In re J.M... , 2020 UT App 52 ( 2020 )

2020 UT App 52THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF J.M. AND M.M.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
M.M.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20190673-CA
Filed March 26, 2020
Third District Juvenile Court, Salt Lake Department
The Honorable Julie V. Lund
Nos. 1156280 and 1156281
Thomas A. Luchs, Attorney for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN
FORSTER concurred.
HARRIS, Judge:
¶1 After appellant M.M. (Mother) brought her two young
children (M.M. and J.M., collectively referred to as the Children)
to the hospital because they were having trouble breathing,
M.M.’s urine tested positive for amphetamines, including
methamphetamine. The State’s Division of Child and Family
Services (DCFS) took custody of the Children, and placed them
with foster parents. The juvenile court found the Children
In re J.M.
neglected by Mother, and set a goal of reunification with Mother.
For nearly a year, however, Mother did very little to comply
with the reunification plan, and she was eventually incarcerated
for probation violations related to previous criminal drug
offenses she had committed. At that point, the court terminated
reunification services and changed the primary permanency goal
to adoption. Around the same time, the State filed a petition to
terminate Mother’s parental rights.
¶2 Once she was incarcerated, though, Mother turned over a
new leaf. Without the assistance of DCFS, Mother entered an
inpatient drug treatment program and completed it successfully,
and she eventually fulfilled all of the other requirements that the
juvenile court had originally set for her. But she completed the
inpatient treatment program only about four weeks prior to the
termination hearing, and based on the evidence presented at that
hearing, the court ordered Mother’s parental rights terminated.
Mother now appeals that order. Although each of us may not
have ordered termination were we in the juvenile court’s
position, we cannot conclude that the juvenile court committed
reversible error here, given our standard of review. We therefore
affirm the order of the juvenile court.
BACKGROUND 1
¶3 Mother’s substance use began when she was around
thirteen years old. Initially, Mother was only using marijuana,
but over the course of her teenage years, she progressed to using
methamphetamine. In 2013, at the age of eighteen, Mother gave
birth to her first child, A.M., who was born fetally exposed to
methamphetamine. Thereafter, A.M. was removed from her
1. “We recite the facts in the light most favorable to the juvenile
court findings.” See In re K.J., 2013 UT App 237, ¶ 2 n.2, 327 P.3d
1203.
20190673-CA 2 2020 UT App 52In re J.M.
custody, and her parental rights to A.M. were eventually
terminated. Later, A.M. was adopted by foster parents.
¶4 In July 2016, Mother gave birth to M.M., who was also
born fetally exposed to methamphetamine. In addition, M.M.
was born with a heart defect and has required special medical
care, including a recent surgery. In October 2017, Mother gave
birth to J.M. Paternity to the Children has never been
established.
¶5 On February 23, 2018, Mother noticed that the Children
were both having trouble breathing, so she took them to a local
hospital, where they were diagnosed with respiratory illness and
admitted for treatment. The medical staff conducted a number of
tests on the Children, and those tests initially came back negative
for illegal substances. When further testing was done, however,
it was discovered that methamphetamine was present in M.M.’s
urine. At some point, the hospital apparently received an
anonymous phone call alleging that Mother had used
methamphetamine around the Children. Hospital officials
alerted DCFS to the situation, and DCFS opened an
investigation, eventually taking the Children into custody and
placing them with the same foster parents who had previously
adopted the Children’s half-sibling A.M.
¶6 At an adjudication hearing in April 2018, the juvenile
court found that Mother had neglected the Children, and that
finding is not contested on appeal. The court set reunification as
the primary permanency goal, with a concurrent goal of
adoption. The court ordered DCFS to provide reunification
services to Mother and ordered Mother to comply with a child
and family plan that required her, among other things, to:
submit to a mental health evaluation and complete
recommended treatment; submit to a substance abuse evaluation
and complete recommended treatment; submit to random urine
tests for drugs; maintain stable housing and employment; and
“complete all obligations with criminal court.”
20190673-CA 3 2020 UT App 52In re J.M.
¶7 Between April and December 2018, Mother never failed to
attend a scheduled visit with the Children (except when
incarcerated), and she interacted appropriately with them
during her visits. But Mother substantially failed to comply with
most other aspects of the reunification plan. For example, while
Mother did complete both mental health and substance abuse
evaluations, she did not complete the recommended treatment.
Additionally, Mother missed many of her scheduled drug tests,
and many of the tests she did take came back positive for
marijuana or methamphetamine. At one point in the summer of
2018, Mother began outpatient substance abuse treatment at a
treatment facility (Treatment Facility), but she failed to complete
the program.
¶8 Moreover, Mother did not appropriately address all of her
pending criminal matters. In September 2018, she was ordered to
serve thirty days in jail for probation violations. Even after being
released, Mother continued to test positive for illegal substances,
including methamphetamine. Mother was reincarcerated on
November 29, 2018.
¶9 In light of Mother’s incarceration and her failure to
comply with the terms of the reunification plan, in December
2018 both the State and the guardian ad litem (GAL) asked the
court to terminate reunification services and change the
permanency goal to adoption. After a hearing, the juvenile court
agreed with this request, and made findings that Mother had
been “unsuccessful in completion of her service plan” and that
“return of the [C]hildren would create a substantial risk of
detriment” to their emotional or physical well-being. The court
terminated reunification services and changed the permanency
goal to adoption. A few weeks later, the State filed a petition for
termination of Mother’s parental rights.
¶10 After being incarcerated again in November 2018, Mother
finally started taking meaningful steps to address her issues. She
enrolled in educational programs at the jail, including a GED
20190673-CA 4 2020 UT App 52In re J.M.
class, and obtained her GED in just four weeks, which she
claimed made her “the fastest GED graduate in jail history.” She
began attending substance abuse treatment groups inside the
jail, and in January 2019 she was able to arrange a release from
the jail directly to an inpatient program at Treatment Facility.
Mother resided at Treatment Facility for four months, and she
successfully completed the inpatient program there prior to her
release on May 22, 2019. While at Treatment Facility, all of her
drug tests came back clean. Her programming at Treatment
Facility included not only substance abuse treatment, but also
education in a number of other areas, including mental health
and parenting skills.
¶11 In March 2019, while Mother was at Treatment Facility,
she asked the juvenile court to reinstate reunification services,
asserting that she had made “remarkable progress” in the
program. The court noted that Mother had done “amazingly
well” at Treatment Facility, but denied Mother’s motion for
additional reunification services on the ground that “Mother
does not need services from [DCFS] at this point,” due to the fact
that she was receiving appropriate services at Treatment Facility.
In recognition of Mother’s significant progress, however, the
court “expanded visitation” for Mother with the Children. At
that time, a date had already been set for a trial regarding the
State’s petition to terminate Mother’s parental rights, and the
court kept that date on the calendar.
¶12 The three-day termination trial took place in mid-June
2019, about four weeks after Mother’s release from Treatment
Facility. The State called two expert witnesses—psychologists
who had evaluated Mother and M.M.—and the Children’s foster
mother, as well as a DCFS social worker. The GAL also called, as
a limited expert, another social worker. The psychologist who
evaluated Mother explained that she conducted the evaluation
before Mother had been admitted to the residential program at
Treatment Facility; she discussed Mother’s ongoing struggles
with substance use and described other conditions Mother
20190673-CA 5 2020 UT App 52In re J.M.
sometimes experienced, such as “forgetfulness, disorganization,
impulsivity, [and] restlessness.”
¶13 M.M.’s evaluator testified that, in her opinion, M.M. had
been exposed to a number of traumas, including exposure to
substance use, hospitalization, and removal from Mother’s care,
and stated that children who have been traumatized often
struggle when separated from their caregivers. The expert also
testified that, while M.M.’s ability to regulate her emotions and
control her temper improved during the time she was in her
foster family’s care, her ability to interact smoothly with adults
was negatively impacted by her visits with Mother.
¶14 The foster mother testified that the Children were shy and
timid during visits with Mother, and often returned to the foster
mother for hugs even while Mother was in the room. The foster
mother also testified that, while M.M. was in her family’s care,
M.M. had required heart surgery at the Mayo Clinic in
Minnesota, and the foster family had arranged for this surgery
and accompanied M.M. on the trip to Minnesota. The foster
mother also testified that the Children called her “Mom” and
saw her as their mother, and that they had bonded strongly with
the other children in the household.
¶15 As part of its presentation at trial, the State attempted to
introduce evidence regarding Mother’s history of drug abuse,
including evidence concerning the circumstances that led to the
termination of Mother’s parental rights with regard to A.M., the
Children’s half-sibling. Mother’s attorney objected to the
admission of any evidence that Mother’s parental rights as to
A.M. had been terminated, but the court ultimately overruled
Mother’s objection.
¶16 Mother called five witnesses at trial, in addition to herself:
her therapist, case manager, programming teacher, and
housemate from Treatment Facility; and her probation officer.
Each of these individuals explained the progress they had
20190673-CA 6 2020 UT App 52In re J.M.
witnessed Mother make during and after the time she was at
Treatment Facility, and they specifically described the decline in
her criminal activity, the improvement in her finances, and the
substantial improvements Mother had made toward sobriety.
The case manager, in particular, testified that Mother’s time at
Treatment Facility had brought about a “drastic change” in
Mother, and that she began “consistently working on building
sober supports” and “finding healthy people in her life” while in
the program. The case manager said that Mother had been “a
remarkable participant” in the program because “she was
always very organized, very structured, very determined,” “she
took feedback well, [and] she was very good at working on her
emotional regulation.” Her therapist and case manager both
testified that they had high hopes for her future success. And
Mother’s probation officer testified that Mother had been staying
out of legal trouble, and that, at the time of trial, Mother had not
committed any additional probation violations. The probation
officer added that all of Mother’s drug tests, both during and
after her time at Treatment Facility, had come back clean.
¶17 Mother herself also testified at trial, explaining everything
she had learned through her care at Treatment Facility, the
progress she felt she was making, and how happy it made her to
spend time with the Children during their visits.
¶18 In its closing argument, the State emphasized Mother’s
long history of substance use and her relative lack of experience
with sobriety in the community, noting that, since her early teen
years, Mother’s “longest period of sobriety [has been] seven and
a half months,” and even that was only recently “attained in a
very highly structured setting” in jail and later at Treatment
Facility. The State argued that “Mother has never maintained her
sobriety outside of a structure of jail or treatment.”
¶19 After considering all of the evidence, including Mother’s
past and current conduct, the juvenile court terminated Mother’s
parental rights. In its order, the court found four statutory
20190673-CA 7 2020 UT App 52In re J.M.
grounds for termination. First, the court found that “Mother has
neglected the [C]hildren,” noting specifically Mother’s “habitual
or excessive use of . . . controlled substances.” Next, the court
found that Mother “is unfit or incompetent” to parent the
Children, again noting Mother’s history of substance use. Third,
the court found that Mother “has substantially neglected,
willfully refused, or has been unable or unwilling to remedy the
circumstances that caused the [C]hildren to be in an out-of-home
placement, and there is a substantial likelihood that Mother will
not be capable of exercising proper and effective parental care in
the near future.” Finally, the court found that “Mother has
experienced a failure of parental adjustment in that she has been
unable or unwilling within a reasonable time to substantially
correct the conduct or conditions which led to the [C]hildren’s
placement outside of the home.”
¶20 Next, the court found that “it is in the best interest of the
[C]hildren to have the parental rights of Mother terminated so
that the [C]hildren can be adopted and protected from further
neglect and/or abuse.” On this point, the court specifically took
into account the “safety and well-being of the [C]hildren,” as
well as their “physical, mental or emotional condition and
needs.” The court found that the Children need stability and an
“assurance” that they “will be given care, treatment, and
guidance that will assist them in developing into self-sufficient
adults,” and determined that the Children were currently
receiving that level of care with the foster parents. The court
noted that it had specifically “considered and explored ‘less
permanent arrangements’ such as custody and guardianship
with a family member,” but that “[n]o such kinship is available.”
As part of the best-interest inquiry, the court found it to be
“strictly necessary” that Mother’s parental rights be terminated.
¶21 The court made specific findings about Mother’s
improved behavior following her November incarceration. The
court noted its duty to consider evidence of both current and
past events, and to weigh whether Mother’s current improved
20190673-CA 8 2020 UT App 52In re J.M.
behavior overcame her poor past history. While acknowledging
that Mother’s “progress since she was released from jail to
[Treatment Facility] has been significant,” the court concluded
that “the 6 months that she has been sober and participating in
treatment does not overcome her lengthy history of drug abuse
and neglect beginning in 2014 with . . . [A.M.] and her failure to
respond to DCFS services at that time and for the first 9 months
of this case.”
ISSUES AND STANDARDS OF REVIEW
¶22 Mother now appeals from the juvenile court’s order
terminating her parental rights, and asks us to consider three
issues. First, Mother challenges the court’s determination that
statutory grounds for termination exist in this case. “The
ultimate conclusion that a parent is unfit or that other grounds
for termination have been established is a legal question, but
such decisions rely heavily on the juvenile court’s assessment
and weighing of the facts in any given case.” In re E.A., 2018 UT
App 83, ¶ 2, 424 P.3d 1169 (quotation simplified). Accordingly,
we afford “a high degree of deference” to a juvenile court’s
decision with regard to the existence of statutory grounds, and
overturn it only when the result is “against the clear weight of
the evidence or leave[s] [us] with a firm and definite conviction
that a mistake has been made.” In re B.R., 2007 UT 82, ¶ 12, 171
P.3d 435 (quotation simplified). In sum, “when a foundation for
the [juvenile] court’s decision exists in the evidence, an appellate
court may not engage in a reweighing of the evidence.” Id.¶23 Second, Mother takes issue with the juvenile court’s
decision to admit and consider evidence regarding the previous
termination of her parental rights to A.M., asserting that this
evidence is impermissible “prior act” evidence barred by rule
404(b) of the Utah Rules of Evidence. We review the juvenile
court’s decision to consider this evidence under “a deferential
standard of review” that acknowledges that trial court judges are
20190673-CA 9 2020 UT App 52In re J.M.
“in a better position than we are to assess the avowed basis” for
such evidence, “so the question for us is not whether we would
have admitted this evidence,” but rather whether the court
below “abused [its] broad discretion in doing so.” State v.
Thornton, 2017 UT 9, ¶ 56, 391 P.3d 1016.
¶24 Finally, Mother appeals the court’s determination that
termination of her parental rights was in the best interest of the
Children. We afford a juvenile court’s best-interest decision “a
high degree of deference,” see In re D.V., 2017 UT App 80, ¶ 11,
397 P.3d 853, reversing only for “clear error,” which we find
when “the result is against the clear weight of the evidence or
leaves [us] with a firm and definite conviction that a mistake has
been made,” In re K.J., 2013 UT App 237, ¶ 9, 327 P.3d 1203(quotation simplified).
ANALYSIS
¶25 Utah courts apply a two-part test to determine whether to
terminate parental rights, asking first “whether statutory
grounds for termination are present,” and then “whether
termination of the parent’s rights is in the best interest of the
affected child.” In re B.T.B., 2018 UT App 157, ¶ 4, 436 P.3d 206(quotation simplified), cert. granted, 440 P.3d 692 (Utah 2019).
Courts terminate parental rights only when both of these
elements are met and supported by clear and convincing
evidence. See id. ¶ 13. In this case, the juvenile court found both
parts of the test satisfied, and entered an order terminating
Mother’s parental rights. Mother now challenges both parts of
that order, and in addition complains that the court improperly
considered evidence of her past parental experience with A.M.
A
¶26 Our legislature has authorized courts to terminate
parental rights “if the court finds any one of” several statutory
20190673-CA 10 2020 UT App 52In re J.M.
grounds for termination. Utah Code Ann. § 78A-6-507(1)
(LexisNexis 2018). In this case, the juvenile court made findings
that four of the enumerated statutory grounds were present.
First, it found that Mother “ha[d] neglected” the Children. See id.
§ 78A-6-507(1)(b). Second, it found that Mother is “unfit or
incompetent” to parent the Children. See id. § 78A-6-507(1)(c).
Third, it found that the Children were being cared for in an out-
of-home placement; that Mother had “substantially neglected,
willfully refused, or has been unable or unwilling to remedy the
circumstances” that led to the Children being cared for in an out-
of-home placement; and that “there is a substantial likelihood
that [Mother] will not be capable of exercising proper and
effective parental care in the near future.” See id. § 78A-6-
507(1)(d). Fourth, it found that Mother had experienced a
“failure of parental adjustment.” See id. § 78A-6-507(1)(e).
¶27 In challenging the court’s findings on statutory grounds,
Mother spends the entirety of her energies discussing the
manner in which the juvenile court weighed her past behavior
against her current improved behavior. The interplay between
Mother’s past behavior and her current improved behavior is
certainly relevant to some of the statutory grounds, such as
whether Mother “is unfit,” or perhaps whether there has been a
“failure of parental adjustment.” See id. § 78A-6-507(1)(c), (e). It is
also relevant (as discussed below) to our rule 404(b) inquiry and
to the ultimate question of whether termination of parental
rights is in the best interest of the Children. But it is not, by
definition, relevant to the question of whether Mother “has
neglected” the Children. See id. § 78A-6-507(1)(b).
¶28 “Has neglected” is a past-tense locution; it is by nature
different than language asking a court to examine whether a
parent is currently neglecting a child. We begin any statutory
interpretation inquiry by examining the plain meaning of the
language employed by the legislature. See, e.g., Anadarko
Petroleum Corp. v. Utah State Tax Comm’n, 2015 UT 25, ¶ 11, 345
P.3d 648 (stating that “[w]hen interpreting a statute, we look first
20190673-CA 11 2020 UT App 52In re J.M.
to the plain and ordinary meaning of its terms”). On its face, the
past-tense nature of the language used indicates a legislative
intent that past episodes of neglect, even if they occurred a while
ago and even if the parent has since taken steps to improve her
behavior, are enough to meet the statutory requirements. And
our supreme court has held that the tense used—whether past or
present—in statutory language is important. See Scott v. Scott,
2017 UT 66, ¶¶ 1, 24, 423 P.3d 1275 (stating that “[a] statutory
reading that credits a verb’s tense is not uncommon,” and
determining that “is should mean is and not was or has been”); see
also Carr v. United States, 560 U.S. 438, 448 (2010) (stating that,
“[c]onsistent with normal usage, we have frequently looked to
Congress’ choice of verb tense to ascertain a statute’s temporal
reach”). And this is in keeping with general rules of statutory
interpretation, which require us to “presume that the legislature
used each word advisedly,” see Scott, 2017 UT 66, ¶ 22 (quotation
simplified), and to give meaning to each word used, wherever
possible, see State v. Stewart, 2018 UT 24, ¶ 12, 438 P.3d 515.
¶29 The juvenile court found that Mother neglected the
Children in February 2018 when she exposed M.M. to
methamphetamine. Mother does not challenge this adjudication
on appeal, nor does she contend that her improved behavior
following her November incarceration somehow changed the
facts underlying the previous neglect finding. Because the
legislature—by using the past-tense phrase “has neglected”
instead of a present-tense phrase like “is currently neglecting”—
has mandated a lookback-style inquiry, an adjudicated and un-
appealed past act of neglect by a parent will by definition result
in a judicial determination that the parent “has neglected” the
child. 2 And for the purposes of this inquiry, there is no need—at
2. By contrast, the legislature chose to use present-tense
language when discussing parental fitness. See Utah Code Ann.
§ 78A-6-507(1)(c) (LexisNexis 2018) (stating that one statutory
(continued…)
20190673-CA 12 2020 UT App 52In re J.M.
least not at this stage—to engage in any weighing of a parent’s
past behavior against a parent’s improved current behavior.
Once neglect has occurred, a juvenile court is entirely justified in
making a finding that a parent “has neglected” a child, even if
that parent has improved herself since. 3
(…continued)
ground for termination of parental rights is that “the parent is
unfit” (emphasis added)). Where unfitness (as opposed to
neglect) is the statutory ground at issue, the question presented
is whether the parent, at the time of the termination trial, “is” a
fit parent. Id. As part of this inquiry, a court will need to examine
and weigh a parent’s previous acts that might demonstrate
unfitness against any current acts that might demonstrate
improvement. See In re M.L., 965 P.2d 551, 558, 560–62 (Utah Ct.
App. 1998). The same may be true with regard to whether there
has been a failure of parental adjustment, given statutory
language mandating consideration of a parent’s compliance with
a reunification plan. See Utah Code Ann. § 78A-6-508(5) (Supp.
2019); see also In re M.L., 965 P.2d at 560–62. But with regard to
those two statutory grounds, it is the language of the statute that
mandates a present-tense inquiry; the same cannot be said of the
“neglect” ground.
3. We recognize that, because many child welfare cases arise due
to an act of abuse or neglect on the part of a parent, at least one
statutory ground for termination of parental rights will be
present in many, if not most, child welfare cases. Partly for this
reason, we felt it important in In re B.T.B. to do away with the
“almost automatically” line of cases and to restore the best-
interest prong of the termination of parental rights test to full
strength, in order to give a parent who believes she has—in the
time since the abuse or neglect occurred—improved her
parenting and her bond with her child an opportunity to present
(continued…)
20190673-CA 13 2020 UT App 52In re J.M.
¶30 Mother’s failure to appeal either (a) the juvenile court’s
original neglect adjudication or (b) the court’s later finding that
Mother “has neglected” the Children results in Mother being
unable to carry her burden of persuasion on appeal regarding
statutory grounds for termination. The termination statute itself,
as noted above, plainly states that the presence of “any one”
statutory ground for termination is sufficient. See Utah Code
Ann. § 78A-6-507(1). Interpreting that statute, we have held that
the presence of a single statutory ground is sufficient to fulfill
the first element of the termination test. See In re A.J., 2017 UT
App 235, ¶ 26, 414 P.3d 541 (stating that “so long as sufficient
evidence existed to support at least one of the grounds found by
the court, the termination of [a parent’s] parental rights [is]
appropriate”); In re S.M., 2017 UT App 108, ¶ 4, 400 P.3d 1201(per curiam) (explaining that “the finding of a single [statutory]
ground will support termination of parental rights”); In re H.H.,
2011 UT App 60, ¶ 2, 249 P.3d 582 (per curiam) (explaining that a
juvenile court may terminate a parent’s rights “if the court finds
any one of the grounds enumerated” in the statute (quotation
simplified)). And “we will not reverse a ruling of [a lower] court
that rests on independent alternative grounds where the
appellant challenges [less than all] of those grounds.” See Kendall
v. Olsen, 2017 UT 38, ¶ 12, 424 P.3d 12 (quotation simplified).
¶31 Accordingly, we reject Mother’s contention that none of
the statutory grounds for termination is present here.
B
¶32 Next, Mother argues that the juvenile court should not
have admitted and considered evidence regarding the
(…continued)
evidence, at the best-interest stage, of her improved situation. See
In re B.T.B., 2018 UT App 157, ¶ 23 n.6, 436 P.3d 206, cert. granted,
440 P.3d 692 (Utah 2019).
20190673-CA 14 2020 UT App 52In re J.M.
termination of her parental rights to A.M. Mother maintains that
the admission of this evidence violated rule 404(b) of the Utah
Rules of Evidence, but because that rule does not apply in this
instance, we reject Mother’s argument.
¶33 Rule 404(b)(1) prohibits the admission of evidence
relating to a crime, wrong, or other act “to prove a person’s
character in order to show that on a particular occasion the person
acted in conformity with the character.” Utah R. Evid. 404(b)(1)
(emphasis added). Typically, this rule functions to prevent the
admission of past acts as evidence of a person’s propensity
to act, on a particular occasion, in conformity with a character
trait.
¶34 But in this case, as the GAL correctly notes, the evidence
in question “was not admitted to prove Mother’s actions ‘on a
particular occasion’ but to prove her general incompetency and
unfitness over a period of time.” Indeed, the evidence was
admitted to help the court assess a number of inquiries that were
not necessarily connected to any single occasion, including
whether Mother was currently fit to parent the Children
and whether termination of parental rights would be in
the Children’s best interest. 4 In these sorts of inquiries,
consideration of a parent’s past actions is not only allowed, but
encouraged, both by the Juvenile Court Act and by case law
interpreting it.
4. We acknowledge that rule 404(b) could potentially be relevant
in juvenile court child welfare cases, depending on how the
evidence is used. A different admissibility question would be
presented if, for instance, a juvenile court were asked to
adjudicate whether a parent committed an act of abuse on a
particular occasion and, in an attempt to prove that the parent
committed the act in question, the State wished to present
evidence that the parent committed a past act of abuse on a
different victim on a different occasion.
20190673-CA 15 2020 UT App 52In re J.M.
¶35 In parental termination cases in which a parent’s fitness
is at issue, our legislature requires courts to consider a
parent’s “habitual or excessive use of intoxicating liquors,
controlled substances, or dangerous drugs,” as well as a
parent’s “history of violent behavior.” Utah Code Ann. § 78A-6-
508(2)(c), (f) (Supp. 2019). And when parental fitness is at issue,
we have often affirmed a juvenile court’s consideration of
evidence of a parent’s past acts, including past drug use and
past abuse of siblings. See, e.g., In re R.B., 2012 UT App 37, ¶ 4,
271 P.3d 827 (stating that “a parent’s habitual substance
abuse and repeated or continuous failure to appropriately care
for and provide for the needs of her children” may be indicative
of a parent’s unfitness (quotation simplified)); In re J.S.P., 2010
UT App 10U, para. 6 (per curiam) (affirming a termination order
based, in part, on the parent’s previous abuse of the child’s
sibling); In re J.B., 2002 UT App 267, ¶ 24, 53 P.3d 958 (affirming
a termination order based, in part, on previously adjudicated
facts involving the child’s siblings); In re E.K., 913 P.2d 771,
776 (Utah Ct. App. 1996) (affirming a juvenile court’s exercise
of jurisdiction over a younger sibling in part because of a
recent adjudication of serious abuse of other children). In this
case, this evidence was also considered in connection with
the best-interest part of the termination test, and that is a
wide-ranging inquiry that asks a court to weigh the entirety
of the circumstances, including a parent’s past behavior, to
determine what is in the best interest of the child under
all of the circumstances. See In re B.T.B., 2018 UT App 157, ¶ 47–
50.
¶36 Mother has not demonstrated that rule 404(b) operates
to keep a juvenile court from considering a parent’s past acts
in connection with a fitness or a best-interest inquiry.
Therefore, in this case, the court’s consideration of the
circumstances involving Mother’s loss of rights to A.M. was
entirely appropriate, and we reject Mother’s argument to the
contrary.
20190673-CA 16 2020 UT App 52In re J.M.
C
¶37 Finally, Mother takes issue with the juvenile court’s
conclusion that termination of her parental rights was in the best
interest of the Children. Once a court finds a statutory ground
for termination, it must next address the second part of the test
by determining whether severing a parent’s rights is in the best
interest of the child. “The best interest of the child has always
been a paramount or polar star principle in cases involving
termination of parental rights.” In re J.P., 648 P.2d 1364, 1368
(Utah 1982) (quotation simplified). And, as noted above,
determining a child’s best interest requires a court to undergo a
comprehensive review of the unique and specific conditions a
child faces in any given case. See In re B.T.B., 2018 UT App 157,
¶ 47–50. Accordingly, the juvenile court’s inquiry into a child’s
best interest is necessarily quite “broad, and is intended as a
holistic examination of all of the relevant circumstances that
might affect a child’s situation,” and includes an analysis of “the
physical, intellectual, social, moral, and educational training and
general welfare and happiness of the child.” Id. ¶ 47 (quotation
simplified). The breadth of this “subjective assessment based on
the totality of the circumstances surrounding the child” has
“never been diminished” and remains a “paramount
consideration in cases involving termination of parental rights.”
Id. (quotation simplified).
¶38 The juvenile court heard evidence in this case that cut
both ways on the best-interest question. On the one hand, the
court heard evidence that Mother, chiefly through her
uncontrolled substance use, had endangered her children on
previous occasions. Two of her three children had been exposed
to methamphetamine while in utero. She continued to use
methamphetamine after the birth of the Children, which led to
the February 2018 episode in which methamphetamine was
found in M.M.’s urine. Even after that episode, which resulted in
the Children being taken from her, Mother did very little over
the next nine months to comply with the plan that the juvenile
20190673-CA 17 2020 UT App 52In re J.M.
court set out that would enable her to be reunited with the
Children. Mother continued to use methamphetamine, failed to
seek and complete drug treatment, and committed multiple
violations of her criminal probation. The court also considered
evidence that the Children were happy and well-adjusted with
the foster parents, who are ready and willing to adopt them, a
placement that would unify them with their half-sibling A.M.
¶39 On the other hand, the juvenile court heard evidence that
Mother’s November 2018 incarceration functioned as a real
wake-up call for her. Between November 2018 and the time of
trial in June 2019, Mother’s behavior was nothing short of
exemplary. With the able assistance of personnel both at the jail
and at Treatment Facility, Mother was not only able to complete
an inpatient substance use treatment program, but was also able
to get a GED, obtain new parenting skills, and continue building
her bond with the Children. Indeed, the evidence presented was
that, after the court terminated reunification services in
December 2018, Mother completed each and every item in her
child and family plan, without the benefit of any services from
DCFS. At trial, some of the counselors who worked with Mother
at Treatment Facility testified that Mother had been very
successful in their program, that she had learned a lot of the
skills necessary to succeed after returning to the community, and
that they had high hopes for her success.
¶40 Presented with evidence like this, the juvenile court could
have reasonably gone either way on the best-interest question.
Indeed, after In re B.T.B., it no longer follows “almost
automatically” from a finding of statutory grounds that it is in
the best interest of the child to terminate a parent’s rights. See In
re B.T.B., 2018 UT App 157, ¶ 44. Even though a statutory
ground for termination (neglect) is present here, the juvenile
court could potentially have determined that the best interest
evidence militated in the other direction, and could have
therefore declined to terminate parental rights. Given Mother’s
significant progress following her incarceration, there exists
20190673-CA 18 2020 UT App 52In re J.M.
sufficient evidence in this record to support such a
determination, or at least a determination that Mother’s
termination trial should have been postponed for a few months
to give Mother a longer post-treatment probationary period.
¶41 But the juvenile court decided to terminate, concluding
that it was in the Children’s best interest to terminate Mother’s
rights. The court made extensive findings supporting its
conclusion, and was ultimately swayed by several factors,
including Mother’s lengthy past history of substance use and
relatively short (four-week) history of sobriety outside the
context of an inpatient treatment facility, and the positive
experience the Children were having with the same foster
parents who had previously adopted A.M. The court
emphasized the need for the Children to find stability and
permanence, and ultimately found that those goals were best
furthered through termination and adoption.
¶42 Each of us might not have reached the same decision that
the juvenile court reached, had we been in the juvenile court’s
position. But that does not make the court’s decision reversible.
Our court has recognized that “the juvenile court is in the best
position to weigh conflicting testimony, to assess witness
credibility, and from such determinations, to render findings of
fact” and, therefore, “an appellate court should not substitute its
own judgment for that of the juvenile court’s judgment in
matters relating to termination proceedings.” In re B.O., 2011 UT
App 215, ¶ 2, 262 P.3d 46 (per curiam). In reviewing cases like
this one, we “must be capable of discriminating between
discomfort over a trial court’s findings of fact—which [an
appellate court] must tolerate—and those [situations] that
require a court’s intercession.” See In re B.R., 2007 UT 82, ¶ 12,
171 P.3d 435 (quotation simplified). And the standard of review
we apply in these cases is so deferential that we must “forebear
disturbing the close call,” even if we may view the facts in a
different light. Id. (quotation simplified); see also id. ¶ 14 (“Simply
because an appellate court may have come to a different result
20190673-CA 19 2020 UT App 52In re J.M.
had it been the initial trier of fact does not permit it to reverse
the juvenile court absent a firm and definite conviction that the
court’s decision was against the clear weight of the evidence.”);
Gunn Hill Dairy Props., LLC v. Los Angeles Dep’t of Water & Power,
2015 UT App 261, ¶ 21, 361 P.3d 703 (Orme, J., concurring)
(stating that “standards of review really do matter,” and noting
that two of the judges on the panel were “affirming the trial
court’s decision—not because [they thought] it was the right
decision but because of [the] deferential standard of review”).
¶43 The juvenile court’s best-interest decision was supported
by competent findings and by record evidence. Accordingly, we
defer to the juvenile court’s ultimate determination. See In re
C.T., 2018 UT App 233, ¶ 11, 438 P.3d 100.
CONCLUSION
¶44 Statutory grounds existed to support a termination order,
given the juvenile court’s unchallenged adjudication of neglect.
The juvenile court properly considered Mother’s history with
A.M. in assessing Mother’s fitness as a parent and in evaluating
the best interest of the Children. While the best-interest inquiry
appears to have been a close call, the juvenile court’s finding is
supported by evidence and articulated findings, and is therefore
not subject to reversal under applicable standards of review. We
therefore affirm the juvenile court’s termination order.
20190673-CA 20 2020 UT App 52