In re B.T.B. ( 2020 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2020 UT 36IN THE
SUPREME COURT OF THE STATE OF UTAH
In the Interest of B.T.B. and B.Z.B.,
children under 18 years of age.
B.T.B. and B.Z.B, with J.P.B,
Petitioner and Cross-Appellees,
v.
V.T.B.,
Respondent and Cross-Appellant.
No. 20180805
Heard January 15, 2020
Filed June 22, 2020
On Certiorari to the Utah Court of Appeals
Fifth District, Washington County
The Honorable Judge Michael F. Leavitt
Nos. 1142575, 1142576
Attorneys: 1
Martha Pierce, Salt Lake City, Guardian ad Litem
for B.T.B. and B.Z.B., petitioners and cross-appellees
LaMar J. Winward, St. George, for joinder J.P.B.,
petitioner and cross-appellee
J. Robert Latham, St. George, for V.T.B., respondent
and cross-appellant
_____________________________________________________________
1
Amicus Curiae: Sean D. Reyes, Att’y Gen., Carol L. C.
Verdoia, John M. Peterson, Asst. Att’y Gens., Salt Lake City, for
State of Utah and Division of Child and Family Services; Kristin
H. Norman, Margaret P. Lindsay, Salt Lake City, for Parental
Defense Alliance.
In re B.T.B and B.Z.B.
Opinion of the Court
JUSTICE PEARCE authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE HIMONAS, and JUSTICE PETERSEN joined.
JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶1 The mother (Mother) of two children, B.T.B. and B.Z.B.,
asked the juvenile court to terminate the parental rights of the
children’s biological father (Father). To resolve the petition, the
juvenile court followed the statutory framework the Legislature
created to decide when the power of the State can be used to sever
the legal bond between parent and child.
¶2 The Termination of Parental Rights Act (Act) first requires
that a juvenile court find, by clear and convincing evidence, that one
or more of several specifically listed grounds for termination is
present. See UTAH CODE § 78A-6-506, -507. The juvenile court here
found multiple grounds, including that Father had abandoned and
neglected his children. The juvenile court then, in compliance with
the statutory framework, concluded that terminating Father’s
parental rights was in B.T.B.’s and B.Z.B.’s best interest.
¶3 The juvenile court next addressed a relatively new addition
to the statutory scheme: a legislative mandate that termination occur
only when it is “strictly necessary” to terminate parental rights. See
UTAH CODE § 78A-6-507(1). The juvenile court rejected Father’s
argument that termination can only be strictly necessary when it is
prelude to an adoption. And it found that termination was strictly
necessary because Father’s inconsistent presence in the lives of the
children “will continue to damage” them.
¶4 Father appealed that ruling to the court of appeals, arguing
that the juvenile court had not properly interpreted the termination
statute. In Interest of B.T.B., 2018 UT App 157, ¶ 1, 436 P.3d 206. The
court of appeals clarified the analysis the juvenile court should have
employed and remanded to the juvenile court to re-examine the
question under the clarified analysis. Id. ¶ 63.
¶5 The children’s guardian ad litem (GAL) petitioned us to
review the court of appeals’ decision, arguing that the court of
appeals misinterpreted the statute. The GAL also contends that the
court of appeals improperly overruled a line of its cases that stood
for the proposition that once statutory grounds for termination are
found, it follows “almost automatically” that termination is in a
2
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child’s best interest. Father cross-petitioned, complaining that the
court of appeals had misinterpreted the strictly necessary
requirement. We granted both petitions.
¶6 We reject the GAL’s argument that the court of appeals
inappropriately clarified its case law. And we largely agree with the
court of appeals’ statutory analysis. But we add our own
observations about the statute and take the opportunity to clarify a
couple of points in response to concerns the GAL and the Utah
Division of Child and Family Services (DCFS) (which we invited to
file an amicus brief) have raised about how the court of appeals
opinion might be interpreted. Ultimately, we affirm the court of
appeals’ decision to remand to the juvenile court so it may re-
examine the termination petition in light of the clarified standard.
BACKGROUND 2
¶7 Mother and Father are the parents of B.T.B. and B.Z.B. The
couple married in 2010, separated in 2012, and divorced the
following year. Since that time, Father has been repeatedly
incarcerated. Between June 2012 and the 2017 termination petition,
Father visited his children only a handful of times. Although
Father’s incarceration explains some of that absence, Father never
wrote or otherwise attempted to contact his children from prison.
Except for a single occasion when he attempted to give Mother $400
cash, Father has not paid child support.
¶8 In 2017, Mother petitioned the juvenile court to terminate
Father’s parental rights. The Office of Guardian ad Litem
represented the children’s interests in the termination proceedings.
¶9 After an evidentiary hearing, the juvenile court found that
Mother had proven by clear and convincing evidence that Father
had abandoned the children, had made only token efforts to support
or communicate with the children, had neglected the children, and
was an unfit parent. In addition, the court found that it was in the
children’s best interest for Father’s parental rights to be terminated.
The juvenile court took note of the requirement that the termination
be “strictly necessary” and found that it was strictly necessary to
terminate Father’s parental rights because Father’s “inconsistent
parent time, and expectations of the [children] that accompany it,
_____________________________________________________________
2 We recite the facts in the light most favorable to the trial court’s
decision. 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 72, 99 P.3d 801.
3
In re B.T.B and B.Z.B.
Opinion of the Court
will continue to damage” the children. The court then terminated
Father’s parental rights in B.T.B. and B.Z.B.
¶10 Father appealed the termination order, arguing that the
juvenile court misapplied the Act’s strictly necessary requirement. In
Interest of B.T.B., 2018 UT App 157, ¶ 1, 436 P.3d 206. Specifically,
Father argued that by adding that language, the Legislature
introduced a third element into the termination inquiry, such that
the juvenile court needed to find: (1) that termination was strictly
necessary; (2) that grounds for termination existed; and (3) that
termination was in the child’s best interest. Id. ¶ 33. Father also
contended that termination can only be strictly necessary when the
juvenile court is considering an adoption or similar change in the
child’s permanent living situation. Id. ¶ 56.
¶11 The court of appeals rejected Father’s contentions. Id. ¶¶ 33,
46, 50, 56. It opined that a court should consider whether termination
is strictly necessary as part of its analysis into the child’s best
interest. Id. ¶ 50. And it concluded that termination would be strictly
necessary when it was “absolutely essential to the child’s best
interest that a parent’s rights be permanently severed.” Id. ¶ 54.
¶12 After soliciting supplemental briefing on the subject, the
court of appeals took the opportunity to disavow its case law to the
extent it suggested that when statutory grounds for termination are
present, it follows “almost automatically” that termination will be in
a child’s best interest (the almost automatically cases). Id. ¶ 44. The
court of appeals reasoned that this case law muddled the important
distinction between the statutory grounds for termination and the
court’s examination into what outcome would promote a child’s best
interest. See id. ¶ 23. The court of appeals opined that the almost
automatically cases were irreconcilable with the legislative mandate
that a court examine whether termination is “strictly necessary.” Id.
¶¶ 32, 37.
¶13 The court of appeals demonstrated that its concern about the
almost automatically cases was more than an academic frolic. It
noted that in at least two instances, court of appeals panels had
relied on the almost automatically line of reasoning to hold that a
respondent—meaning the parent whose rights were to be
terminated—had failed to show why termination was not in the best
interest of the child once the court had determined that a ground for
termination existed. Id. ¶¶ 24–31 The B.T.B. court reasoned that this
had effectively, and improperly, flipped the burden from the
petitioner to the respondent. Id. ¶ 31.
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¶14 The court of appeals then construed the balance of Father’s
arguments as a challenge to the juvenile court’s best interest
determination. Id. ¶ 59. The court of appeals reasoned that it had
“clarified and reformulated” the analytical framework to comport
with the statute and explained that the strictly necessary inquiry was
part of the best interest analysis. Id. Because of this, “Father's
arguments regarding ‘strictly necessary,’” were really “a challenge to
the juvenile court’s conclusion that termination of his rights was in
the Children’s best interests.” Id. And it remanded the case back to
the juvenile court so that court could examine the question with the
benefit of the clarified test. Id. ¶ 63.
¶15 The GAL, as well as Father, asked this court to review the
court of appeals’ decision. We granted the cross-petitions for writ of
certiorari on the following questions:
Whether the Court of Appeals erred in disavowing
statements in its prior case law “to the extent they
suggest that, once statutory grounds for termination
are established, it follows ‘almost automatically[’] that
termination will be in the best interest of a child, or that
it is only in ‘rare’ or ‘unusual’ cases that termination of
parental rights will not follow from a finding of
statutory grounds for termination.”
Whether the Court of Appeals erred in its construction
and application of the term “strictly necessary” in
Section 78[A]-6-507(1) of the Utah Code.
Whether the court of appeals erred in rejecting Cross-
Petitioner’[s] argument that Section 78[A]-6-507(1) of
the Utah Code includes a distinct requirement of a
finding of strict necessity in addition to the
requirements for findings of a ground for termination
and the best interests of a child.
¶16 We invited amicus curiae briefs from DCFS and the Parental
Defense Alliance of Utah. 3
_____________________________________________________________
3We appreciate the excellent briefing and thoughtful input both
amici provided.
5
In re B.T.B and B.Z.B.
Opinion of the Court
STANDARD OF REVIEW
¶17 “On certiorari, we review for correctness the decision of the
court of appeals . . . .” Pulham v. Kirsling, 2019 UT 18, ¶ 18, 443 P.3d
1217 (citation omitted) (internal quotation marks omitted).
ANALYSIS
I. The Statutory Framework
¶18 Before we discuss the parties’ arguments, it is helpful to
review the portions of the Act the court of appeals interpreted. A
petition to terminate parental rights can be brought either by certain
private parties or the State. UTAH CODE § 78A-6-504. Some
requirements differ depending on how the process originates. See,
e.g., id. § 78A-6-304. However, the statutes at issue here—Utah Code
sections 78A-6-503, -506, and -507—apply to both private and public
termination petitions.
¶19 Section 507 outlines how and when a court may terminate
parental rights. In section 507, the Legislature lists a number of
grounds for termination and mandates that a court find one of them
present before it orders termination. These grounds include:
abandonment of the child; neglect or abuse of the child; unfitness or
incompetence of the parent; and a parent’s voluntary relinquishment
of her rights. See id. § 78A-6-507.
¶20 After a court finds that a statutory ground for termination
exists, the Act requires a court to consider whether termination is in
the child’s best interest. See id. §§ 78A-6-503(12), -506(3). The Act also
instructs that “the welfare and best interest of the child [is] of
paramount importance in determining whether termination of
parental rights shall be ordered.” Id. §§ 78A-6-503(12), -506(3).
¶21 Section 506 outlines substantive and procedural
requirements for termination proceedings. Subsection 506(3) states,
The proceedings are civil in nature and are governed
by the Utah Rules of Civil Procedure. The court shall in
all cases require the petitioner to establish the facts by
clear and convincing evidence, and shall give full and
careful consideration to all of the evidence presented
with regard to the constitutional rights and claims of
the parent and, if a parent is found, by reason of the
parent's conduct or condition, to be unfit or
incompetent based upon any of the grounds for
termination described in this part, the court shall then
consider the welfare and best interest of the child of
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paramount importance in determining whether
termination of parental rights shall be ordered.
¶22 Although the Legislature invests courts with the authority to
terminate parental rights in appropriate circumstances, the
Legislature is not indifferent about how that power should be
exercised. Subsection 503(12) instructs that “[w]herever possible,
family life should be strengthened and preserved.”
¶23 In 2012, the Legislature amended the Act in two significant
ways; that is, it made termination of parental rights subject to two
conditions. First, the Legislature made termination “[s]ubject to the
protections and requirements of Section 78A-6-503.” UTAH CODE
§ 78A-6-507(a); 2012 Utah Laws 1334. And second, a court would
need to find that termination was “strictly necessary” before it could
terminate a parent’s rights. UTAH CODE § 78A-6-507(a); 2012 Utah
Laws 1334.
¶24 As part of that amendment, the Legislature added an
extensive list of requirements and policy declarations to section
503—the section that termination would now be “subject to.” See
UTAH CODE § 78A-6-503; 2012 Utah Laws 1333. For example, the
Legislature declared that “a parent possesses a fundamental liberty
interest in the care, custody, and management of the parent’s child.”
UTAH CODE § 78A-6-503(1). The Legislature further opined that such
a fundamental liberty interest “does not cease to exist simply
because . . . a parent may fail to be a model parent” or because “the
parent’s child is placed in the temporary custody of the state.” Id.
§ 78A-6-503(4). In what is perhaps the strongest statement of
legislative policy, the amended Act provides that it “is in the best
interest and welfare of a child to be raised under the care and
supervision of the child’s natural parents” and that “[a] child’s need
for a normal family life in a permanent home, and for positive,
nurturing, family relationships is usually best met by the child’s
natural parents.” Id. § 78A-6-503(8).
¶25 After listing eleven statements of legislative policy, the
amended section 503 culminates in the section’s original language
which provides that if grounds for termination are found, “the court
shall then consider the welfare and best interest of the child of
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In re B.T.B and B.Z.B.
Opinion of the Court
paramount importance in determining whether termination of
parental rights shall be ordered.” Id. § 78A-6-503(12). 4
II. The Court of Appeals’ Interpretation of The Act
¶26 The court of appeals commenced its analysis by considering
the two-part test for termination of parental rights “established by
our legislature and our supreme court.” In Interest of B.T.B., 2018 UT
App 157, ¶ 13, 436 P.3d 206. The court of appeals observed that a
court must first find one of the statutory grounds for termination
listed in section 78A-6-507. Id. It then noted that both sections 78A-6-
503(12) and 78A-6-506(3) require that “even where statutory grounds
are present, [courts] must still ‘consider the welfare and best interest
of the child of paramount importance in determining whether
termination of parental rights shall be ordered.’” Id. ¶ 16 (citation
omitted).
_____________________________________________________________
4 After we heard oral arguments, the Utah Legislature amended
the Act. See H.B. 33, 63d Leg. 2020 Gen Sess. (Utah 2020). No party
has asked this court to consider the amendments nor argued that the
amendments have any impact on the issues before us. We cite the
version of these statutes in effect at the time of the petition. See
Harvey v. Cedar Hills City, 2010 UT 12, ¶ 12, 227 P.3d 256 (noting that
as “a general rule . . . we apply the version of the statute that was in
effect at the time of the events” giving rise to the suit).
We highlight, however, that the Legislature amended section 507
to read, “Subject to the protections and requirements of Section 78A–
6–503, and if the court finds termination of a parent’s parental rights,
from the child’s point of view, is strictly necessary, the court may
terminate all parental rights with respect to the parent if the court
finds any one of the following: . . . .” Id. (emphasis added). As
discussed below, the “from the child’s point of view” language was
likely borrowed from the court of appeals’ decision in this matter.
Infra ¶ 63.
The Legislature also added a subsection (b) to subsection 503(12)
which reads, “In determining whether termination is in the best
interest of the child, and in finding that termination of parental
rights, from the child’s point of view, is strictly necessary, the court
shall consider, among other relevant factors, whether: (i) sufficient
efforts were dedicated to reunification in accordance with Subsection
78A–6–507(3)(a); and (ii) the efforts to place the child with kin who
have, or are willing to come forward to care for the child, were given
due weight.” Id.8
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¶27 The court of appeals next discussed the 2012 amendment
that permits a court to terminate parental rights only if the court
finds that termination is “strictly necessary.” Id. ¶ 17. The court of
appeals expressed concern that no court had yet examined how that
addition impacts the established test. Id. ¶ 19. And it analyzed how
the addition of that language “affected the historical two-part test for
termination of parental rights.” Id.
¶28 In so doing, the court of appeals addressed the correctness of
a line of its own cases. Id. ¶¶ 20–44. Those cases suggested that once
grounds for termination were found, it followed “almost
automatically” that termination would be in the best interest of the
child. Id. ¶ 20. The court of appeals noted that these cases had, in
some instances, distorted the best interest analysis and shifted the
burden of proof to the respondent. Id. ¶¶ 13, 24. Because it saw the
almost automatically cases as inconsistent with the statutory
language, the court of appeals disavowed them. Id. ¶ 44.
¶29 Then, “unconstrained by [this inconsistent precedent],” id.
¶ 45, the court of appeals addressed the strictly necessary language.
The court of appeals held the strictly necessary language did not add
a third prong to the test, as Father contended. Id. ¶ 46. The court of
appeals opined that whether a particular termination was strictly
necessary should be considered as part of the best-interest inquiry.
Id. It stated that “[t]he ‘best interest’ test . . . is intended as a holistic
examination of all of the relevant circumstances that might affect a
child’s situation,” id. ¶ 47, including “whether termination of a
parent’s rights is actually necessary,” id. ¶ 48.
¶30 The court of appeals indicated that to assess whether
termination is strictly necessary, the statute “requires courts to
explore whether other feasible options exist that could address the
specific problems or issues facing the family, short of imposing the
ultimate remedy of terminating the parent’s rights.” Id. ¶ 55. And it
rejected Father’s argument that termination could only be strictly
necessary when an adoption or similar change in a child’s permanent
living situation is pending. Id. ¶ 56.
¶31 However, the court of appeals also noted the policy
statements the Legislature added to section 503 in the 2012
amendment. The court of appeals concluded that in light of this
legislative policy, “courts should not forget the constitutional
dimension of the parental rights on the other side of the ledger.” Id.
¶ 55. It then remanded to the juvenile court for reconsideration in
light of its interpretation of the statutes. Id. ¶ 63.
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In re B.T.B and B.Z.B.
Opinion of the Court
¶32 With the statutory framework and the court of appeals’
interpretation in mind, we review the issues presented on certiorari.
III. The Court of Appeals Did Not Err in
Disavowing the Almost Automatically Case Law
¶33 The GAL first argues that the court of appeals erred when it
disavowed its almost automatically case law. And it claims that the
court erred in two different ways. First, the GAL argues that it was
not proper for the court of appeals to opine on the validity of the
almost automatically case law because that issue was not before the
court. Second, the GAL argues that the court of appeals incorrectly
described the best interest inquiry in the course of analyzing that
case law.
A. The Court of Appeals Properly Addressed
the Almost Automatically Case Law
¶34 According to the GAL, the vitality of the almost
automatically cases was not properly before the court of appeals
because the parties made only peripheral mention of that authority
to the juvenile court. Moreover, claims the GAL, the juvenile court
did not rely on the almost automatically cases to reach its decision.
This prompts the GAL to contend that the court of appeals had no
business picking fights with case law that was neither raised in the
juvenile court proceedings nor the basis of the juvenile court’s
decision. 5
¶35 In a gambit only someone on appellate Twitter could love,
Father counters the GAL’s preservation argument with a claim that
the preservation question is outside the scope of our grant of
certiorari. Father notes that Utah Rule of Appellate Procedure 49
provides that on certiorari “[o]nly the questions set forth in the
petition or fairly included therein will be considered by the Supreme
Court.” UTAH R. APP. P. 49(a)(4). And Father uses that rule to argue
that preservation is not a question fairly included within our grant of
certiorari.
¶36 We have been less than impressed with arguments like
those Father advances here. We have observed that on certiorari,
“we review for correctness the decision of the court of appeals.”
_____________________________________________________________
5 Father faults the GAL for not objecting when the court of
appeals asked for supplemental briefing on the almost automatically
case law. Because we ultimately reject the GAL’s argument, we need
not address Father’s concern that the GAL waived it.
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Pulham v. Kirsling, 2019 UT 18, ¶ 18, 443 P.3d 1217 (citation omitted)
(internal quotation marks omitted). “The correctness of the court of
appeals’ decision turns, in part, on whether it . . . correctly assessed
preservation of the issues before it.” Id. (alteration in original)
(citation omitted). The GAL is therefore not prohibited from raising
questions of preservation on certiorari. They are fairly included in
the question on which we granted review.
¶37 Although properly before us, we dismiss the GAL’s
preservation concerns without breaking a sweat. The parties asked
the court of appeals to interpret the Act. This required the court of
appeals to decide what the Legislature meant when it added the
words “strictly necessary” to the Act. In the course of doing that, the
court of appeals observed that its case law might be at odds with the
statutory mandate.
¶38 The court of appeals realized that the parties had not briefed
the relationship between the almost automatically cases and the 2012
amendment to the Act, and it provided the parties an opportunity to
address the question through supplemental briefing. After review of
that briefing, the court of appeals decided it needed to disavow
portions of its case law. The court of appeals acted correctly each
step of the way.
¶39 The GAL is correct that “[w]hen a party fails to raise and
argue an issue in the trial court, it has failed to preserve the issue,
and an appellate court will not typically reach” it. State v. Johnson,
2017 UT 76, ¶ 15, 416 P.3d 443. 6 But even if the fleeting references
_____________________________________________________________
6 The GAL relies on Johnson to argue that “[t]he court of appeals
. . . dwell[s] on unpreserved issues going to best interests including
the constitutional dimensions of best interests, its burden of proof, its
burden of production, and the relevancy of best-interest evidence.”
However, in Johnson the appellant appealed his conviction based on
two alleged errors. 2017 UT 76, ¶ 3. The court of appeals reversed
Johnson’s conviction based on a third error that the appellant had
not raised. Id. ¶ 4. We determined that the court of appeals erred in
reversing the conviction based on an error that was both
unpreserved below and waived on appeal. Id. ¶ 63.
Here, the court of appeals addressed the issue Father raised on
appeal. Father argued that that juvenile court had misapplied the
Act, In Interest of B.T.B., 2018 UT App 157, ¶ 45, and that “the
juvenile court erred by determining that termination of his rights
was in the Children's best interests or strictly necessary.” Id. ¶ 58.
(continued . . .)
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In re B.T.B and B.Z.B.
Opinion of the Court
made to the almost automatically language in the juvenile court did
not preserve the issue, the court of appeals recognized that its
interpretation of the Act would be at loggerheads with its case law.
¶40 When interpreting a statute, a court is not bound to rely
only on information the parties provide. Stated differently, the
parties cannot force a court into a strained interpretation of a statute
by the arguments they advance. A court’s duty is to get the law right
and parties cannot push us off that path.
¶41 To take an extreme example, the parties could not, by
eschewing arguments based upon a statute’s text, prevent the court
from basing its interpretation on the statute’s plain language. See
State v. Hatfield, 2020 UT 1, ¶ 16, 462 P.3d 330 (describing that we
start with a statute’s plain language to understand its meaning).
Similarly, a party cannot prevent the court from employing certain
canons of construction by failing to argue them. See State v. Garcia,
2017 UT 53, ¶ 52, 424 P.3d 171 (holding that an appellate court was
not deprived of the ability to employ a canon of interpretation
because the party had not raised that canon in its briefing).
¶42 Here, in interpreting the Act, the court of appeals looked at
how the language the Legislature added to the statute changed the
law. In Interest of B.T.B., 2018 UT App 157, ¶¶ 19–20. And it
questioned whether some of its case law could coexist with the
amended Act. Id. ¶¶ 20–22. After comparing the almost
automatically cases with the statutory language, the court of appeals
determined that those cases were inconsistent with the Act. See id.
¶ 44. To remedy that, the court of appeals disavowed those cases to
the extent they conflicted with the statute. Id. This is what we want
our courts to do. We therefore disagree with the GAL that the court
of appeals was barred from addressing the almost automatically line
of cases. 7
The court of appeals opinion discusses just that—whether the
juvenile court interpreted and applied the new statutory language
correctly. Thus, unlike in Johnson, here the court of appeals was
answering a preserved question the parties advanced.
7 The GAL also asserts that it was not necessary to disavow these
cases for two reasons. First, the almost automatically language was
an observation, not a rule. And second, none of the disavowed cases
had relied on the almost automatically reasoning to reach a decision.
(continued . . .)
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¶43 Contrary to the GAL’s criticisms, the court of appeals
should be lauded for its careful analysis and its commitment to
cleaning up what could have been problematic case law had it been
permitted to linger in the jurisprudence.
B. The Court of Appeals Did Not Err When it
Described the Best Interest Inquiry as a Second
Element of the Termination Inquiry
¶44 The GAL next argues that, in the process of disavowing the
almost automatically cases, the court of appeals erred by treating the
best interest consideration as a second element in the termination
As to the first contention, the GAL may be correct that, in at least
one case, the almost automatically language was a practical
observation that a majority of the court did not rely on. See State, in
interest of J.D., 2011 UT App 184, ¶ 34, 257 P.3d 1062 (Orme, J.,
concurring). But as to the second, the GAL incorrectly asserts that no
court of appeals case has relied on that statement to reach a decision.
As the court of appeals noted, the concept first appeared in State in
Interest of J.R.T., 750 P.2d 1234 (Utah Ct. App. 1988) (holding that a
finding of abandonment satisfied the need to separately consider the
child’s best interests). And after the concurrence in J.D., the concept
mutated into a principle that other court of appeals panels employed
as a rule. See, e.g., State in Interest of Z.J., 2017 UT App 118, ¶¶ 9, 11,
400 P.3d 1230 (citing almost automatically case law to reject
respondent’s argument that there was insufficient evidence to
support a best interest finding); In re Adoption of A.M.O., 2014 UT
App 171, ¶¶ 20–22, 332 P.3d 372 (citing almost automatically case
law to decide that the trial court did not sufficiently support its
finding that termination would not be in the child’s best interest
“despite the existence of grounds for termination”).
The GAL also objects to the court of appeals disavowing In re
J.R.T., 750 P.2d 1234, for an additional reason. The GAL argues that
when In re J.R.T. was decided, the best interest analysis was not
statutorily required. This is true, but the court in In re J.R.T.
nonetheless recognized that the court was required to undertake a
best interest analysis before ordering termination. Id. at 1238. Thus
the In re J.R.T. court was still applying a grounds-then-best-interest
analysis when it stated that a finding of the abandonment ground
“satisfies the need separately to consider the best interest of the
child.” Id. The court of appeals therefore correctly disavowed that
holding as inconsistent with the Act. See In Interest of B.T.B., 2018 UT
App 157, ¶ 44.
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Opinion of the Court
analysis. The court of appeals stated that “parental rights can be
terminated only if both elements of a two-part test are satisfied.”
Interest of B.T.B., 2018 UT App 157, ¶ 13. “First,” the court of appeals
said, “a trial court must find that one or more of the statutory
grounds for termination are present.” Id. “Second, a trial court must
find that ‘termination of the parent’s rights is in the best interests of
the child.’” Id. (citation omitted). The court of appeals opined that
“[t]he trial court must make both of these findings not merely by
preponderance of the evidence, but by ‘clear and convincing
evidence,’ and the burden of proof rests with the petitioner.”
Id. (citations omitted).
¶45 The GAL argues the court of appeals erred by
“transform[ing] what was a statutory consideration into an element
requiring a clear and convincing level of proof.” The GAL’s
argument suggests two different questions. First, whether the Act
makes the best interest inquiry an element that a court must find
before it can order termination. Second, what burden of proof
attaches to the best interest analysis.
¶46 The GAL’s first argument falls at the hands of precedent. In
State ex rel. A.C.M., we stated, “In order to terminate parental rights,
the juvenile court must make two separate findings. First, it must
find grounds for termination under Utah Code section 78A–6–
507. . . . Second, the juvenile court must find that termination of the
parent’s rights is in the best interests of the child.” 2009 UT 30, ¶ 23,
221 P.3d 185 (citations omitted); see also State ex rel. T.E., 2011 UT 51,
¶ 17, 266 P.3d 739. A.C.M. was not groundbreaking; Utah courts
have, over the last half century, referenced the termination process
as a two-step inquiry a multitude of times. 8 The GAL does not
_____________________________________________________________
8 See, e.g., State ex rel. T.E., 2011 UT 51, ¶ 17, 266 P.3d 739; In re
Castillo, 632 P.2d 855, 857 (Utah 1981); In Interest of Winger, 558 P.2d
1311, 1313 (Utah 1976); In re State in Interest of L.J.J., 360 P.2d 486, 488
(Utah 1961); State ex rel. B.M.S., 2003 UT App 51, ¶ 6, 65 P.3d 639;
State ex rel. R.A.J., 1999 UT App 329, ¶ 22, 991 P.2d 1118; State in
Interest of G.D.., 894 P.2d 1278 (Utah Ct. App. 1995); State in Interest of
R.N.J., 908 P.2d 345 (Utah Ct. App. 1995), superseded and abrogated on
other grounds as recognized in In re Guardianship of A.T.I.G., 2012 UT 88,
¶ 20 n.11, 293 P.3d 276; State in Interest of M.W.H., 794 P.2d 27, 29
(Utah Ct. App. 1990).
14
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engage with this case law. 9
¶47 The GAL’s second argument raises a more interesting
question. In essence, the GAL claims the court of appeals misstated
the test when it explained that a petitioner must establish that
termination is in the child’s best interest under a clear and
convincing standard. The Act’s plain language can be read to
support the GAL’s argument.
¶48 Subsection 506(3) of the Act states that “[t]he court shall in
all cases require the petitioner to establish the facts by clear and
convincing evidence.” UTAH CODE § 78A-6-506(3). The statute thus
places the burden on the petitioner to establish the facts that would
justify termination by clear and convincing evidence. For example, if
a petition is based on the premise that the court should terminate a
parent’s right because the respondent has neglected her child, the
petitioner is required to prove that the respondent parent had
neglected her child. And the petitioner needs to make this showing
with clear and convincing evidence.
¶49 The statute could be read, as the GAL appears to do here, to
say that whether termination is in a child’s best interest is a
determination the Legislature has assigned to the court reviewing
the petition. Under this reading, the court must decide, based on
those facts that have been established by clear and convincing
evidence, whether termination is in the child’s best interest. See id. In
other words, the Act’s language can be read to not impose on the
petitioner a burden of persuading the court, under a clear and
convincing standard, that termination is in the best interests of the
child.
¶50 The GAL’s argument is made all the more intriguing by the
fact that this court appears to have not addressed in case law the
_____________________________________________________________
9 Although the GAL does not address the relevant precedent, it
raises an interesting argument based upon the Act’s language.
Subsections 503(12) and 506(3) require that after the court finds a
ground for termination, “the court shall then consider the welfare
and best interest of the child of paramount importance in
determining whether termination of parental rights shall be
ordered.” Thus, the Act alone does not explicitly characterize best
interest as an element that a party must prove.
However, a two-step analysis has long been a hallmark of our
case law. As mentioned above, the GAL does not address that case
law, let alone ask us to overturn it.
15
In re B.T.B and B.Z.B.
Opinion of the Court
question of the burden the Act imposes with respect to the best
interest showing. In fact, we have at times described the Act in a
fashion consistent with the way the GAL reads the statute. For
example, in State ex rel. T.E. this court outlined that “[f]irst, the
juvenile court must find by clear and convincing evidence that there
is a permissible ground for termination.” 2011 UT 51, ¶ 17 (footnotes
omitted). But in describing the best interest inquiry, we stated that
the court is required to “conclude that termination of parental rights
is in the best interest of the child” without reference to a burden of
persuasion or proof. Id. ¶ 18.
¶51 The court of appeals, on the other hand, has expressly
interpreted the Act to require the best interest finding be made by
clear and convincing evidence. See, e.g., State, in interest of F.B., 2012
UT App 36, ¶ 2, 271 P.3d 824; State, in interest of J.D., 2011 UT App
184, ¶ 11, 257 P.3d 1062; State ex rel. C.K., 2000 UT App 11, ¶ 23, 996
P.2d 1059; State ex rel. R.A.J., 1999 UT App 329, ¶ 7, 991 P.2d 1118;
State in Interest of R.N.J., 908 P.2d 345, 351 (Utah Ct. App. 1995). For
example, in State ex rel. C.K., the court of appeals reviewed the
decision of a juvenile court to not terminate parental rights. 2000 UT
App 11, ¶ 1. Citing the language now present in sections 503 and 506
of the Act, the court of appeals held that a “court must find that
termination of parental rights serves the best interests of the child.
[And that] finding must be based on clear and convincing evidence.”
Id. ¶ 18. The court of appeals concluded, “The [petitioner] did not
satisfy its burden to present clear and convincing evidence as to why
terminating [parental] rights was in the best interests of [the
children.]” Id. ¶ 24 (emphasis added).
¶52 Furthermore, reading the Act to require proof of best
interest by clear and convincing evidence is consistent with the way
this court described the common law best interest inquiry. The
child’s best interest had long been “the consideration of paramount
importance” that could justify the State interfering with a parent’s
rights in the child. In re J. P., 648 P.2d 1364, 1367 (Utah 1982) (citation
omitted); see also In Interest of Winger, 558 P.2d 1311, 1313 (Utah
1976); In re Bradley, 167 P.2d 978, 984 (Utah 1946) (holding that a
party needed to convince the trier of fact that termination was in a
child’s best interest before the court could terminate parental rights
or award custody to a non-parent). We recognized the common
law’s “strong presumption” that it is in the best interest of the child
to be raised by her natural parents and that this presumption must
be overcome before parental rights could be terminated. In re Castillo,
632 P.2d 855, 856-57 (Utah 1981). We held that determination must
be made by clear and convincing evidence. Id. at 857.
16
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¶53 Finally, our Rules of Juvenile Procedure contemplate that
best interest must be proved by clear and convincing evidence. Utah
Rule of Juvenile Procedure 41(b) provides: “The burden of proof in
matters brought before the juvenile court shall be as follows: . . .
cases involving the permanent deprivation of parental rights must be
proved by clear and convincing evidence unless otherwise provided
by law.” 10
_____________________________________________________________
10 On top of all that, the clear and convincing standard might be
constitutionally mandated. In Santosky v. Kramer, the United States
Supreme Court held that “[b]efore a State may sever completely and
irrevocably the rights of parents in their natural child, due process
requires that the State support its allegations by at least clear and
convincing evidence.” 455 U.S. 745, 747–48 (1982).
In Santosky, the Supreme Court considered a challenge to a New
York statute requiring a finding that a child was neglected before
parental rights could be terminated. Id. at 747. Under the statute,
however, that finding only needed to be made by a preponderance
of the evidence. Id. The Supreme Court held that this low burden
violated the parent’s due process rights and that, to pass
constitutional muster, the court needed to base that finding on clear
and convincing evidence. Id. at 747–48.
Some state courts have interpreted Santosky to require the clear
and convincing standard to apply to statutory requirements not
addressed in Santosky. See, e.g., In re Daniel C., 480 A.2d 766, 771 (Me.
1984) (“The majority of cases we have reviewed simply apply the
Santosky requirement of clear and convincing evidence to whatever
statutory elements the legislature has provided.”); In re D.C., 71 A.3d
1191, 1198 (Vt. 2012) (“In other words, the Santosky holding stands
for the proposition that whatever measure of ‘unfitness’ a state
requires to terminate parental rights must be shown by clear and
convincing evidence. The Vermont Legislature has chosen the best-
interests criteria . . . which encompass both directly and indirectly
the question of parental fitness.”) Other states have read Santosky
more narrowly and concluded that the clear and convincing
standard is only required when a court evaluates parental unfitness
and not when it considers what outcome is in a child’s best interest.
See Kent K. v. Bobby M., 110 P.3d 1013, 1020 (Ariz. 2005); In re D.T.,
818 N.E.2d 1214, 1225 (Ill. 2004).
Relying on Santoksy, this court held in In re J.P. that a finding of
parental unfitness by clear and convincing evidence was required
before parental rights could be terminated. 648 P.2d at 1377. But, as
(continued . . .)
17
In re B.T.B and B.Z.B.
Opinion of the Court
¶54 The GAL has raised a very interesting and important
question. It has not, however, engaged with the full panoply of
authorities with which we would need to grapple before we could
decide that the court of appeals erred by saying that a court must
find that termination is in the child’s best interest by clear and
convincing evidence.
IV. Termination Must Be Strictly Necessary to
Promote the Best Interest of the Child
¶55 The GAL and Father both seek review of the court of
appeals’ interpretation of the language the Legislature added to the
Act in 2012—that “if the court finds strictly necessary” the court may
terminate parental rights. UTAH CODE § 78A-6-507(1). The court of
appeals held that a court must determine if termination is strictly
necessary as part of its consideration of the best interest of the child.
In Interest of B.T.B., 2018 UT App 157, ¶ 50, 436 P.3d 206.
¶56 The GAL contends that the court of appeal erred by tying
strictly necessary to the best interest analysis. The GAL does not,
however, offer an alternate interpretation of that language. Father,
on the other hand, rejects the court of appeals’ interpretation and
avers that the language means the court must “first and
independently consider whether there are alternatives short of
termination that will adequately protect all of the interests at stake,”
including the parent’s interests.
¶57 Thus, the question becomes what did the Legislature intend
when it predicated termination on a finding that termination is
the court of appeals observed, we have not squarely addressed
whether Utah’s best interest inquiry is constitutionally required, and
thus we have not had to address the related question of whether the
clear and convincing standard is likewise a constitutional
requirement. See In Interest of B.T.B., 2018 UT App 157, ¶ 14 n.1. We
note, however, that in In re Estate of S.T.T., this court considered
what must be shown to rebut the presumption that the parent’s
decision regarding grandparent visitation is in the child’s best
interest. 2006 UT 46, ¶ 28, 144 P.3d 1083. Relying on Santosky, we
held that “[b]ecause the parental presumption deals with parental
liberty interests, and accordingly should be afforded great deference
by the courts, we conclude that a clear and convincing standard of
proof should apply to satisfy due process requirements.” Id.18
Cite as: 2020 UT 36Opinion of the Court
strictly necessary. To answer this question, we start with the statute’s
plain language.
¶58 As noted above, section 78A-6-507 states, “Subject to the
protections and requirements of Section 78A-6-503, and if the court
finds strictly necessary, the court may terminate all parental rights
with respect to a parent if the court finds” one of the nine
enumerated grounds for termination. (Emphasis added.)
¶59 Confusion emerges because the Legislature does not
obviously identify for what purpose the court should find
termination “strictly necessary.” 11 Stated differently, the language
“strictly necessary” cannot exist in a vacuum. Termination must be
strictly necessary to achieve some end. But section 507 does not
identify that end.
¶60 Interpreting the Act as a whole reveals the answer—
termination must be strictly necessary to promote the child’s best
interest. Subsection 507(1) mandates that the court’s termination
analysis is “[s]ubject to the protections and requirements of Section
78A-6-503.” In section 503, the Legislature details a number of
_____________________________________________________________
11 The court of appeals analyzed the strictly necessary language
by looking to the dictionary definitions of these words. After
examining the dictionary, the court determined that courts should
terminate rights only when it is “absolutely essential.” In Interest of
B.T.B., 2018 UT App 157, ¶¶ 52–54.
As explained above, the statute’s lack of clarity does not arise
because the words themselves are not easily understood. Strictly
necessary is no less understandable than the phrase absolutely
essential. And we do not believe that the bar and bench are well
served by the suggestion that a juvenile court should find that
termination is absolutely essential in order to conclude that the
termination is strictly necessary. As noted, the confusion comes not
from the words themselves but because the statute does not
immediately say for what purpose termination should be strictly
necessary. Hence, we think it sufficient to leave the statutory words
as they are and not contemplate synonyms. Otherwise we are just
swapping the words the Legislature chose for words that it did not.
As we have observed, “[l]anguage matters and, over time, even
small variations can take on lives of their own and distort the
analysis.” State v. Gallegos, 2020 UT 19, ¶ 58; --P.3d --. In light of that,
a juvenile court’s inquiry should address whether termination is
strictly necessary to promote a child’s welfare and best interest.
19
In re B.T.B and B.Z.B.
Opinion of the Court
important policy statements that a court must keep front of mind
when deciding what is in a child’s best interest. For example, the
Legislature recognized that the “interests of the state favor
preservation and not severance of natural familial bonds in
situations where a positive, nurturing parent-child relationship can
exist, including extended family association and support.” UTAH
CODE § 78A-6-503(10)(d). And, lest there be any question about the
manner in which the Legislature believed the state should wield the
power to dissolve parental bonds, the Act states “[w]herever
possible, family life should be strengthened and preserved.” See id.
§ 78A-6-503(12).
¶61 But the Legislature finishes the sentence that begins
“[w]herever possible, family life should be strengthened and
preserved” with the instruction that “if a parent is found . . . to be
unfit or incompetent based upon any of the grounds for
termination,” “the welfare and best interest of the child” should be
considered “of paramount importance in determining whether
termination of parental rights shall be ordered.” Id. Thus, once a
statutory ground for termination is found, identifying the option for
the child that promotes her welfare and best interest takes
precedence over the other considerations. 12
¶62 Therefore, although section 507 does not expressly say to
what end a court should find termination is “strictly necessary,”
section 503 directs that the purpose of the termination proceeding is
to promote the welfare and best interest of the child. Thus, if a court
finds statutory grounds for termination, the court must determine if
termination is strictly necessary for the welfare and best interest of
the child.
_____________________________________________________________
12 This conclusion follows from the Legislature’s choice of the
word paramount. Paramount, MERRIAM-WEBSTER ONLINE, https://
www.merriam-webster.com/dictionary/paramount (defining
“paramount” as “superior to all others”); Paramount, CAMBRIDGE
DICTIONARY ONLINE, https://dictionary.cambridge.org/us/
dictionary/english/paramount (defining “paramount” as “more
important than anything else”). Thus, when the Legislature
instructed that the court should 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.
20
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¶63 As the court of appeals stated, this analysis “should be
undertaken from the child’s point of view, not the parent’s.” In
Interest of B.T.B., 2018 UT App 157, ¶ 54. 13 However, the court of
appeals also stated that “in [doing the best interest analysis,] courts
should not forget the constitutional dimension of the parental rights
on the other side of the ledger.” Id. ¶ 55. And in briefing to this court,
Father similarly argues that once grounds are found, the court must
consider whether to terminate parental rights while considering the
interests of both the parent and the child.
¶64 We agree that the welfare and best interest analysis should
be undertaken from the child’s point of view. But we reject the
proposition that the juvenile court is to, at the best interest stage,
weigh a parent’s constitutional rights against the child’s welfare and
best interest. If a court has adhered to the statutory framework, a
parent’s constitutional rights will have received substantive and
procedural protections throughout the process. And the parent’s
constitutional rights will continue to receive protection during the
best interest inquiry through the strictly necessary requirement and
the clear and convincing standard. But when the court considers a
child’s welfare and best interest, the court’s focus should be firmly
fixed on finding the outcome that best secures the child’s well-being.
¶65 That is not to say that the role of a natural parent is
irrelevant to the best interest inquiry. Quite to the contrary, the
Legislature has made clear that, as a matter of state policy, the
default position is that “[i]t is in the best interest and welfare of a
child to be raised under the care and supervision of the child’s
natural parents,” and that a “child’s need for a normal family life in a
permanent home, and for positive, nurturing family relationships is
usually best met by the child’s natural parents.” UTAH CODE § 78A-6-
503(8). Indeed, the Legislature recognizes a “right of the child to be
reared by the child’s natural parent.” Id. § 78A-6-503(4). For these
reasons, the Legislature has required that a court only terminate
parental rights when it is strictly necessary to promote a child’s
welfare and best interest.
¶66 In other words, a court must start the best interest analysis
from the legislatively mandated position that “[w]herever possible,
_____________________________________________________________
13 We also note, by way of reminder, that the Legislature
incorporated the requirement that the strictly necessary analysis
proceed from the child’s point of view into the statute in a 2020
amendment. See supra ¶ 25 n.4.
21
In re B.T.B and B.Z.B.
Opinion of the Court
family life should be strengthened and preserved.” Id. § 78A-6-
503(12). A court may then terminate parental rights only when it
concludes that a different option is in the child’s best interest and
that termination is strictly necessary to facilitate that option. If the
child can be equally protected and benefited by an option other than
termination, termination is not strictly necessary. And the court
cannot order the parent’s rights terminated.
¶67 As the court of appeals eloquently stated,
[T]his part of the inquiry also requires courts to explore
whether other feasible options exist that could address
the specific problems or issues facing the family, short
of imposing the ultimate remedy of terminating the
parent's rights. In some cases, alternatives will be few
and unsatisfactory, and termination of the parent’s
rights will be the option that is in the child’s best
interest. But in other cases, . . . courts should consider
whether other less-permanent arrangements . . . might
serve the child's needs just as well . . . .
In Interest of B.T.B., 2018 UT App 157, ¶ 55.
¶68 The GAL avers that the court of appeals’ construction of
“strictly necessary,” especially with the attention it pays to
alternatives to termination, runs counter to the goal of providing
children with permanency. See State in Interest of K.C., 2015 UT 92,
¶ 27, 362 P.3d 1248 (“Children have an interest in permanency and
stability.”); State in interest of M.H., 2014 UT 26, ¶ 44, 347 P.3d 368(Nehring, A.C.J., concurring) (“Indeed, the policy underlying the
Child Welfare Reform Act is one of swift permanency.” (citation
omitted) (internal quotation marks omitted)).
¶69 However, the GAL’s argument misses that the policy of
permanence and the statutory language, as the court of appeals
accurately described it, are not mutually exclusive. A court deciding
whether termination is strictly necessary for the child’s best interest
would consider a child’s need for permanence as part of that inquiry.
The strictly necessary language is designed to ensure that the court
pause long enough to thoughtfully consider the range of available
options that could promote the child’s welfare and best interest.
¶70 The State, as amicus, also raised a concern about the court of
appeals’ suggestion that courts look to “less permanent
arrangements.” Specifically, the State worries that this instruction
runs contrary to the State’s express statutory requirements to achieve
permanence for children. (Citing, e.g., 42 U.S.C. § 675(5)(C)
22
Cite as: 2020 UT 36Opinion of the Court
(discussing federal permanency timelines); UTAH CODE § 78A-6-314
(establishing mandatory state permanency timelines); UTAH CODE
§ 62A-4a-105(1)(g) (requiring DCFS to enforce federal laws for
protection of children)).
¶71 But the court of appeals’ analysis must be read in the context
in which it arose. As the court of appeals notes, a parent, and not the
State, filed the termination petition here. Such private termination
proceedings do not involve the same services and timelines
regarding permanency that would usually be required if the State
were involved. See UTAH CODE § 78A-6-314. And private termination
proceedings lack many of the parental protections that are built into
the process when the State seeks termination of parental rights. 14
That means that in cases like this, the best interest analysis may be
the only real opportunity for the court to consider whether
something short of termination would serve the child’s welfare and
best interest. 15 We do not read the court of appeals decision to
suggest that the strictly necessary finding is an invitation to disrupt
the timelines and permanency goals at play when the State petitions
for termination. 16
_____________________________________________________________
14 For example, as the court of appeals stated, “[i]n private cases
where a petitioner seeks to terminate the rights of a non-custodial
parent, . . . no statute requires the court to even consider whether to
implement reunification services, and often no infrastructure is in
place through which to offer any such services in any event.” In
Interest of B.T.B., 2018 UT App 157, ¶ 23 n.6.
15 See id. (“A rigorous ‘best interest’ analysis sometimes presents
the only meaningful opportunity that parents have to demonstrate to
the court that, despite the existence of a statutory ground for
termination, they have been recently engaged in significant efforts to
improve their lives and remedy their past issues.”).
16 The State avers that the cases that have been decided since
B.T.B. suggest that the court of appeals did not “upend the
termination equation” and “that B.T.B. does not represent the sort of
wholesale impediment to termination of parental rights that the
[GAL] would suggest.” Those cases are not before us, and we are
therefore in no position to opine on whether they are correctly
decided, but we are nonetheless heartened by the suggestion that, at
least from the State’s perspective, the court of appeals’ decision in
B.T.B. is not causing the problems the GAL predicts.
23
In re B.T.B and B.Z.B.
Opinion of the Court
¶72 The GAL is also concerned that a juvenile court would not
have jurisdiction to consider options other than termination when
the matter originates in a private petition to terminate rights. But
when a juvenile court has jurisdiction of a minor under Utah Code
Section 78A-6-103, that court “has jurisdiction over questions of
custody, support, and parent time of [the] minor.” UTAH CODE
§ 78A-6-104(5). We have recognized that a juvenile court considering
a termination petition possesses jurisdiction over questions of
custody, support, and parent-time. See A.S. v. R.S, 2017 UT 77, ¶ 2,
416 P.3d 465. Thus, a juvenile court is empowered to consider the full
range of options that it might employ to promote a child’s welfare
and best interest.
¶73 Father, on the other hand, argues (1) that the strictly
necessarily language creates a separate element, and (2) that a court
must consider whether termination is strictly necessary before it
considers whether grounds for termination are present.
¶74 As to the first contention, Father primarily argues that if
strictly necessary is not treated as a separate element of the inquiry,
it risks becoming lost to the point of becoming superfluous. We take
Father’s point; the Legislature added this requirement to the statute
and a court must consider whether termination is strictly necessary.
We disagree, however, with Father’s contention that the only way to
ensure a court finds that termination is strictly necessary is to make
it a separate element. As discussed above, the language is not
rendered superfluous by being part of the best interest analysis. It
still requires the court to find, on the record, that no other option can
achieve the same welfare and best interest for the child. Supra ¶¶ 65–
67.
¶75 Even assuming, hypothetically, that the Legislature
intended strictly necessary to be a separate element, Father points to
nothing in the text to support his second contention that the
Legislature intended that a court address whether termination was
strictly necessary as the first step of the analysis. And we see nothing
in the Act to support that contention either.
¶76 We agree with the court of appeals that the amendment to
the Act did not create a third element to the termination analysis.
Rather, after sufficient grounds for termination have been found, the
court must assess what is in the child’s best interest. And as part of
that inquiry, a court must specifically address whether termination is
strictly necessary to promote the child’s welfare and best interest.
24
Cite as: 2020 UT 36Opinion of the Court
V. The Court of Appeals Did Not Err in
Remanding to the Juvenile Court
¶77 Finally, the GAL claims that the court of appeals went too
far after rejecting the Father’s reading of “strictly necessary.”
According to the GAL, the court of appeals erred by construing
Father’s “strictly necessary” argument as going to the best interest
analysis and remanding to the juvenile court for reconsideration of
that portion of the termination inquiry because it had “clarified and
reformulated” the test.
¶78 Father only argued, the GAL asserts, that the strictly
necessary language was a separate prong and could only be met if an
adoption was pending. Having rejected that specific argument, the
GAL argues that the court of appeals’ work was done and that it
should have simply affirmed the termination order.
¶79 As we explained above, the parties cannot force a court into
a misinterpretation of the statute by the arguments they raise. Supra
¶¶ 40–41. In the course of rejecting Father’s interpretation of the
statute, the court of appeals opined on the Act’s correct
interpretation. Because the juvenile court had premised its order on
an undeveloped interpretation of the Act, the court of appeals
properly remanded for consideration under the correct legal
standard. We affirm the decision to remand to the juvenile court for
further proceedings but require that the juvenile court consider
Mother’s petition consistent with the interpretation of the statute we
have outlined.
CONCLUSION
¶80 The court of appeals did not err in disavowing the almost
automatically language in its case law. We reject Father’s argument
that the strictly necessary language adds a separate and
sequentially-primary element to the termination analysis. And we
affirm the court of appeals’ ultimate holding that the Act requires
that termination be strictly necessary for the best interests of the
child. We also affirm the court of appeals’ determination to remand
to the juvenile court. We instruct the juvenile court to revisit the
petition and apply the interpretation of the Act we have set forth in
this opinion.
25