began participating in drug treatment
in June 2014. After completing treatment, he became involved in
various peer support groups to help others with drug addiction
and even obtained a full-time job as a peer recovery coach for a
nonprofit addiction-recovery agency. In March 2015, Father filed
for divorce from Mother and was granted a default divorce
awarding him full legal and physical custody of Child. In May
2015, upon the State’s motion, the juvenile court terminated its
jurisdiction and DCFS involvement. After Father regained
custody of Child, Grandparents continued to provide regular
daycare for Child.
¶6 In July 2016, Father moved the juvenile court to terminate
Mother’s parental rights. Father was engaged to be married, and
his fiancée (Fiancée) wanted to adopt Child, but they had not yet
set a wedding date and were not yet living together.1
1. Utah law requires a prospective adoptive stepparent to be
married to the child’s custodial parent and to have lived with the
custodial parent and the stepchild for at least one year prior to
(continued…)
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Grandparents “had a heated conversation with” Father about his
termination petition, and subsequently, he put Child in full-time
daycare and did not permit Grandparents to see Child as often.
¶7 At Mother’s termination trial in December 2017, her
former criminal attorney expressed his belief that Mother’s
criminal actions had been “very much influenced by” her co-
defendant but that she “was a model defendant”; continually
showed concern for her family and a desire to take care of her
children; 2 had come to understand, through participation in
counseling, her responsibilities and the detrimental effects of her
co-dependent relationship with her co-defendant; and ultimately
told the truth about the criminal incidents even though her co-
defendant was damaged by her admissions. Mother was still
incarcerated at the time of the termination trial but was due to be
released in April 2019. She had been participating in a voluntary
drug-treatment program. She testified that prior to Child’s
removal, she was his “sole care provider.” She testified that she
has a bond with Child, that she has had regular telephone and
video calls with him since losing custody and sends him letters,
that Child had expressed his desire to be reunited with Mother,
and that she wants to have “visitation as much as possible” and
to “be in [Child’s] life as much as [she] can.” She testified that
she regrets her past decisions and their effect on her children,
but she also could not rule out the possibility of a relationship
with her co-defendant when he is released from prison in eight
or nine years.
(…continued)
entry of the final decree of adoption. Utah Code Ann. § 78B-6-
117(2)(a) (LexisNexis Supp. 2019); id. § 78B-6-136.5(2)(a) (2018).
Thus, as of the termination trial, Fiancée was at least one year
away from being able to adopt Child.
2. Mother has another child who was not included in the
termination proceedings.
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¶8 Father testified that he was willing to support a
continuing relationship between Child and Mother following
termination of her rights so long as it was “safe” for Child.
Although Father did not discourage Child’s contact with
Mother, he did not directly facilitate Mother and Child’s contact;
rather, this contact took place when Child visited Grandparents.
Both Father and Fiancée testified that Child has a very good
relationship with Fiancée, that she treats him like her own child,
and that Child sees her as his mom. Father testified that he
believed Child’s relationship with Mother’s family was
“beneficial.” He claimed that Child’s relationship with Mother’s
family would not change if Mother’s rights were terminated. He
admitted that he “could make a better effort in . . .
communicating to set” up time between Child and Mother’s
extended family but explained that he had felt a need to set
“boundaries” because the termination petition had “put a strain”
on his relationship with Mother’s family.
¶9 Grandparents expressed fear that termination would
“have a very negative impact on [their] relationship with
[Child]” and that Father “would move on” and “find a way to
take [Child] away from” Grandparents. Mother’s brother, who
also had a close relationship with Father, expressed his belief
that Father had become uninterested in Mother’s side of the
family and that Father would not let Mother’s family see Child
anymore if Mother’s rights were terminated. Another of
Mother’s brothers likewise testified that the family’s contact with
Child had been less frequent during the preceding year and that
he believed Father would cut off contact between Child and
Mother’s family if the court terminated Mother’s rights.
¶10 Following trial, the juvenile court found two grounds for
termination: (1) that Mother was an unfit parent because she was
unable to care for Child as a result of her incarceration and (2)
that she had neglected child through her habitual and excessive
use of controlled substances. See Utah Code Ann. § 78A-6-
507(1)(b), (c) (LexisNexis 2018); id. § 78A-6-508(2)(c), (e) (Supp.
20180348-CA 4 2019 UT App 204In re H.F.
2019). The court further found that termination was in Child’s
best interest.
¶11 In reaching its conclusion regarding Child’s best interest,
the juvenile court limited its analysis to three factors—Child’s
“bond with his caregivers,” his “need for permanence and
stability,” and “the potential risk of harm if returned to
[Mother’s] care.” The court found that there was not an intact
parental relationship between Mother and Child because she
had not acted as his caregiver for an extended period of time. It
observed that although Child recognizes that Mother is his mom,
he has developed a mother–child bond with Fiancée as well. The
court also found that Fiancée intended “to adopt [Child] should
he be legally free.” The court concluded that “[t]hese facts
support the need for permanence and stability and that [Child]
does have a bond with his caregivers.” The court further found
that there was “a potential risk of harm to” Child from Mother
because she could not rule out the possibility of a future
relationship with her co-defendant, who had been described as a
“really bad guy.” Finally, the court found that termination of
Mother’s rights was “strictly necessary for [Child] to achieve
permanency and stability.” Based on these findings, the court
determined that it was in Child’s best interest that Mother’s
parental rights be terminated. Mother now appeals.
ISSUE AND STANDARD OF REVIEW
¶12 Mother argues that the juvenile court exceeded its
discretion in terminating her parental rights. “The ultimate
decision about whether to terminate a parent’s rights presents a
mixed question of law and fact.” In re B.T.B., 2018 UT App 157,
¶ 8, 436 P.3d 206 (quotation simplified), cert. granted, 440 P.3d
692 (Utah 2019). We review the court’s factual findings for clear
error and its legal conclusions for correctness, “affording the
court some discretion in applying the law to the facts.” Id.(quotation simplified). Nevertheless, “the proper interpretation
and application of a statute is a question of law which we review
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for correctness.” In re A.M., 2009 UT App 118, ¶ 6, 208 P.3d 1058(quotation simplified).
ANALYSIS
¶13 In assessing whether termination of parental rights is
appropriate, a court must employ a “two-part test.” In re B.T.B.,
2018 UT App 157, ¶ 13, 436 P.3d 206, cert. granted, 440 P.3d 692(Utah 2019). “First, a trial court must find that one or more of the
statutory grounds for termination are present,” and second, “a
trial court must find that termination of the parent’s rights is in
the best interests of the child.” Id. (quotation simplified). Mother
does not contest the juvenile court’s determination that grounds
existed to support termination, but she maintains that
termination was not in Child’s best interest and that the court
did not adequately consider all factors relevant to that
determination.
¶14 “The ‘best interest’ test is broad, and is intended as a
holistic examination of all the relevant circumstances that might
affect a child’s situation.” Id. ¶ 47; see also In re G.J.C, 2016 UT
App 147, ¶ 24, 379 P.3d 58 (“Determining a child’s best interest
in termination of parental rights proceedings is a subjective
assessment based on the totality of the circumstances.”). Utah
courts have identified numerous factors that may be relevant to
this determination. For example, a court may consider “the
physical, mental, or emotional condition and needs of the child”;
“the effort the parent has made to adjust their circumstances,
conduct, or conditions to make restoring the parent–child
relationship in the child’s best interest”; “the child’s bond with
caregivers”; the child’s “need for permanency and stability”; and
“the potential risk of harm if returned to the parents’ care.” See
In re G.J.C., 2016 UT App 147, ¶ 24 (quotation simplified). It may
consider the parent’s “demeanor,” “attitude toward his or her
child,” and “attitude in fulfilling parental obligations,” see In re
T.E., 2011 UT 51, ¶ 44, 266 P.3d 739, and it may weigh the
benefits of the child continuing a relationship with an unfit
20180348-CA 6 2019 UT App 204In re H.F.
parent even where reunification is not an option, examine the
child’s prospects for adoption, and even consider the child’s
preferences in some circumstances, In re D.R.A., 2011 UT App
397, ¶¶ 19, 21, 266 P.3d 844; see also In re B.T.B., 2018 UT App
157, ¶ 56. Moreover, as part of the best interest analysis, Utah
law requires courts to “analyze whether termination of a child’s
parent’s rights is ‘strictly necessary,’” that is, the court must
“explore whether other feasible options exist that could address
the specific problems or issues facing the family, short of
imposing the ultimate remedy of terminating the parent’s
rights.” In re B.T.B., 2018 UT App 157, ¶¶ 50, 55; see also Utah
Code Ann. § 78A-6-507(1) (LexisNexis 2018) (“Subject to the
protections and requirements of Section 78A-6-503, and if the
court finds strictly necessary, the court may terminate all parental
rights with respect to a parent if the court finds any one of the
following [statutory factors] . . . .” (emphasis added)).
¶15 In conducting its best interest analysis, the juvenile court
did not take the holistic approach that has been prescribed by
this court. Rather than examining the totality of all
circumstances affecting Child’s best interest, the court
erroneously interpreted In re G.J.C., 2016 UT App 147, 379 P.3d
58, as articulating a best interest test composed of only three
specific factors: (1) “bond with caregivers,” (2) “need for
permanence and stability,” and (3) “the potential risk of harm if
returned to the parent’s care.” See id. ¶ 24. Further, the court’s
finding that termination was “strictly necessary” was conclusory
and did not include an examination of feasible alternatives to
termination, as required by In re B.T.B., 2018 UT App 157, 436
P.3d 206. 3
3. Father argues that the juvenile court was not required to
engage in the “strictly necessary” analysis prescribed by In re
B.T.B. because that case was decided after the court issued its
oral ruling in this case. However, Father makes no effort to
explain why we should not apply this analysis. The “strictly
(continued…)
20180348-CA 7 2019 UT App 204In re H.F.
¶16 The court’s reliance on only the three specific factors
gleaned from In re G.J.C. unduly narrowed the “broad,”
“holistic” best interest test, see In re B.T.B., 2018 UT App 157,
¶ 47, and its order did not accurately represent the direction
given by this court in In re G.J.C. 4 The three factors identified in
In re G.J.C. were not given as a definitive list of factors; rather the
court stated that those three factors were “proper” factors to
consider “in the context of a best-interest determination.” 2016
UT App 147, ¶ 24. Indeed, the court explicitly instructed that a
best interest determination must be “based on the totality of the
circumstances.” Id. This court reaffirmed and elaborated on this
“holistic” approach in In re B.T.B., when it instructed “courts to
examine all of the relevant facts and circumstances surrounding
(…continued)
necessary” language has been part of the statute since 2012, Act
of March 7, 2012, ch. 281, § 6, 2012 Utah Laws 1331, 1334; In re
B.T.B. merely interpreted that statutory language. And upon
interpreting the language, the In re B.T.B. court sent that case
back to the trial court for reconsideration: “Because we clarify
and partially reformulate the test for termination of parental
rights, we remand this case to the juvenile court for
reconsideration in light of this opinion.” 2018 UT App 157, ¶ 2,
436 P.3d 206, cert. granted, 440 P.3d 692 (Utah 2019). Father also
fails to acknowledge that the juvenile court’s final written order
was actually signed one month after In re B.T.B. was issued. We
therefore reject Father’s assertion that the court’s failure to
engage in a more thorough “strictly necessary” analysis should
be ignored on appeal.
4. In re G.J.C. has limited utility in any event because it employed
the now-disavowed principle that “where grounds for
termination are established, the conclusion that termination will
be in a child’s best interest follows almost automatically.” 2016
UT App 147, ¶ 25, 379 P.3d 58 (quotation simplified); see also In re
B.T.B., 2018 UT App 157, ¶¶ 22–44 (disavowing the “almost
automatically” line of cases).
20180348-CA 8 2019 UT App 204In re H.F.
the child’s situation” and, in particular, “to explore whether
other feasible options exist that could address the specific
problems or issues facing the family, short of imposing the
ultimate remedy of terminating the parent’s rights,” in order to
satisfy the legislature’s requirement that termination be limited
to circumstances where it is “strictly necessary.” 2018 UT App
157, ¶¶ 47, 54–55.
¶17 Because of the court’s narrow focus on only three factors
pertaining to the best interest analysis, its findings do not reveal
whether the court considered a number of additional factors
relevant to determining if termination of Mother’s rights was in
Child’s best interest, including the fact that Child’s prospects for
adoption by Fiancée were speculative, Child’s bond with Mother
and any benefits of him continuing a relationship with Mother,
and the effect of termination on Child’s relationship with his
extended family, including his half-sister. 5 Further, while the
court’s analysis emphasized Child’s need for stability, it is
unclear how terminating Mother’s parental rights would achieve
that goal. Child was not in DCFS custody or a short-term
placement with a foster family with an unsettled future. Rather,
Father had permanent sole legal and physical custody of Child.
Child would continue to be raised primarily by Father and
Fiancée, regardless of whether Mother’s parental rights were
terminated. And while termination would free Child for
adoption by Fiancée, Fiancée was not in an immediate position
5. Our analysis should not be construed as prohibiting courts
from focusing on those factors that it finds to be most probative
in a particular case; not every factor will be relevant in every
case, and even where evidence of a particular factor is present, a
court may reasonably discount the factor and decline to discuss
it in detail in its findings. The court’s ruling in this case is
problematic not because it focused on limited relevant factors
but because it misconstrued the best interest test as being limited
to those factors and because it did not examine the feasibility of
less-drastic alternatives to termination.
20180348-CA 9 2019 UT App 204In re H.F.
to adopt Child, and it was not certain that she would ever be in
such a position, as she and Father were not actually married.
Even the danger anticipated by the juvenile court if Mother
eventually resumed her relationship with her co-defendant was
mostly speculative, as the co-defendant would not be released
from prison for many years. See In re D.R.A., 2011 UT App 397,
¶ 21 (determining that the State had failed to establish that
termination was in a child’s best interest in part because “the
benefits of severing” the parent–child relationship were “too
speculative”). Finally, the court’s determination that termination
was strictly necessary was not supported by an appropriate
exploration of feasible alternatives to termination. See In re
B.T.B., 2018 UT App 157, ¶ 55. Therefore, the juvenile court’s
findings do not support its determination that termination was
in Child’s best interest.
CONCLUSION
¶18 Because the juvenile court did not employ the correct
holistic analysis in assessing whether termination of Mother’s
parental rights was in Child’s best interest and its findings do
not support such a determination, we vacate the court’s order
terminating Mother’s parental rights and remand for further
proceedings consistent with this opinion. 6
6. Our decision should not be read as dictating any particular
result on remand. Indeed, any number of circumstances may
have changed since trial, and the court should take such changes
into account in reconsidering its decision. On remand, the court
should expand its analysis of best interest to consider the totality
of the circumstances, examine the feasibility of alternatives to
termination, supplement its findings, and assess whether
termination is in Child’s best interest in light of any such
supplemental findings.
20180348-CA 10 2019 UT App 204