A.T. v. State (In Re C.T.) , 438 P.3d 100 ( 2018 )

2018 UT App 233THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF C.T.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.
A.T.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20180435-CA
Filed December 20, 2018
Third District Juvenile Court, Salt Lake Department
The Honorable Julie V. Lund
No. 1137406
Sheleigh A. Harding, Attorney for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Jeannine Timothy, Guardian ad Litem
JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.
HAGEN, Judge:
¶1 A.T. (Mother) appeals the termination of her parental
rights as to C.T. (Child), arguing that termination was not in
Child’s best interest. Mother relies on this court’s recent decision
in In re B.T.B., 2018 UT App 157, contending that termination
was not strictly necessary because the juvenile court could have
allowed Mother’s parents (Grandparents) to have guardianship
of Child. In B.T.B, we concluded that a court may not find that
termination of parental rights is strictly necessary until it has
In re C.T.
considered or explored “less-permanent arrangements,” such as
custody or guardianship with a family member. Id. ¶ 55. Because
the juvenile court correctly applied our holding in B.T.B. by
exploring guardianship and custody with Grandparents before
terminating Mother’s parental rights, we affirm.
BACKGROUND
¶2 Mother is a minor who lives with Grandparents and her
five younger siblings. Mother has been a caretaker of her
younger siblings since she was eleven. When Mother was
thirteen, she was allegedly sex-trafficked by her older sister, and
became pregnant and contracted HIV as a result of rape by an
unknown man. At that time, the Division of Child and Family
Services (DCFS) took custody of Mother.
¶3 Mother gave birth to Child at the age of fourteen and was
returned to Grandparents’ custody. Shortly after the birth, DCFS
received a report that Mother had threatened to kill herself and
Child. DCFS found Mother and Child living in a park and placed
both in DCFS custody. 1 Mother denied that she intended to harm
Child but threatened to harm herself if forced to return to
Grandparents’ home at that time. DCFS filed abuse, neglect, and
dependency petitions as to Mother and Child. At a shelter
hearing in Child’s case, the juvenile court made findings that
Mother had been adjudicated incompetent to stand trial in a
1. Mother and Child remained in DCFS custody for a period of
weeks. Grandparents later received reunification services and
Mother was ultimately returned to their custody. Although
Mother’s and Child’s child protection cases were adjudicated
simultaneously, Grandparents’ fitness as parents to Mother is
not at issue in this appeal.
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previous delinquency matter and that she and Child should
remain in DCFS custody.
¶4 Mother and Child were placed by DCFS into a girls’
group home. While there, Mother engaged in multiple outbursts
in which she made ostensibly aggressive and threatening
comments toward Child. Mother also threatened to take her own
life again but later testified that she was just angry and that she
did not mean what she said. At one point during their stay at the
group home, Child was removed from Mother and taken to the
hospital because Child was dehydrated. The staff at the group
home indicated that Mother needed ongoing supervision
“regarding the most basic caregiving skills” for Child. The
psychologist who later evaluated Mother drew a similar
conclusion, testifying that Mother “does not have a bond with
[Child]” and “does not have the cognitive capacity to make
decisions for [Child] and keep her safe.”
¶5 Mother eventually returned to Grandparents’ home, but
Child was placed with foster parents, who were friends of
Mother and Grandparents. The juvenile court ordered
reunification with Mother as the primary permanency goal for
Child and adoption as the secondary goal. The court also
ordered reunification services for Mother that required her to
participate in “therapy to address her past trauma,” take
medication and monitor the progression of her HIV, attend
school, “work with her peer parent to gain parenting skills,” and
have supervised visitation with Child. DCFS also recommended
that Grandparents attend family therapy with Mother.
¶6 Although Mother attended individual therapy, she was
never given a psychological evaluation, and Mother and
Grandparents did not participate in family therapy. In addition,
Mother did not participate in peer parenting and failed to take
the medication as prescribed to address her HIV and emotional
issues. DCFS explained at Mother’s termination trial that it had
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failed to secure peer parenting resources because peer parenting
had been unsuccessful during Mother’s previous case.
¶7 After Mother failed to complete reunification services, the
court changed the primary permanency goal for Child to
permanent custody and guardianship with Grandparents. 2
Guardianship with Grandparents remained the primary
permanency goal for only one month. At the end of the
one-month period, DCFS requested that the primary goal be
changed to adoption, citing a number of ongoing concerns.
DCFS expressed concern about Child remaining in
Grandparents’ home because Grandparents had failed to make
sure that Mother attended medical appointments relating to her
HIV infection, had failed to ensure that Mother’s medication was
“filled and taken on a consistent basis,” had failed to participate
in peer parenting, and had allowed Mother’s older sister, who
allegedly sex-trafficked and assaulted Mother, back into the
home. DCFS was also concerned about Grandparents’ financial
ability to care for Child and the fact that the home was not kept
clean and only had one bathroom. Furthermore, although
Grandparents had placed Mother’s younger siblings in daycare,
there were still hours during the day where Mother was the
primary caregiver for her siblings. Thus, if Child was returned to
Grandparents’ home, Mother would also be caring for Child
without supervision during those times. Based on these
concerns, the juvenile court changed the primary permanency
goal for Child to adoption.
¶8 Following this final change to Child’s permanency goal,
Child remained in the care of her foster parents. Child bonded
2. Both parties acknowledge that the juvenile court was unable
to set the goal as adoption by Grandparents because
Grandparents are present in the United States under refugee
status and are therefore unable to legally adopt.
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with her foster parents and they expressed a desire to adopt.
Child’s foster parents also expressed a desire that Child continue
to have a relationship with her biological family and remain
connected to her heritage, “as long as it doesn’t cause her
anxiety, or angst, or confusion in any way that is harmful to her
growth and development.”
¶9 A few months after Child’s primary permanency goal was
changed to adoption, the juvenile court held a trial on the
termination of Mother’s parental rights. Upon hearing testimony
from a psychologist, Mother, DCFS, Child’s grandmother, and
Child’s foster mother, the court entered findings of fact and
conclusions of law and an order terminating Mother’s parental
rights. As grounds for termination, the court found that Mother
had neglected Child and was an unfit or incompetent parent.
The court also found that guardianship with Grandparents was
“untenable” because Mother, “as a child herself, was the child in
her home providing the [care-giving] to her younger siblings in
the home, and would therefore also, of necessity, be providing
the primary care to [Child],” despite Mother’s continuing
“emotional instability.” Because of Mother’s unfitness, and after
finding that termination of her parental rights was strictly
necessary, the court concluded that adoption was in Child’s best
interest.
¶10 Mother appeals.
ISSUE AND STANDARD OF REVIEW
¶11 Mother appeals the termination of her parental rights as
to Child, contending that the juvenile court erred in concluding
that termination was in Child’s best interest. “The ultimate
decision about whether to terminate a parent’s rights presents a
mixed question of law and fact.” In re B.T.B, 2018 UT App 157,
¶ 8 (quotation simplified). “We afford great deference to the
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juvenile court’s findings of fact and overturn the result only if
the facts are against the clear weight of the evidence,” but we
review the court’s “interpretation of the Termination of the
Parental Rights Act for correctness.” In re A.C.M., 2009 UT 30,
¶ 8, 221 P.3d 185.
ANALYSIS
¶12 Mother argues that “the juvenile court erred in
terminating [her] parental rights without fully exploring
whether [Child’s] best interests would be better served by
awarding permanent custody and guardianship of [Child] to
[Grandparents].” “To terminate parental rights, [a] juvenile court
must make two separate findings.” In re T.E., 2011 UT 51, ¶ 17,
266 P.3d 739 (quotation simplified). First, a “court must find by
clear and convincing evidence that there is at least one statutory
ground for termination.” Id.; see also Utah Code Ann. § 78A-6-507
(LexisNexis 2012) (setting forth grounds for termination).
Second, a court must “find that termination of the parent’s rights
is in the best interests of the child.” In re A.C.M., 2009 UT 30,
¶ 23, 221 P.3d 185. Because “the relationship between parent and
child is constitutionally protected,” In re J.P., 648 P.2d 1364, 1372
(Utah 1982) (quotation simplified), a court may only terminate
parental rights upon a finding that termination is “strictly
necessary” to the best interests of the child, Utah Code Ann.
§ 78A-6-507(1).
¶13 On appeal, Mother does not challenge the juvenile court’s
finding that there are statutory grounds for termination. Instead,
she challenges the court’s finding that termination was in Child’s
best interest and, specifically, that “it was strictly necessary to
terminate [her] parental rights given the existence of family
members who could have raised [Child].” To support this
argument, Mother relies on In re B.T.B, 2018 UT App 157. In that
case, this court addressed “whether [a] juvenile court correctly
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applied the ‘strictly necessary’ language to the historical test for
termination of parental rights.” Id. ¶ 7. In framing our
interpretation of the “strictly necessary” language, this court
discussed Utah’s legal standards for terminating parental rights
and our supreme court’s interpretation of those standards,
noting that “every indication from our legislature and our
supreme court demonstrates that our law has had, and continues
to have, a rigorous test” that must be met in order to terminate
parental rights. Id. ¶ 18. The court observed that the second step
of that rigorous test—the best interest analysis—“is broad, and is
intended as a holistic examination of all of the relevant
circumstances that might affect a child’s situation.” Id. ¶ 47.
Ultimately, the court concluded that “trial courts should analyze
whether termination of a child’s parent’s rights is ‘strictly
necessary’” “as part of the ‘best interest’ analysis required by the
second element of the two-part [termination] test.” Id. ¶ 50.
¶14 After concluding that the “strictly necessary” finding was
part of the best interest analysis, the court went on to define the
term as it operates in Utah Code section 78A-6-507. Id. ¶¶ 51–53.
Looking to dictionary definitions of “strictly” and “necessary”
and the legislature’s decision to place the two words together in
the statute, the court concluded that the statutory requirement
that courts find termination of parental rights “strictly
necessary” means that “the legislature intended for courts to
terminate parental rights only in situations when it is absolutely
essential to do so.” Id. ¶¶ 52–54. In order to make this finding,
courts must examine “all of the relevant facts and circumstances
surrounding the child’s situation, not just the specific statutory
grounds for termination.” Id. ¶ 55. As part of this examination,
courts must “explore whether other feasible options exist that
could address the specific problems or issues facing the family,
short of imposing the ultimate remedy of terminating the
parent’s rights” and “should consider whether other
less-permanent arrangements (for instance, a guardianship with
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a family member) might serve the child’s needs just as well in
the short term, while preserving the possibility for rehabilitation
of the parent-child relationship in the longer term.” Id.¶15 It is this principle—that courts must consider alternatives
to termination and adoption such as guardianship with family
members—on which Mother’s claim of error rests. Mother
contends that the juvenile court failed to adequately explore
Child’s placement with Grandparents as an alternative to
termination and adoption. Although Mother acknowledges that
the juvenile court set permanent custody and guardianship of
Child with Grandparents as a permanency goal for a time,
Mother contends that no services were given to Grandparents
“to fully explore that goal.” Neither the State nor the Guardian
ad Litem dispute this contention, and the DCFS caseworker
admitted at the termination trial that neither Grandparents nor
DCFS made any progress toward the guardianship goal. But
nothing in B.T.B. suggests that certain services must be provided
before a juvenile court may determine that such alternatives are
not viable.
¶16 Instead, B.T.B. simply stands for the proposition that
juvenile courts must consider or explore alternatives to
termination of parental rights before they may find that
termination is “strictly necessary” to the best interests of the
child. See id. After this consideration, if a juvenile court
determines that no such alternatives are available or articulates
supported reasons for rejecting alternatives that do exist, such
findings are entitled to deference on appeal. Here, the juvenile
court not only considered guardianship with Grandparents, but
also made this arrangement a permanency goal in Child’s case. It
quickly became clear, however, that this arrangement was not in
Child’s best interest. During the time when custody and
guardianship with Grandparents was the permanency goal, the
juvenile court found that Mother was still in Grandparents’
home and was providing unsupervised child care for the
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younger siblings despite the fact that Mother’s “emotional
instability continued.” With these circumstances in mind, the
court changed the permanency goal to termination and
adoption. It determined that Child “could not and should not
return to” Mother and Grandparents’ home because Mother was
unfit to care for Child and Grandparents could not provide
adequate supervision. Thus, not only did the juvenile court
consider alternatives to termination, the court specifically
explored permanent custody and guardianship with family
members, but rejected those options for well-articulated reasons.
¶17 Contrary to Mother’s argument, nothing in this court’s
decision in B.T.B requires courts to do anything more than
“explore whether other feasible options exist” and “consider
whether other less-permanent arrangements . . . might serve
[Child’s] needs just as well” as termination of parental rights. Id.Here, the juvenile court did more than consider and explore an
alternative to termination; the court ordered custody and
guardianship with Grandparents as a permanency goal. Only
after exploring this placement and finding that this arrangement
was not in Child’s best interest did the court order termination
and adoption as Child’s permanency goal. Accordingly, because
the court did consider and explore alternatives before finding
that termination of Mother’s parental rights was necessary, we
affirm.
CONCLUSION
¶18 We reject Mother’s argument that DCFS was required to
provide additional services to Grandparents as guardians of
Child before the juvenile court could find that termination of
Mother’s parental rights was strictly necessary, and we affirm
the juvenile court’s finding that termination of Mother’s parental
rights was in Child’s best interest.
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