In re G.D... , 2021 UT 19 ( 2021 )

2021 UT 19IN THE
SUPREME COURT OF THE STATE OF UTAH
IN THE INTEREST OF G.D. AND M.D., PERSONS UNDER EIGHTEEN YEARS
OF AGE
R.D. and C.W.,
Appellants,
v.
STATE OF UTAH,
Appellee.
No. 20190946-SC
Heard October 13, 2020
Filed June 10, 2021
On Certification from the Court of Appeals
Fourth District Juvenile Court, Provo
The Honorable Brent H. Bartholomew
Nos. 1118780, 1168968
Attorneys:
Neil Skousen, Orem, Sara Pfrommer, Bountiful, for R.D., appellant
Margaret P. Lindsay, Barbara A. Gonzales, Provo, for C.W.,
appellant
Sean Reyes, Att‘y Gen., Carol L.C. Verdoia, John M. Peterson, Asst.
Att‘ys Gen., Salt Lake City, for State of Utah, appellee
Martha Pierce, Salt Lake City, Guardian ad Litem for G.D. and M.D.,
appellees
CHIEF JUSTICE DURRANT authored the opinion of the Court, in
which ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS, JUSTICE
PEARCE, AND JUSTICE PETERSEN joined.
CHIEF JUSTICE DURRANT, opinion of the Court:
IN RE G.D. AND M.D.
Opinion of the Court
Introduction
¶1 The juvenile court terminated a mother and father‘s parental
rights based on years of dysfunctionality, substance abuse, and
criminal conduct. They challenge this determination on appeal,
raising three issues in their individual briefs.1 First, they argue the
juvenile court erred in declining to apply the ―beyond a reasonable
doubt‖ standard of proof. Second, they argue the standard of review
for termination cases we used in State ex rel. B.R. is too deferential.2
And third, they argue the juvenile court erred by concluding that
termination was strictly necessary and in the children‘s best
interests. We address each argument in turn.
¶2 First, we affirm the juvenile court‘s decision not to apply the
―beyond a reasonable doubt‖ standard of proof. Although the U.S.
Supreme Court has opened the door for states to adopt an
evidentiary standard higher than ―clear and convincing‖ for
termination proceedings, both this court and the Utah legislature
have not, contrary to what Parents argue, adopted the ―beyond a
reasonable doubt‖ standard. And we decline to adopt that standard
now.
¶3 Second, we disagree that the standard of review we used in
State ex rel. B.R. is too deferential. Contrary to what Father argues,
we do not read our decision in State ex rel. B.R. as creating a unique
standard of review for juvenile courts. Rather, the standard in State
ex rel. B.R. echoes the standard of deference used in other cases: that
appellate courts defer to trial courts‘ findings of fact. So by treating
State ex rel. B.R.‘s standard as unique, Father overlooks the well-
established principle that appellate courts are not generally in a
position to second-guess the factual determinations of trial courts.
¶4 Finally, we reject Parents‘ argument that the district court
erred in concluding that termination was strictly necessary and in
the best interests of the children. After reviewing the record, we
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1 Notably absent from the briefs is any argument that the court
erred in concluding Parents were unfit. This is likely because Parents
both conceded their unfitness when they admitted to neglecting G.D.
and M.D. See UTAH CODE § 78A-6-507(1)(b) (―[T]he court may
terminate all parental rights with respect to the parent if the court
finds . . . that the parent has neglected . . . the child.‖).
2 2007 UT 82, 171 P.3d 435.
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conclude that, in reaching its conclusion, the court gave full and
careful consideration to all the evidence presented.
Background
¶5 This case concerns two of Parents‘ children: G.D. and M.D.
At the time of the juvenile court‘s decision, G.D. was five years old
and M.D. was one year old. Parents have struggled with substance
abuse and mental illness for several years. This case is the
culmination of that struggle and the State‘s efforts, through juvenile
courts and the Division of Child and Family Services (DCFS), to
protect G.D. and M.D.
¶6 Over the last five years, G.D. has been removed from
Parents‘ home three times. In each of these instances, DCFS filed
petitions for custody of G.D. based on a combination of parental
neglect, substance abuse, mental illness, criminal conduct, and
parenting deficits. During G.D.‘s third removal from the home, M.D.
was also removed for the first time.
¶7 Shortly before both children were removed from their home,
a woman contacted the police in the middle of the day, alleging that
she was caring for the children because Father had overdosed. After
finding Father unconscious, the police questioned him about his
drug use. Father confessed to using methamphetamine and opiates,
and the police found drug paraphernalia in the home. Father also
admitted to DCFS that he used methamphetamine on two occasions
and used heroin to fall asleep on one occasion. But he claimed that
Mother was not aware of his drug use—a claim that was
contradicted by the fact that Mother had previously contacted DCFS
to report concerns about Father‘s drug use.
¶8 Because DCFS became concerned about Father‘s drug use,
Father voluntarily assigned temporary custody of G.D. to the
children‘s grandmother. DCFS made a safety plan with Parents,
according to which G.D. would not be left alone with Father, Parents
would both submit to drug testing, M.D. would remain at home,3
and G.D. would remain with Grandmother. But shortly thereafter,
Father again tested positive for morphine and methamphetamine,
and Mother did not submit to drug testing.
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3The record does not state this as an explicit component of
DCFS‘s safety plan, but it does imply that M.D. was at home until
DCFS took her into protective custody when Parents failed to
cooperate with the safety plan.
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IN RE G.D. AND M.D.
Opinion of the Court
¶9 In light of Parents‘ failures to follow DCFS‘s safety plan,
DCFS filed a petition for custody of G.D. and M.D. DCFS took M.D.
into its custody and completed a safety assessment, concluding both
children were unsafe.4 At a shelter hearing pursuant to DCFS‘s
petition, the juvenile court placed G.D. in the temporary custody and
guardianship of Grandmother but kept M.D. in the protective
custody of DCFS pending a continued shelter hearing.
¶10 At the continued shelter hearing, the court found there was
a substantial risk the children would suffer abuse or neglect if it did
not remove them from Parents‘ custody because Parents had both
tested positive for methamphetamine. Accordingly, the court placed
both children in DCFS‘s temporary custody and guardianship.
¶11 With future custody hearings pending, Parents‘ troubles
with substance abuse and law enforcement continued. In the evening
after the continued shelter hearing, police found Father under the
influence of opiates and arrested him. Father was also subject to
pending charges for driving with a measurable controlled substance
and on a suspended license. Meanwhile, Mother submitted to drug
testing, testing positive for methamphetamines.
¶12 Over the course of their dealings with DCFS during this
time, Parents repeatedly concealed one another‘s drug use from
DCFS, prioritizing hiding their drug use over the children‘s interests.
Between the continued shelter hearing and a disposition hearing
held about two months later, Mother was found guilty of driving on
a suspended or revoked license, Father was convicted of driving
under the influence, and Mother and Father were evicted from their
home.
¶13 Because DCFS and Parents failed to resolve the problems
identified in DCFS‘s petition for custody through mediation, the
juvenile court scheduled a preliminary hearing on Parents‘ fitness.
At this hearing, Father admitted to neglecting G.D. The court also
heard evidence about Father‘s criminal history5 and evidence
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4 The court noted that there were errors in the safety assessment
but concluded that, had DCFS done the assessment correctly, the
assessment would have resulted in an even stronger indication that
the children were unsafe.
5 At the time of the trial, Father‘s criminal history included the
following: joyriding; seven instances of possession of drug
paraphernalia; attempted unlawful acquisition, possession, or
(Continued)
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suggesting that he was likely to remove the children from
Grandmother‘s guardianship at any time.
¶14 The court also heard evidence regarding Mother‘s unfitness,
evidence that Mother had admitted to neglecting both children, and
evidence about Mother‘s criminal history.6 The court noted that, in a
previous proceeding regarding G.D., Mother lost the presumption 7
that custody with her was in G.D.‘s best interests.
¶15 The court held the disposition hearing in late April 2019, but
Father failed to appear. At that hearing, the court declined to order
DCFS to facilitate the children‘s reunification with Mother and
Father. Instead, it identified the children‘s permanency goal as
adoption, with a concurrent goal of permanent custody and
guardianship.
¶16 In a later pretrial hearing, the State sought partial summary
judgment with respect to Parents‘ fitness. Father failed to appear. At
the time of that hearing, he was subject to a $5,000 cash warrant for
his arrest for a pending felony drug possession and paraphernalia
case.
¶17 Parents then filed a joint motion asking the court to apply
the ―beyond a reasonable doubt‖ standard of proof instead of the
usual ―clear and convincing‖ standard used in termination
transfer of a car; utility theft; three instances of criminal trespass; two
instances of disorderly conduct; theft of mistaken property; theft;
reckless endangerment; attempted forgery and theft by deception;
retail theft; aggravated assault; two instances of possession of a
dangerous weapon by a restricted person; two instances of
possession or use of a controlled substance; burglary; disorderly
conduct involving domestic violence; unlawful use of a financial
transaction card; forgery; criminal mischief involving domestic
violence and intoxication; and attempted possession or use of a
controlled substance.
6At the time, Mother‘s criminal history included the following:
impaired driving; several instances of retail theft; and unlawful
acquisition, possession, or transfer of a financial transaction card.
7 See UTAH CODE § 30-5a-103(1)–(2) (―There is a rebuttable
presumption that a parent‘s decisions are in the child‘s best
interests. . . . A court may find [this] presumption . . . rebutted and
grant custodial . . . rights to an individual other than a parent. . . .‖).
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IN RE G.D. AND M.D.
Opinion of the Court
proceedings. The court rejected their motion, and the case proceeded
to trial.
¶18 At trial, Dr. Jensen, a clinical psychologist, testified that the
combined efforts of Parents, Grandmother, and DCFS had allowed
the children to form attached relationships to their caretakers. But he
explained that Parents‘ dysfunctional lifestyle had imperiled this
process. And he noted that, without Grandmother and DCFS,
custody with Parents would fail. He also testified the children were
attached and positively bonded to each other.
¶19 With respect to the children‘s future, Dr. Jensen testified
that, because the children had formed positive relationships in the
past, they had a good chance of forming new positive relationships.
In light of the children‘s unstable living situation and M.D.‘s age, Dr.
Jensen explained that changing M.D.‘s custody placement would be
less disruptive than leaving her in Parents‘ care. But, in his view,
G.D. would have more difficulty with a change in custody. He
added, however, that any delay in finding a permanent placement
would only make change more difficult for G.D. and might even
cause irreparable harm.
¶20 The court agreed with Dr. Jensen‘s assessment that Parents
had failed to demonstrate they were capable of providing the
children a risk- and disruption-free environment. The court also
noted that Parents‘ long struggle with addiction indicated a high risk
for relapse, and thus more instability.
¶21 Grandmother also testified at trial. She explained that she
already cared for one of Mother‘s other children and was hesitant to
take permanent custody of M.D. and G.D. And although she testified
that she might be in a better financial situation after a pending
divorce case, she said she did not want to care for the children for
more than two years. Instead, she hoped Mother could regain
custody within that time period. Dr. Jensen corroborated
Grandmother‘s testimony on this point, adding that, in his view,
Grandmother imagines herself in a mere supportive role and hopes
her grandchildren will eventually return to live with Parents.
¶22 In addition to this testimony about Grandmother‘s
reluctance to serve as a permanent placement option, the court noted
that, while G.D. was in Grandmother‘s care, she had failed to qualify
for foster parent licensing despite DCFS‘s repeated requests that she
do so. Because licensure would have provided Grandmother with
additional resources to alleviate her financial concerns until the
conclusion of her divorce proceeding, the court found that this
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failure ―demonstrated that [Grandmother] ha[d] not fully focused on
the children‘s best interests and ha[d] neglected their needs.‖
¶23 At trial, Grandmother also testified that she had arranged
for unauthorized parental visits before trial despite DCFS‘s requests.
Grandmother said she saw nothing wrong with these visits.
¶24 The court found that Grandmother, in arranging these visits,
had put the children in danger and demonstrated a lack of judgment.
According to the court, Grandmother‘s actions stemmed from her
desire for the children to return to Parents‘ care.
¶25 After Grandmother, the court heard from one of two
prospective adoptive families. Because one of the prospective
adoptive fathers had grown up with Father, he and his spouse
testified that they were committed to raising the children even
though such an arrangement was not their idea. They also testified
they were willing to adopt the children if needed. The court
concluded that the prospective adoptive parents were capable of
becoming licensed foster parents for the children.
¶26 With at least one potential adoptive placement option in
hand, the court then concluded that Parents lacked the necessary
skills to adequately care for the children. It also concluded that
Parents were unfit based on their history of neglect, their
unwillingness to improve, and the substantial likelihood they would
be ineffective in the near future.
¶27 The court then considered the children‘s best interests.
Because G.D. had been removed from Parents three times, the court
determined that G.D. needed to be in an adoptive placement with no
potential for further disruption. And the court reasoned that
breaking up the children‘s positive relationship would be
detrimental to both of them. So, because of M.D.‘s young age and her
positive sibling bond to G.D., the court concluded M.D. must be in
the same adoptive placement as G.D. The court also noted that
returning M.D. to Mother for another chance would be
fundamentally unfair and detrimental to M.D.
¶28 After weighing these considerations, the court determined
that an adoptive placement would provide both children the best
chance for a permanent, stable, continuing, and uninterrupted
placement. Additionally, it found no evidence indicating any of the
potential adoptive placements identified would withhold safe and
positive contact between the children and Parents. So the court
concluded that adoption was in both children‘s best interests. But the
court did not settle on a specific adoptive placement option.
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IN RE G.D. AND M.D.
Opinion of the Court
¶29 Having concluded that adoption was in the children‘s best
interests, the court considered whether termination was strictly
necessary. Before making this determination, the court explained
that it was required to consider all relevant facts and circumstances.
As part of that analysis, it noted that it was required to explore other
feasible options short of termination that might serve the children‘s
needs while also preserving the possibility for rehabilitation of the
parent-child relationship.
¶30 In its exploration of the relevant facts and circumstances, the
court again referenced the children‘s young age, explaining that it
was legally required to consider only guardianship options with
relatives. But it cited no legal authority to support this assertion.
¶31 The court then proceeded to consider the different relative
placement options. It concluded that placement with Grandmother
was not feasible because Grandmother admitted she could not see
herself caring for the children into adulthood and hoped the children
could return to live with Parents. And, even if Grandmother could
care for the children, the court concluded it could not be assured that
she would not return the children to Parents in light of the
unauthorized parental visits that had occurred under her
supervision.
¶32 Having concluded there was no feasible placement option
with relatives, the court summarized its conclusions. It stated that
section 62A-4a-205(9) of the Utah Human Services Code mandated
adoption for a child under the age of three ―if the plan is not to
return the child home,‖8 so one-year-old M.D. must be placed in
adoption. For G.D., the court concluded that his past experiences
under Parents‘ care necessitated the safety and security of adoption.
Accordingly, the court concluded that termination was strictly
necessary for both children.
¶33 At the trial‘s conclusion, the court terminated Parents‘
parental rights, but it did not determine which of the available
adoptive placements would be best for the children.
¶34 Following trial, Parents entered a post-judgment motion for
a new trial because Grandmother had been awarded a sum of money
in her divorce proceeding. In response to this motion, the court
amended its order but did not alter its conclusion to terminate
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8 UTAH CODE § 62A-4a-205(9)(a).
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Parents‘ rights. The court did not, however, explicitly consider
Grandmother‘s changed financial circumstances on the record.
¶35 Parents appealed the juvenile court‘s termination order,
arguing that the court erred in rejecting their motion to apply the
―beyond a reasonable doubt‖ standard of proof and their motion for
a new trial. They also challenged the court‘s ultimate conclusion that
termination was strictly necessary and in the best interests of the
children. The court of appeals then certified the case to this court for
review. We issued a replacement briefing order, under which
Mother and Father filed individual replacement briefs. In his brief,
Father added a request that this court overrule State ex rel. B.R.9 The
State and the children‘s appellate Guardian ad Litem attorney
submitted replacement briefs in response. We have jurisdiction
under Utah Code section 78A-3-102(3)(b).
Standard of Review
¶36 Parents claim the juvenile court erred in rejecting their
motion to apply the ―beyond a reasonable doubt‖ standard of proof.
The applicable burden of proof for termination proceedings is a
question of law we review for correctness.10
¶37 Parents also claim the juvenile court erred in concluding
that termination was strictly necessary and in the children‘s best
interests. Whether the juvenile court correctly concluded there was
no feasible alternative to terminating Mother‘s and Father‘s parental
rights is a mixed question of fact and law. ―We review the juvenile
court‘s findings [of fact] for clear error and its conclusions of law for
correctness, affording the court some discretion in applying the law
to the facts.‖11
Analysis
¶38 Parents raise three issues on appeal. First, they argue that
existing Utah law required the juvenile court to apply the ―beyond a
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9 2007 UT 82, 171 P.3d 435.
10 In re S.Y.T, 2011 UT App 407, ¶ 38, 267 P.3d 930. As part of this
claim, Father asks us to overturn State ex rel. B.R. because he claims
that we inadvertently created an impermissibly deferential standard
of review in that case. We determine the appropriate standard of
review as a matter of law.
11State ex rel. G.B., 2002 UT App 270, ¶ 11, 53 P.3d 963 (citation
omitted) (internal quotation marks omitted).
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IN RE G.D. AND M.D.
Opinion of the Court
reasonable doubt‖ standard of proof in their termination proceeding.
In support, they point to statutory language and case law espousing
the importance of parental rights. Alternatively, Parents urge this
court to adopt the ―beyond a reasonable doubt‖ standard. We reject
these arguments because Utah has adopted the ―clear and
convincing‖ standard. And we decline to raise the standard as
Parents request.
¶39 Second, Father argues that we should overturn our decision
in State ex rel. B.R. because it created an impermissibly deferential
standard of appellate review for juvenile court decisions. But Father
misinterprets State ex rel. B.R. The standard we expressed in that case
is indistinguishable from the standard of review we have used in
other cases.
¶40 Finally, Parents argue the juvenile court erred in concluding
that termination was strictly necessary and in the best interests of the
children. Upon review of the record, however, we disagree and
affirm the court‘s termination order.
I. The Juvenile Court Did Not Err in Declining to Apply the ―Beyond
a Reasonable Doubt‖ Standard of Proof
¶41 First, Parents argue the juvenile court erred by denying their
motion to apply the ―beyond a reasonable doubt‖ standard of proof
in their termination proceeding. Citing the Termination of Parental
Rights Act,12 they argue that the legislature and this court have both
expressed an intent that juvenile courts use the ―beyond a reasonable
doubt‖ standard. We disagree. Alternatively, Parents urge this court
to adopt the ―beyond a reasonable doubt‖ standard. We decline to
do so, however, because they have failed to persuade us to overturn
Utah case law adopting the lower ―clear and convincing‖ standard.
A. We Do Not Interpret Utah Law as Requiring Courts to Apply the
“Beyond a Reasonable Doubt” Standard
¶42 Parents argue that the legislature and this court have
expressed an intent that juvenile courts use the ―beyond a reasonable
doubt‖ standard of proof. Their argument proceeds in two steps.
First, they point out that, in Santosky v. Kramer, the U.S. Supreme
Court opened the door for states to raise the standard of proof for
termination proceedings beyond the ―clear and convincing‖
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12 UTAH CODE §§ 78A-6-501 to -515.
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standard.13 Second, they cite protective language in the Termination
of Parental Rights Act as evidence of legislative intent to adopt the
―beyond a reasonable doubt‖ standard. But although we agree that
the Santosky Court suggested it would be constitutionally
permissible for states to adopt a ―beyond a reasonable doubt‖
standard,14 we do not interpret Utah law as requiring that standard.
To the contrary, Utah has explicitly adopted the ―clear and
convincing‖ standard.
¶43 In Santosky, the U.S. Supreme Court held that ―when the
individual interests at stake in a state proceeding are both
particularly important and more substantial than mere loss of
money,‖ the minimum requirements of procedural due process
mandate clear and convincing evidence.15 So, because parental rights
are a fundamental liberty interest, petitioners in termination
proceedings must prove termination is warranted, at a minimum, by
clear and convincing evidence.16
¶44 Although ―clear and convincing‖ is the minimum
permissible standard of proof for termination proceedings under the
U.S. Constitution, in Santosky, the U.S. Supreme Court also
recognized that the precise standard ―is a matter of state law
properly left to state legislatures and state courts.‖17 That is, state law
governs the burden of proof so long as the state-enacted standard
does not fall below the ―clear and convincing‖ standard.
¶45 Utah has adopted the ―clear and convincing‖ standard. In
1975, almost seven years before the U.S Supreme Court‘s decision in
Santosky, this court first adopted the ―clear and convincing‖ standard
for the termination of parental rights.18 Years later, the Utah
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13 455 U.S. 745, 769–70 (1982).
14 As we explain below, although the Santosky Court suggested it
would be constitutionally permissible to raise the standard of proof,
it also suggested that raising the standard to ―beyond a reasonable
doubt‖ might be impractical. Id. at 768–69.
15 Id. at 756 (citation omitted) (internal quotation marks omitted).
16 Id. at 769–70.
17 Id. at 770.
18 In re Pitts, 535 P.2d 1244, 1248 (Utah 1975). We first
acknowledged the Santosky opinion in our decision in In re J.P., 648
P.2d 1364, 1372 (Utah 1982).
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IN RE G.D. AND M.D.
Opinion of the Court
Legislature passed the Termination of Parental Rights Act, requiring
petitioners ―to establish the facts by clear and convincing evidence‖
in termination proceedings.19 So our case law and the Termination of
Parental Rights Act have firmly established the ―clear and
convincing‖ standard as the appropriate standard in parental rights
termination cases.
¶46 Parents‘ arguments to the contrary are unavailing. They
argue that other language in the Termination of Parental Rights Act
implies legislative intent for juvenile courts to require something
beyond clear and convincing evidence. For example, they point to
other language in Utah Code section 78A-6-506(3), which requires
courts to ―give full and careful consideration to all of the evidence
presented‖; to section 78A-6-503(1), which authorizes courts to
terminate family ties only ―for compelling reasons‖; and to
section 78A-6-503(3), which requires courts to verify that
governmental entities‘ allegations are ―supported by sufficient
evidence to satisfy a parent‘s constitutional entitlement to
heightened protection against government interference with the
parent‘s fundamental rights and liberty interests.‖ And they point to
section 78A-6-507(1), which requires that termination be ―strictly
necessary‖ from the child‘s point of view.
¶47 But even though these statutory provisions are indicative of
the fundamental nature of parental rights, they do not amount to
legislative intent to require application of the ―beyond a reasonable
doubt‖ standard. The best evidence of legislative intent is ―the plain
language of the statute itself.‖20 And the text of section 78A-6-506(3)
explicitly requires clear and convincing evidence, nothing more. To
interpret section 78A-6-506(3)—in light of nearby statutory
language—as requiring the ―beyond a reasonable doubt‖ standard,
when the text clearly states otherwise, would be unsupportable.
¶48 Admittedly, the statutory provisions Parents cite highlight
the degree of care and attention Utah courts should devote to cases
that implicate parental rights. But the U.S. Supreme Court, this court,
and the legislature have agreed that the ―clear and convincing‖
standard provides adequate procedural protections for these
important rights.
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19 UTAH CODE § 78A-6-506(3).
20 State v. Martinez, 2002 UT 80, ¶ 8, 52 P.3d 1276.
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¶49 In sum, in Santosky, the U.S. Supreme Court held that a
―clear and convincing‖ standard of proof is constitutionally
sufficient to safeguard parental rights in termination cases. And even
though the Santosky Court suggested that states could raise the
standard of proof, neither this court nor the legislature has elected to
do so. Accordingly, we reject Parents‘ argument that existing law
requires courts to apply a ―beyond a reasonable doubt‖ standard.
B. We Decline Parents’ Invitation to Overrule Precedent and Adopt the
“Beyond a Reasonable Doubt” Standard
¶50 Alternatively, Parents argue that we should use this case as
a vehicle to elevate that standard to ―beyond a reasonable doubt.‖21
As with their first argument, this one proceeds in two steps. First,
Parents challenge the U.S. Supreme Court‘s reasoning in Santosky—
which suggested that the ―beyond a reasonable doubt‖ standard
may be unworkable in termination proceedings.22 Second, they
argue that adopting the ―beyond a reasonable doubt‖ standard is
warranted for three reasons: (1) New Hampshire and the federal
Indian Child Welfare Act (ICWA) apply the ―beyond a reasonable
doubt‖ standard without undue complications; (2) society has a new
understanding of childhood trauma; and (3) the informal nature of
juvenile court proceedings exacerbates the resource imbalance
between the State and parents subject to termination proceedings.
¶51 Because accepting Parents‘ invitation to adopt the ―beyond a
reasonable doubt‖ standard of proof would require us to overrule
previous Utah cases in which we adopted the ―clear and convincing‖
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21 The State suggests in its brief that this court has authority to
override the legislature‘s adoption of the ―clear and convincing‖
standard in the Termination of Parental Rights Act because, the State
avers, ―the determination of appropriate burdens of proof is a core
judicial function.‖ See UTAH CODE § 78A-3-103(1) (―The Supreme
Court shall adopt rules of procedure and evidence for use in the
courts of the state.‖). Operating under that assumption, the State
addressed the merits of Parents‘ policy arguments in favor of
adopting the ―beyond a reasonable doubt‖ standard. But we
ultimately hold that Parents‘ policy arguments are unavailing, so we
do not address the issue of whether the legislature intruded on this
court‘s jurisdiction over rules of evidence and procedure in enacting
the Termination of Parental Rights Act.
22 Santosky, 455 U.S. at 768–69.
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IN RE G.D. AND M.D.
Opinion of the Court
standard, to prevail on appeal, Parents must overcome principles of
stare decisis weighing in favor of that standard.
¶52 ―[W]e do not overrule our precedents lightly.‖23
Accordingly, our case law has established a presumption against
overruling precedent. This presumption is strongest when the
reasoning in the opinion we are reviewing is persuasive and the rule
established in the opinion has become firmly entrenched in Utah
law.24 So, to overcome the presumption against overruling
precedent, parties must persuade us that the rule they wish us to
overrule is based on unsound reasoning or was not fully considered
and demonstrate that the rule has not been firmly established in our
law.25 At a minimum, this means the party in favor of overruling
precedent must provide a basis for questioning our previous
decision.26 But, in their briefs, Parents do not challenge the previous
Utah cases in which we adopted the ―clear and convincing‖
standard. Instead, as we mention above, they focus their arguments
on the U.S. Supreme Court‘s decision in Santosky. Their arguments
directed at the decision in Santosky are insufficient to challenge
Utah‘s governing case law.
¶53 In its Santosky opinion, the U.S. Supreme Court made three
pronouncements relevant to our present discussion. First, as we
noted above, the Court set the ―clear and convincing‖ standard of
proof as the constitutional minimum for termination proceedings.27
Second, having established that standard as the constitutional
minimum, the Court explained that states are free to adopt higher
standards of proof if they so choose. 28 And third, the Court
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23 Rutherford v. Talisker Canyons Fin., Co., 2019 UT 27, ¶ 27, 445
P.3d 474 (alteration in original) (citation omitted).
24 Eldridge v. Johndrow, 2015 UT 21, ¶ 22, 345 P.3d 553.
25 In demonstrating that a rule is or is not firmly established, we
frequently consider ―the age of the precedent, how well it has
worked in practice, its consistency with other legal principles, and
the extent to which people‘s reliance on the precedent would create
injustice or hardship if it were overturned.‖ Id.26Utah Dep’t of Transp. v. Boggess-Draper Co., 2020 UT 35, ¶ 44, 467
P.3d 840.
27 Santosky, 455 U.S. at 769.
28 Id. at 769–70.
14
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expressed concerns about the workability of the ―beyond a
reasonable doubt‖ standard in termination proceedings.29
¶54 Parents acknowledge that the Santosky decision is binding
on this court. In so doing, they impliedly concede that the ―clear and
convincing‖ standard is constitutionally permissible in termination
proceedings. But, because the Santosky Court opened the door for
states to adopt higher standards of proof, they argue that we should
do so in this case. And in so arguing, they take issue with the
Santosky Court‘s concerns about the workability of the ―beyond a
reasonable doubt‖ standard.
¶55 Because nothing in the Santosky opinion would require us to
adopt the ―beyond a reasonable doubt‖ standard of proof, Parents‘
argument comes down to a matter of policy. But we are not
persuaded by Parents‘ policy arguments.
¶56 Parents raise three policy arguments for adopting the
―beyond a reasonable doubt‖ standard. They argue that raising the
standard is warranted because: (1) New Hampshire and ICWA
apply the ―beyond a reasonable doubt‖ standard without ensuing
problems; (2) in the years following the Santosky decision, society has
developed a better understanding of childhood trauma; and (3) the
informal nature of juvenile court proceedings exacerbates the
resource imbalance between the State and parents subject to
termination proceedings. None of these grounds are persuasive.
¶57 Parents‘ argument regarding the approach employed in
New Hampshire and ICWA is misplaced because neither applies the
―beyond a reasonable doubt‖ standard in the manner Parents
describe. Similar to Utah‘s two-step termination procedure, New
Hampshire courts assess both parental fitness and the children‘s
best-interests before terminating parental rights.30 But New
Hampshire requires evidence beyond a reasonable doubt only for
parental fitness determinations.31 So it does not apply this exacting
_____________________________________________________________
29 Id. at 768–69.
30 See, e.g., In re William A., 705 A.2d 1196, 1197 (N.H. 1998)
(discussing a mother‘s parental fitness in light of ―abandonment and
nonsupport‖ in addition to whether termination of the mother‘s
parental rights was in a child‘s best interests).
31 In re Adam R., 992 A.2d 697, 701 (N.H. 2010) (―The calculation of
a child‘s best interest is not an evidentiary fact, however, and need
not be established ‗beyond a reasonable doubt.‘‖).
15
IN RE G.D. AND M.D.
Opinion of the Court
standard of proof at the stage comparable to Utah‘s best-interests
stage. This is significant because Parents concede their parental
unfitness.32 So even if we were to directly adopt New Hampshire‘s
practice, it would not affect the outcome of Parents‘ appeal.
¶58 Similar to New Hampshire, ICWA does not require
evidence beyond a reasonable doubt in the manner Parents describe.
But in contrast to New Hampshire, ICWA does not impose that
standard at a stage in termination proceedings comparable to either
Utah‘s parental-fitness or best-interests stages. Rather, ICWA
requires evidence beyond a reasonable doubt only for a factual
determination that physical or emotional harm to the child is likely
to occur—a determination that is part of a procedural requirement
that does not appear in Utah‘s statutory code.33 Additionally, we
note that Congress enacted ICWA for the specific and distinct
purpose of preventing overreach by state adoption courts into the
sovereignty of Native American tribes.34 Because of these procedural
and substantive differences, we do not find ICWA to be a fitting
model for applying the ―beyond a reasonable doubt‖ standard in
termination proceedings under Utah law.
_____________________________________________________________
32 The juvenile court noted that Parents both admitted to
neglecting the children. Additionally, neither Parent has raised any
arguments directly challenging the court‘s unfitness determination
on appeal.
3325 U.S.C. § 1912(f). Although Utah courts may rely on a finding
of physical or emotional harm to conclude that a parent is unfit, this
finding is only one of many statutory grounds for an unfitness
determination. See UTAH CODE § 78A-6-507. So, at most, ICWA
suggests that the ―beyond a reasonable doubt‖ standard could be
applied to a single ground for termination under Utah law—not to
the entire termination analysis as Parents suggest.
3425 U.S.C. § 1901(5) (explaining that Congress passed ICWA to
combat states‘ ―fail[ure] to recognize the essential tribal relations of
Indian people and the cultural and social standards prevailing in
Indian communities and families‖ in termination proceedings
involving members of federally recognized Indian tribes); see
generally State v. Native Vill. of Tanana, 249 P.3d 734, 750 (Alaska 2011)
(―[U]nless and until its powers are divested by Congress, a federally
recognized sovereign Indian tribe has powers of self-government
that include the inherent authority to regulate internal domestic
relations among its members.‖).
16
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¶59 Turning to Parents‘ argument regarding society‘s evolving
understanding of childhood trauma, we are not convinced this factor
weighs in their favor even were we to accept their assertions in this
regard. Essentially, Parents argue that society‘s evolved
understanding of childhood trauma requires us to be more careful
before removing children from their parents. But this argument cuts
both ways. Although removing children from their parents is often
traumatic, leaving children in a neglectful or unsafe home may be
equally traumatic or even physically dangerous. 35
¶60 Finally, we reject Parents‘ argument regarding the resource
imbalance between the State and parents in termination proceedings.
Although Parents‘ resource-imbalance argument could be equally
applicable in many other contexts, they assert that the informal
nature of termination proceedings exacerbates the problem.36
Specifically, they point to the fact that juvenile courts may consider
evidence that is not typically admissible, such as reliable hearsay and
opinions.37 But we are not convinced that this or other informal
aspects of juvenile court procedure exacerbate the resource problem.
¶61 It may be true, of course, that many parents lack the
resources and legal expertise to effectively defend against
termination on their own. In contrast, the State has many resources
at its disposal, such as the information DCFS caseworkers collect
when working closely with struggling families. But we do not agree
that the informal aspects of termination proceedings exacerbate this
_____________________________________________________________
35 See generally Heather A. Turner et al., Child Neglect and the
Broader Context of Child Victimization, 24 CHILD MALTREATMENT 265
(2019) (finding that experiences with neglect and violence, ―both
inside and outside the family context,‖ are associated with trauma
symptoms).
36 The Utah Rules of Juvenile Procedure state that ―[d]isposition
hearings shall be conducted in an informal manner to facilitate the
opportunity for all participants to be heard.‖ UTAH R. JUV. P. 46(a);
see also Interest of S.J., 576 P.2d 1280, 1283 (Utah 1978) (―[J]uvenile
court proceedings are highly equitable in nature, designed to inquire
into the welfare of children, are not adversary in the usual sense, and
may be conducted in an informal manner. . . . This informality does
not permit, however, the abridgement of basic constitutional
provisions of due process.‖ (footnote omitted)).
37 See UTAH R. JUV. P. 46(b).
17
IN RE G.D. AND M.D.
Opinion of the Court
problem. In fact, it seems more likely that the informality of such
proceedings may serve to lower the hurdle for legally
unsophisticated parents by making it easier for them to introduce
evidence and dispute the State‘s claims. In other words, it seems
more likely that the informal nature of juvenile court would, if
anything, help to ameliorate the resource imbalance between Utah
parents and the State.38 And even if this is not the case, the informal
nature does not clearly benefit one side or the other.
¶62 Accordingly, even assuming the Santosky Court‘s concerns
about the ―beyond a reasonable doubt‖ standard are misplaced,
Parents have not persuaded us that raising the standard of proof is
warranted. So we decline their invitation to adopt the ―beyond a
reasonable doubt‖ standard.
¶63 Because the Utah legislature and this court have adopted the
―clear and convincing‖ standard, and because we decline to raise
that standard of proof in this case, we affirm the juvenile court‘s
denial of Parents‘ joint motion to apply the ―beyond a reasonable
doubt‖ standard.
II. We Did Not Create a New Standard of Review in State ex rel. B.R.
¶64 We now turn to Father‘s argument that State ex rel. B.R.
created an impermissibly deferential standard of appellate review
for juvenile court decisions. But, before reaching the substance of
Father‘s argument, we first address the State‘s contention that
Father‘s argument violates this court‘s briefing order. For the reasons
discussed below, we disagree with that contention.
¶65 With respect to the merits of Father‘s argument, we
conclude that he misinterprets our holding in State ex rel. B.R. as
setting out a unique standard of deference for juvenile courts. To the
contrary, our decision in State ex rel. B.R. reiterates the standard used
in other cases. But even though we uphold the standard of appellate
review used in our State ex rel. B.R. decision, we take this
opportunity to emphasize the importance of carefully applying the
_____________________________________________________________
38 Although we reject Parents‘ argument on this point, we note
that the resource imbalance Parents identify is an important
consideration. But there are or could be other policy considerations
at play—considerations that could be foundational in existing Utah
case law. Parents‘ failure in their briefs to adequately address
existing Utah law in this regard is an additional reason for rejecting
this policy argument in this case.
18
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―clear and convincing‖ standard of proof in termination
proceedings.
A. Father’s Argument Does Not Violate our Briefing Order
¶66 As noted, Father calls for us to overrule our decision in State
ex rel. B.R. The State argues this is improper because Father did not
explicitly request the court of appeals to overturn State ex rel. B.R.
and our briefing order ―clearly envision[s] only modifications to
arguments already presented to the Court of Appeals.‖ According to
the State, replacement briefs are meant to ―allow counsel to
reformulate arguments already made before the Court of Appeals to
reflect the new posture before this Court,‖ not to allow counsel to
bring ―new legal theories never raised before the Court of Appeals.‖
But the State cites no authority for this proposition and does not
explain what effect this alleged violation would have on Father‘s
position on appeal.
¶67 And even were we to accept the State‘s proposition, we are
not convinced Father‘s inclusion of his argument regarding State ex
rel. B.R. would be improper. This is because Father‘s brief can
reasonably be read as merely reformulating his arguments to reflect
the case‘s new posture before this court. Because the court of appeals
is bound by our decision in State ex rel. B.R., Father‘s effort to
overturn State ex rel. B.R. before that court would have been futile.
But when the case was certified to us, this argument became viable.
For this reason, Father‘s inclusion of his State ex rel. B.R. argument is
permissible. Accordingly, we address the merits of Father‘s
argument.
B. Father Misinterprets State ex rel. B.R.
¶68 Father argues that State ex rel. B.R. unintentionally
articulated a standard of ―super-deference‖ that disregards the
―clear and convincing‖ standard of proof required in termination
proceedings.39 Although he concedes that State ex rel. B.R. is firmly
established in Utah law, Father argues that it has effectively lowered
the evidentiary standard in termination proceedings from ―clear and
convincing‖ to ―a mere preponderance of the evidence or worse.‖ He
requests that we amend the standard of review we applied in State ex
rel. B.R. to ensure juvenile courts support their conclusions with
sufficiently convincing evidence. But, contrary to Father‘s assertions,
_____________________________________________________________
39 2007 UT 82, 171 P.3d 435.
19
IN RE G.D. AND M.D.
Opinion of the Court
we do not read State ex rel. B.R. as setting out a unique standard of
review for juvenile courts.
¶69 As a central part of Father‘s argument, he interprets State ex
rel. B.R. as forbidding appellate courts from overturning a
termination order when any evidence supports the juvenile court‘s
decision. But the standard of review we applied in State ex rel. B.R. is
the same standard we have used in other cases.
¶70 For example, in Encon Utah, LLC v. Fluor Ames Kraemer, LLC,
we explained that ―[w]e review a trial court‘s factual findings for
clear error and will overturn a factual finding only if it is against ‗the
clear weight of the evidence.‘‖40 In comparison, in State ex rel. B.R.,
we explained that ―in order to overturn the juvenile court‘s decision
[t]he result must be against the clear weight of the evidence or leave
the appellate court with a firm and definite conviction that a mistake
has been made.‖41 So the standard we applied in State ex rel. B.R. is
substantially similar to the standard of review we apply in other
cases when reviewing a trial court‘s factual findings.
¶71 And this well-established standard of review is appropriate
for reviewing factual findings of trial courts. As we explained in
Pagano v. Walker, ―it has long been established and reiterated by this
court . . . that due to the advantaged position of the trial court we
will review its findings and judgments with considerable
indulgence.‖42 So we ―will not disagree with and upset [a trial
court‘s findings] unless the evidence clearly preponderates against
them, or the court has mistaken or misapplied the law.‖43
¶72 But although the standard of review we applied in State ex
rel. B.R. is well established in our case law, Father takes issue with
some additional language we employed in that case while discussing
what a typical review of factual findings should look like. We
explained that appellate courts may only overturn a juvenile court‘s
decision (assuming the juvenile court correctly interpreted the law)
―if [the juvenile court] either failed to consider all of the facts or
_____________________________________________________________
40 2009 UT 7, ¶ 11, 210 P.3d 263 (citation omitted) (internal
quotation marks omitted).
41 State ex rel. B.R., 2007 UT 82, ¶ 12 (alteration in original)
(citation omitted) (internal quotation marks omitted).
42 539 P.2d 452, 454 (Utah 1975).
43 Id.20
Cite as: 2021 UT 19Opinion of the Court
considered all of the facts and its decision was nonetheless against
the clear weight of the evidence.‖44 But this principle is also firmly
established in our case law.45 So Father has failed to show us how the
State ex rel. B.R. standard differs from the standard we typically
apply on appeal.46
¶73 In short, we are not convinced that we deviated from our
longstanding principles of deference to trial courts in State ex rel.
B.R., let alone created a unique standard of super-deference for
juvenile courts. But we take this opportunity to emphasize the
importance of the ―clear and convincing‖ standard of proof in
termination proceedings. Although we defer to juvenile courts‘
factual determinations, in reviewing their conclusions we do so with
an exacting focus on the proper evidentiary standard. In order that
our court or the court of appeals might conduct the robust appellate
review that a ―clear and convincing‖ standard requires of us, it is
_____________________________________________________________
44 State ex rel. B.R., 2007 UT 82, ¶ 12.
45 See Tanner v. Baadsgaard, 612 P.2d 345, 346 (Utah 1980) (―Where
the evidence is in dispute, we assume that [the trial court] believed
that which is favorable to [its] findings, and we do not disturb them
unless [the evidence] clearly preponderates to the contrary.‖); First
W. Fid. v. Gibbons & Reed Co., 492 P.2d 132, 133 (Utah 1971), abrogated
on other grounds by Flying Diamond Oil Corp. v. Newton Sheep Co., 776
P.2d 618 (Utah 1989) (―Where the appellant‘s position is that the trial
court erred in refusing to make certain findings essential to its right
to recover, and insists that the evidence compels such findings, it is
obliged to show that there is credible and uncontradicted evidence
which proves those contended facts with such certainty that all
reasonable minds must so find.‖).
46 In State ex rel. B.R., we stated that ―an appellate court may not
engage in a reweighing of the evidence‖ ―[w]hen a foundation for
the court‘s decision exists in the evidence.‖ 2007 UT 82, ¶ 12. This
sentence could give the impression that there is a uniquely
deferential standard of review for juvenile courts. We disavow this
sentence and any other language in B.R. so far as it suggests that
there is a different standard of review for juvenile courts. When
reviewing a fact-intensive mixed question of fact and law, such as
whether a particular placement serves a child‘s best interests,
appellate courts should use the same standard used in other cases:
An appellate court must not overturn the trial court‘s decision unless
it is against the clear weight of the evidence.
21
IN RE G.D. AND M.D.
Opinion of the Court
critical that juvenile courts thoroughly and transparently examine all
of the relevant facts in determining whether that standard has been
met. In conducting our appellate review, we will not only consider
whether any relevant facts have been left out but assess whether the
juvenile court‘s determination that the ―clear and convincing‖
standard had been met goes against the clear weight of the evidence.
III. The Court Did Not Err in Its ―Strictly Necessary‖ Analysis
¶74 Finally, we address Parents‘ claim that the juvenile court
erred in concluding that termination was strictly necessary and in
the children‘s best interests. They argue that the court erred in two
ways. First, Parents argue that the court‘s ―strictly necessary‖
analysis was deficient because the court did not support its
conclusion with findings regarding Grandmother‘s post-divorce
financial circumstances. But, after reviewing the record, we disagree.
Second, Parents argue that the court mistakenly relied on a provision
of the Utah Human Services Code to inappropriately limit its
―strictly necessary‖ analysis. But Parents have not carried their
burden to adequately brief this issue, so we do not address it.
¶75 We interpreted the Termination of Parental Rights Act‘s
―strictly necessary‖ requirement in Interest of B.T.B. There, we
concluded that once statutory grounds for termination exist, ―the
court must determine if termination is strictly necessary for the
welfare and best interest of the child.‖47 And we explained that
termination is not strictly necessary if a child can be ―equally
protected and benefited by an option other than termination.‖48 But
we also stated that ―when the Legislature instructed [juvenile courts
to] consider the welfare and best interest of the child of paramount
importance, it elevated that consideration above all of the other
important interests the Act identifies.‖49 So when two placement
options would equally benefit a child, the strictly-necessary
requirement operates as a preference for a placement option that
does not necessitate termination over an option that does.
¶76 Additionally, in making a ―strictly necessary‖
determination, the Termination of Parental Rights Act imposes an
_____________________________________________________________
47Interest of B.T.B., 2020 UT 60, ¶ 62, 472 P.3d 827, reh’g granted
(Aug. 13, 2020), as amended (Aug. 14, 2020).
48 Id. ¶ 66.
49 Id. ¶ 61 n.13 (internal quotation marks omitted).
22
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affirmative mandate for juvenile courts to ―give full and careful
consideration to all of the evidence presented with regard to the
constitutional rights and claims of the parent.‖50 So we look to the
record to determine whether the juvenile court considered all of the
evidence in determining that termination was strictly necessary and
in the children‘s best interests.51
¶77 First, Parents argue that the court‘s ―strictly necessary‖
analysis was deficient because the court did not consider
Grandmother‘s improved financial circumstances following the
resolution of her divorce proceeding which had been pending
during trial. In their view, had the court considered Grandmother‘s
post-divorce financial situation, it would have concluded that
placing the children with her was a feasible alternative to
terminating their parental rights. But after reviewing the record, we
disagree. The court did in fact consider the possibility that
Grandmother‘s financial situation would improve. And although the
court could have given more detailed reasoning, it nevertheless
made sufficient findings to meet its mandate to ―give full and careful
consideration to all of the evidence presented.‖52
¶78 The juvenile court‘s amended order indicates that
Grandmother‘s financial circumstances were a point of discussion at
trial. While caring for the children before trial, Grandmother failed to
become a licensed foster parent despite DCFS‘s repeated requests
that she do so. At trial, the court found that foster parent licensure
―would have provided her and the . . . children with additional
resources and helped them financially until the funds from her divorce
action became available.‖ (Emphasis added.) The court also found that
Grandmother‘s failure to attain licensure ―stem[med] from her
wanting the children to go back with Parents‖ and ―demonstrated
that she ha[d] not fully focused upon the children‘s best interests and
ha[d] neglected their needs.‖ In making these findings, the court
determined that Grandmother‘s failure to attain licensure spoke ill of
_____________________________________________________________
50 UTAH CODE § 78A-6-506(3).
51 See Interest of C.C.W., 2019 UT App 34, ¶ 24, 440 P.3d 749(―[T]he juvenile court never directly grappled with Father‘s violent
history in its best interest analysis. . . . [W]e cannot construe the
juvenile court‘s best-interest discussion as containing adequately
articulated reasons for its decision.‖).
52 UTAH CODE § 78A-6-506(3).
23
IN RE G.D. AND M.D.
Opinion of the Court
her fitness as a potential guardian. But the court‘s concerns about
placing the children with her did not end there.
¶79 Ultimately, the court declined to place the children with
Grandmother because of ―her own admission that she cannot see
herself caring for the children until each of them reaches adulthood.‖
Moreover, ―[e]ven if Grandmother could continue as the children‘s
permanent custodian and guardian‖ long term, the court was
troubled that she had arranged for unauthorized parental visits
while the children were in her custody and testified at trial that she
saw nothing wrong that. The court found that, in arranging these
visits, Grandmother had demonstrated a lack of judgment, placed
the children in potential danger, and ―lost . . . credibility with the
court.‖ Based on this, the court concluded that it could not ―be
assured that [Grandmother] w[ould] not return the children to
Parents,‖ so permanent custody and guardianship with her was out
of the question.
¶80 Following trial and the resolution of Grandmother‘s divorce
proceeding, Parents filed a motion for a new trial for the court to
consider the precise amount of money Grandmother would receive
as a result of the divorce, which was unknown at the time of trial.
But the court denied that motion because Parents had ―not
present[ed] anything new in their request for a new trial that would
have altered the court‘s decision to terminate their parental rights.‖
In other words, the evidence regarding the precise amount of money
Grandmother was to receive would not have altered the court‘s
reasoning about the feasibility of placing the children with her.
¶81 On appeal, Parents again fail to adequately challenge the
court‘s reasoning regarding Grandmother—they do not attempt to
excuse her lapses in judgment while the children were in her care.
Instead, they claim that the court‘s ―strictly necessary‖ analysis was
deficient because the court did not admit and consider the evidence
they presented after trial. Certainly the court could have made more
detailed findings regarding Grandmother‘s financial ability to care
for the children following her divorce. But neither the Termination of
Parental Rights Act nor our decision in Interest of B.T.B. requires a
juvenile court to consider supplemental evidence that merely
elaborates on a factor the court already considered in its ―strictly
necessary‖ analysis—especially when that evidence does not address
or refute the considerations on which the court relied to reach its
conclusion.
¶82 From the record, it is clear that the court considered the
possibility that Grandmother would be more financially capable of
24
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caring for the children following her divorce. But that possibility did
not affect the court‘s other concerns about placing the children in her
care. And, following trial, the court denied Parents‘ motion for a new
trial because none of the evidence ―would have altered the court‘s
decision.‖ We conclude that the court fulfilled its affirmative
mandate to ―give full and careful consideration to all of the evidence
presented‖ regarding Grandmother‘s finances.53
¶83 Second, Parents argue that the court mistakenly relied on a
provision of the Utah Human Services Code to inappropriately limit
its consideration of permanent guardianship placement options to
placement with relatives of the children. In their view, the court
should have considered permanent guardianship placement with the
prospective adoptive parents as an alternative to terminating their
parental rights. We reject this argument because Parents have failed
to adequately brief it.
¶84 Under rule 24 of the Utah Rules of Appellate Procedure, an
appellant ―must explain, with reasoned analysis supported by
citations to legal authority and the record, why the party should
prevail on appeal.‖ We have stated that ―this court is not a
depository in which the appealing party may dump the burden of
argument and research.‖54 So to carry their burden under this rule,
Parents must demonstrate that the juvenile court‘s reliance on a
provision of the Human Services Code was error and that they
should prevail on appeal. They fail to do so.
¶85 In its termination order, the juvenile court quoted
section 62A-4a-205(9) of the Human Services Code, stating that
―because [M.D.] is one-year old, Utah statutory law dictates that
adoption is the only feasible option for her primary permanency
goal: ‗with regard to a child who is three years of age or younger, if
the plan is not to return the child home, the primary permanency
plan for that child shall be adoption.‘‖ Parents cite this part of the
court‘s order, arguing it was error because ―Utah Code § 62A-4a-
205(9) is a provision of the Utah Human Services Code, not the
Juvenile Court Act.‖ And, they argue, ―[t]his provision does not
absolve the juvenile court of its responsibility to consider the welfare
_____________________________________________________________
53 Id.
54 State v. Gamblin, 2000 UT 44, ¶ 6, 1 P.3d 1108 (quoting State v.
Jaeger, 1999 UT 1, ¶ 31, 973 P.2d 404) (internal quotation marks
omitted).
25
IN RE G.D. AND M.D.
Opinion of the Court
and best interest of the child of paramount importance.‖ (Citation
omitted.) (Internal quotation marks omitted.)
¶86 Central to Parents‘ argument is their assertion that the
juvenile court should not have relied on the Human Services Code
because it governs DCFS activity and does not apply to juvenile
courts. But this assertion is inaccurate. In fact, section 62A-4a-
205(9)(b) of the Human Services Code lays out the circumstances in
which a court may order certain permanent living arrangements.55
¶87 Beyond this assertion, Parents argue that the statute governs
M.D.‘s ―primary permanency plan,‖ not the outcome of the
termination proceeding. But they do not address the relevance of the
children‘s primary permanency plan to the proceeding. Nor do they
address whether the court could have permissibly relied on the
statute to foreclose consideration of certain placement options for the
children.
¶88 Moreover, although the record indicates that the court relied
on the Human Services Code to some degree, Parents have not made
clear the extent to which it did so. In its ―strictly necessary‖ analysis,
in addition to quoting the statute, the court considered the many
opportunities Parents had to reform themselves. And based on those
missed opportunities, the court concluded that it was ―unwilling to
gamble the children‘s safety, security, and stability by placing them
in a permanent custody and guardianship arrangement.‖ Parents
have not addressed whether this portion of the court‘s reasoning also
played a part in limiting the placement options it was willing to
consider.
¶89 Without more elaboration, we cannot conclude that Parents
have carried their burden to brief this issue. Parents‘ assertion that
the Human Services Code governs DCFS activity does not
sufficiently address the statute‘s potential relevance to a juvenile
court‘s ―strictly necessary‖ analysis. Further, Parents have not
demonstrated that the court relied solely on this statute to limit its
_____________________________________________________________
55 UTAH CODE § 62A-4a-205(9)(b) (2020) (―[I]f the division
documents to the court that there is a compelling reason that
adoption, reunification, guardianship, and a placement described in
Subsection 78A-6-306(6)(e) are not in the child‘s best interest, the
court may order another planned permanent living arrangement in
accordance with federal law.‖ (emphasis added)).
26
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analysis. So we conclude that Parents have not carried their burden
under rule 24.
Conclusion
¶90 The juvenile court did not err in declining to apply the
―beyond a reasonable doubt‖ standard of proof. And we decline to
adopt that standard now because Parents have failed to overcome
the weight of stare decisis in favor of the ―clear and convincing‖
standard. We conclude that the court did not err in its ―strictly
necessary‖ analysis. The court adequately considered the possibility
that Grandmother would be more financially capable of caring for
the children following her divorce but nevertheless concluded that
placement with her was infeasible for other reasons. And we do not
address Parents‘ argument that the court erred in considering a
provision from the Human Services Code in its analysis because
Parents have not adequately briefed the issue. Accordingly, we
affirm the juvenile court‘s termination order.
27