In re N.M. , 2018 UT App 141 ( 2018 )

2018 UT App 141THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF N.M.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.
E.M.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20170142-CA
Filed July 19, 2018
Fourth District Juvenile Court, Provo Department
The Honorable Brent H. Bartholomew
No. 1113723
Neil D. Skousen, Attorney for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES KATE A. TOOMEY and RYAN M. HARRIS concurred.
POHLMAN, Judge:
¶1 In this appeal, we are asked to address whether the
juvenile court properly terminated E.M.’s (Father) parental
rights to N.M. (Child). For the reasons explained below, we
affirm.
In re N.M.
BACKGROUND
Child’s Removal and the Initial Permanency Proceedings
¶2 In an April 2015 shelter proceeding, the juvenile court
determined that Child’s removal from Father and Child’s mother
(Mother) was necessary and in Child’s best interest due to both
parents’ incarceration. The court thereafter adjudicated Child
neglected as to both Father and Mother, and it placed Child in
the custody of the Division of Child and Family Services (DCFS).
DCFS created a family plan for both Father and Mother and
recommended reunification as the primary permanency goal,
with Child’s adoption as the concurrent goal. The court accepted
the proposed plan as well as the stated goals and ordered DCFS
to make “reasonable effort to finalize the permanency goal.” In
November 2015, given Father’s and Mother’s respective lack of
progress, the court granted temporary custody and guardianship
of Child to his maternal grandparents (Maternal Grandparents),
subject to DCFS supervision. Child remained with Maternal
Grandparents from then on.
¶3 The court thereafter terminated reunification services for
both parents and, accordingly, in a September 2016 permanency
hearing, changed the permanency goal to adoption, with the
concurrent goal of permanent custody and guardianship with
Maternal Grandparents. The court also determined that Child’s
best interest required a petition for termination of parental rights
to be filed, and it ordered that such a petition be filed, and a
pretrial hearing held, within forty-five days. 1
1. The Utah Code provides that “[i]f the final plan for the minor
is to proceed toward termination of parental rights, the petition
for termination of parental rights shall be filed, and a pretrial
held, within 45 calendar days after the permanency hearing.”
Utah Code Ann. § 78A-6-314(9) (LexisNexis Supp. 2017).
20170142-CA 2 2018 UT App 141In re N.M.
¶4 Following the permanency order, the State filed a petition
for termination of parental rights (the TPR) as to both parents. In
it, the State recited the case history, which included the fact that
both parents had “serious” substance abuse problems and that
neither parent had remedied the circumstances that led to
Child’s out-of-home placement. The State asserted that it would
be in Child’s best interest for Father’s and Mother’s parental
rights to be terminated, that Child was in need of permanency,
and that Child needed to be available for adoption to achieve
that permanence. The court ordered the parents to participate in
mediation and set the TPR for a pretrial hearing on November
16, 2016.
The November 2016 Pretrial Hearing
¶5 At the pretrial hearing, rather than proceeding with the
TPR, the State moved to change the temporary custody in
Maternal Grandparents to permanent custody and guardianship
and to dismiss the TPR. The State declared that “there are some
burdens of proof . . . that would be very difficult to be able to
carry forward” and that its request “would be in the child’s best
interest.”
¶6 In response, the court noted that adoption was the
permanency goal in the case, and it heard from those present
regarding the State’s request to grant permanent custody and
guardianship to Maternal Grandparents. The State, the Guardian
ad Litem, and the parents agreed that permanent custody and
guardianship would be in Child’s best interest. Maternal
Grandparents stated that their desire was to adopt Child.
¶7 After hearing from those present, the court expressed
concern that granting the State’s request to “set the goal at
permanent custody and guardianship” would only delay the
proceedings and increase the uncertainty in Child’s life. The
court then stated:
20170142-CA 3 2018 UT App 141In re N.M.
[I]n this particular case I’m not ready to name
permanent custody and guardianship as the
permanency goal. We have a young child here of
tender age and young age, and I appreciate
everything that’s been said in this matter, but it’s
the Court’s decision what the permanency goal
should be. It very well may end up being
permanent custody and guardianship, but I don’t
have the evidence before me and I feel like I need
to hear that evidence.
¶8 Mother objected, stating that the court did have evidence
and knew “almost everything” about the case. The State also
objected, asserting that it did not think it could “carry the
burden of proof” if it went to trial on the TPR. In response, the
court stated,
[T]he Court set the permanency goal of adoption,
and we’ll hear the evidence that’s involved.
Whether you think the burden is there or not,
that’s the job for the Court to decide; and very well
it may not be, and I’ll make a decision for
permanent custody and guardianship, but there
isn’t a stipulation in this matter. The grandparents
have voiced their concerns and I want to hear the
evidence.
¶9 The court therefore denied the State’s request to dismiss
the TPR and order permanent custody and guardianship in
Maternal Grandparents, and it set the case for a termination trial
in January 2017.
The Pretrial Motions
¶10 Before the termination trial began, both the State and the
parents filed additional documents with the court. First, the State
filed a notice to withdraw the TPR. Next, Father and Mother
filed a joint rule 60(b) motion, asking the court to set aside its
20170142-CA 4 2018 UT App 141In re N.M.
November 16 order denying the State’s oral request to dismiss
the TPR. Father and Mother argued that the court should set
aside its order because the State conceded that it could not meet
its burden of proof at trial. The parents contended that the State,
not the court, decides which cases to file, litigate, and prosecute.
The parents also argued that requiring the State to proceed with
the termination trial effectively forced it to violate rule 3.1 of the
Utah Rules of Professional Conduct, which provides that a
lawyer “shall not bring or defend a proceeding, or assert or
controvert an issue therein, unless there is a basis in law and fact
for doing so.”
¶11 In the alternative, the parents argued that the court
should treat the State’s November 16 oral motion to dismiss the
TPR as a rule 41 notice of dismissal under the Utah Rules of Civil
Procedure. The parents claimed that, because the parties
stipulated to the dismissal of the TPR, the court lost jurisdiction
over the petition while still retaining jurisdiction to enter an
order of permanent custody and guardianship in line with the
court’s concurrent goal. The parents also noted that Maternal
Grandparents would be free to file their own termination
petition.
¶12 On January 17, 2017, the court denied the parents’
rule 60(b) motion and struck the State’s notice of withdrawal.
The Termination Trial
¶13 The case proceeded to the termination trial. On the second
day of trial, Mother advised the court that she wished to
relinquish her parental rights to Child to allow Maternal
Grandparents to adopt Child. The court took Mother’s voluntary
relinquishment under advisement. The State thereafter clarified
that, given Mother’s voluntary relinquishment, it had “no
misgivings about going forward with and putting on whatever
evidence was necessary to establish [Father’s] unfitness.” The
State explained that, although it had asserted in the November
20170142-CA 5 2018 UT App 141In re N.M.
2016 hearing that it did not have enough evidence to proceed
with a termination trial, its reservation applied only to the
evidence with respect to Mother, not to Father. The State
asserted that it had “never questioned the evidence with respect
to [Father],” that Father had “never done anything” to establish
his fitness as a parent, and that he accordingly was unfit. The
State ultimately contended that it was in Child’s best interest for
the court to grant the TPR with respect to Father.
¶14 In February 2017, the court entered a termination order,
terminating both Mother’s and Father’s parental rights as to
Child. The court accepted Mother’s voluntary relinquishment of
her parental rights. As to Father, the court determined that he
was an unfit parent and that it would be in Child’s best interest
to terminate Father’s parental rights. In doing so, the court noted
that, while having Child “in a permanent custody and
guardianship arrangement may be convenient for Father, . . . it is
not in [Child’s] best interest.” The court observed that Child
instead needed “the certainty and benefits that come with being
adopted.” Accordingly, the court determined that it was “strictly
and absolutely necessary to terminate parental rights so
Maternal Grandparents can adopt [Child],” and it ordered Child
to remain in Maternal Grandparents’ custody until he was
adopted.
¶15 Father appeals the juvenile court’s denial of his rule 60(b)
motion and the court’s termination of his parental rights as to
Child.
ANALYSIS
I. Failure to Accept the Parties’ Stipulation about the
Permanency Goal
¶16 Father first argues that the juvenile court erred “in
applying the law by failing to accept [the parties’] stipulation”
that it would be in Child’s best interest to change the
20170142-CA 6 2018 UT App 141In re N.M.
permanency goal from adoption to permanent custody and
guardianship with Maternal Grandparents. In particular, Father
claims that the juvenile court was “bound by the parties’
stipulation” and that the court erred in disregarding it.
¶17 Father’s request that the juvenile court honor the parties’
stipulation appeared in his joint rule 60(b) motion for relief from
the court’s November 2016 oral ruling, which the court denied
and later incorporated into the termination order. We generally
review both a court’s denial of a rule 60(b) motion and a refusal
to accept an alleged stipulation for an abuse of discretion. See
generally Fisher v. Bybee, 2004 UT 92, ¶ 7, 104 P.3d 1198(reviewing a denial of a rule 60(b) motion); Jensen v. Jensen, 2008
UT App 392, ¶ 6, 197 P.3d 117 (reviewing a district court’s
refusal to accept a stipulation). And here, we conclude that the
court did not exceed its discretion when it declined to adopt the
proffered stipulation. Father’s overall argument—that the
juvenile court was bound by the parties’ stipulation—is at odds
both with precedent establishing a juvenile court’s inherent
discretion to disregard stipulations that intrude upon its core
responsibilities and with the overarching purpose of juvenile
courts in protecting a child’s best interest throughout child
welfare and permanency proceedings.
¶18 The Utah Supreme Court has explained that, while “the
law favors the settlement of disputes” through agreements
between parties, there are circumstances in which it is
appropriate for a court to disregard such agreements and
stipulations. See In re E.H., 2006 UT 36, ¶¶ 20–21, 137 P.3d 809.
Put plainly, a court may disregard stipulations that
“compromise the core responsibilities of the court.” See id. ¶ 21.
For example, a court may, pursuant to its fact-finding
responsibility, disregard agreements regarding certain facts and
instead “compel the parties to present evidence for the court to
weigh and evaluate.” Id. ¶ 20; In re D.A.J., 2015 UT App 74, ¶ 6,
347 P.3d 430 (per curiam) (same). A court also must “exercise
greater care when delegating judicial functions” in cases “where
20170142-CA 7 2018 UT App 141In re N.M.
considerations of public policy or fundamental constitutional
rights permeate a case.” See In re E.H., 2006 UT 36, ¶ 26. Child
welfare and adoption cases are such cases. See id.; see also Utah
Code Ann. § 78A-6-102(5) (LexisNexis 2012) (outlining the
purposes of the juvenile courts); In re M.H., 2014 UT 26, ¶ 44, 347
P.3d 368 (Nehring, J., concurring in the result) (explaining that
when the Juvenile Court Act was enacted its purpose was to “act
in the interest of Children in various kinds of troubled
circumstances because of the public interest in their welfare”
(quotation simplified)).
¶19 To that end, juvenile courts have exclusive jurisdiction
over proceedings involving abused, neglected, or dependent
children within the statutory definitions, including termination
proceedings. Utah Code Ann. § 78A-6-103(1)(b), (f) (LexisNexis
Supp. 2017); see also In re D.A.J., 2015 UT App 74, ¶ 5. And one of
the juvenile court’s main purposes and responsibilities in these
types of proceedings is to “act in the best interests of the minor
in all cases.” Utah Code Ann. § 78A-6-102(5)(g) (2012). Indeed,
the Juvenile Court Act provides that the court overseeing
permanency proceedings “shall . . . consider the welfare and best
interest of the child of paramount importance” in rendering its
permanency determinations. See id. § 78A-6-503(12) (LexisNexis
Supp. 2017); see also id. § 78A-6-506(3) (2012); In re M.H., 2014 UT
26, ¶ 44 (explaining that the “best interests of the children
remains the guiding principle in juvenile court proceedings
today” and that “the purpose of the juvenile courts [is] to strive
to act in the best interests of the children in all cases” (quotations
simplified)); In re J.D., 2011 UT App 184, ¶¶ 10, 24, 26, 257 P.3d
1062 (affirming that “in every [termination of parental rights]
case, the best interest of the child is of paramount importance in
determining whether the child-parent relationship should be
permanently severed”).
¶20 In this regard, our supreme court has explained that
the court overseeing these types of proceedings retains the
“final authority over the determination of [a child’s] best
20170142-CA 8 2018 UT App 141In re N.M.
interests.” See In re E.H., 2006 UT 36, ¶¶ 28, 37. This core
authority to determine a child’s best interest cannot be stipulated
away by the parties. See id. ¶¶ 21–28, 37; see also R.B. v. L.B., 2014
UT App 270, ¶¶ 14–17, 339 P.3d 137 (“[P]arties cannot stipulate
away the district court’s statutory responsibility to conduct a
best-interest analysis.”); see generally Utah Code Ann.
§§ 78A-6-503(12), -506(3) (LexisNexis 2012 & Supp. 2017)
(providing that the court determines whether termination is
appropriate in light of “the welfare and best interest of the
child,” which is “of paramount importance” (emphasis added)).
¶21 For example, in In re adoption of J.M., 2005 UT App 157,
135 P.3d 902 (per curiam), although the father delegated his
parental powers through a signed statement to his own parents,
the juvenile court instead awarded temporary guardianship to
the maternal grandparents. Id. ¶¶ 1–2. On appeal, the paternal
grandparents argued that “the delegation of parental powers
trumps the juvenile court’s power to determine guardianship of
the child.” Id. ¶ 2. This court disagreed, noting that “[n]o
provision in the Utah Code regulating the juvenile court limits
the juvenile court’s authority when a delegation of parental
power has been signed.” Id. ¶¶ 2–3. And we observed that “[t]o
hold otherwise would allow any parent in danger of having their
parental rights terminated a means of divesting the juvenile
court of its power to protect the best interests of children”—an
untenable proposition, given the juvenile court’s ultimate
authority to determine what is or is not in a child’s best interest.
See id.
¶22 Similarly, in In re D.A.J., a private party filed a petition to
terminate the mother’s parental rights and, in the course of the
proceedings, the mother and the private party entered into a
stipulation “that addressed many issues related to the custody
and care” of the child. 2015 UT App 74, ¶ 2. When the juvenile
court dismissed the termination petition after determining that
grounds for termination were not established and termination
was not in the child’s best interest, the private party appealed,
20170142-CA 9 2018 UT App 141In re N.M.
arguing that the stipulation “established that [the child] was
dependent” and, notwithstanding the dismissal of the
termination petition, the juvenile court should grant the private
party custody and guardianship of the child. Id. ¶¶ 3–4. We
rejected those arguments, concluding that the juvenile court was
not bound by the stipulation at issue. Id. ¶¶ 6–7. We determined
that, regardless of the stipulation, the juvenile court had not
adjudicated the child as dependent and that parties cannot
stipulate to a juvenile court’s subject matter jurisdiction, such as
through an agreement about a child’s alleged dependency. Id.
¶ 6. We also reiterated that the court retained discretion to
disregard “an agreement regarding certain facts” and could
instead compel the parties to present evidence on the issue. Id.
¶23 Here, the stipulation upon which Father relies
represented the parties’ determination that, rather than
terminate Father’s parental rights and proceed with the primary
permanency goal of adoption, it would be in Child’s best interest
to place Child in the permanent custody and guardianship of
Maternal Grandparents. Nevertheless, because that stipulation
was necessarily predicated upon a determination by the parties
regarding what was in Child’s best interest, the court was not
bound by it or obligated to accept it. See In re E.H., 2006 UT 36,
¶¶ 21–28, 37. As we have explained above, one of the juvenile
court’s core responsibilities is protecting and making
determinations regarding a child’s best interest. Thus, the
juvenile court, not the parties, retains the final authority to
determine, once reunification services to both parents are
terminated, what permanency goal—permanent custody and
guardianship or adoption—would be in a child’s best interest.
See id.; see generally Utah Code Ann. § 78A-6-314 (LexisNexis
Supp. 2017) (authorizing a court to determine a final plan in the
child’s best interest in circumstances where, among other things,
reunification services were not successful). The court here acted
well within its discretion and its authority, as overseer of the
permanency proceedings and final arbiter of Child’s best
interest, to reject the parties’ proffered stipulation and instead
20170142-CA 10 2018 UT App 141In re N.M.
continue with the termination proceedings to hear the available
evidence before making its final permanency determinations. 2
Accordingly, we conclude that the juvenile court did not err in
terminating Father’s parental rights. 3
2. Father contends that the juvenile court erred when it rejected
the parties’ stipulation based on Maternal Grandparents’ stated
desire to adopt Child, because Maternal Grandparents, although
involved on a practical level with the proceedings, were
nevertheless nonparties to the case. We reject the premise
underlying this contention. While the court noted Maternal
Grandparents’ disagreement with the stipulation, our review of
the November 2016 hearing persuades us that the court did not
reject the stipulation in deference to Maternal Grandparents’
wishes. Rather, the record demonstrates that the court’s decision
was driven by its determination that it did not “have the
evidence” at that time to change the permanency goal from
adoption to permanent custody and guardianship. We therefore
do not address this contention further.
3. Father also argues that the court erred in rejecting the
stipulation because the scope of the juvenile court’s authority to
determine a permanency goal in light of a child’s best interest is
necessarily usurped by the ethical rules prohibiting an attorney
from pursuing a frivolous proceeding and by the separation of
powers between the State, as a representative of the executive
department with authority to decide which cases to prosecute,
and the court. We reject both contentions. Father has not
demonstrated that rule 3.1 of the Utah Rules of Professional
Conduct “usurps” the juvenile court’s authority to proceed with
termination proceedings, particularly in light of the juvenile
court’s unique purpose and authority to protect a child by
making permanency orders in light of the child’s best interest.
See, e.g., Utah Code Ann. § 78A-6-102(5) (LexisNexis 2012); id.
§ 78A-6-314(4), (9) (Supp. 2017). Similarly, Father has failed to
(continued…)
20170142-CA 11 2018 UT App 141In re N.M.
II. Failure to Dismiss the TPR
¶24 Father also argues that the juvenile court erred by
declining to treat the State’s motion to change the permanency
goal and dismiss the TPR as a voluntary dismissal under rule 41
of the Utah Rules of Civil Procedure, a dismissal he claims ought
to have resulted in the juvenile court’s loss of jurisdiction over
the TPR. In particular, he claims that the court erred because the
State’s “oral request was proper” under rule 41.
¶25 Father asked the juvenile court in his joint rule 60(b)
motion to treat the State’s oral motion to change the permanency
goal and dismiss the TPR as a rule 41 voluntary dismissal. We
generally review for an abuse of discretion the court’s refusal to
grant relief on this basis. Fisher v. Bybee, 2004 UT 92, ¶ 7, 104 P.3d
1198 (“We will generally reverse a [lower] court’s denial of a rule
60(b) motion only where the court has exceeded its discretion.”).
However, even if the juvenile court exceeded its discretion in
failing to grant the relief Father requested, Father is entitled to
relief on appeal only if he can also demonstrate that he was
harmed by the alleged error. See In re P.D., 2013 UT App 162,
¶ 11, 306 P.3d 817 (“On appeal, the appellant has the burden of
demonstrating an error was prejudicial—that there is a
reasonable likelihood that the error affected the outcome of the
proceedings.” (quotation simplified)). We conclude that Father’s
rule 41 challenge fails because, as we explain below, he has not
shown that he was harmed by the alleged error.
¶26 Rule 41 provides in relevant part that a plaintiff may
voluntarily “dismiss an action without a court order by filing . . .
a notice of dismissal before the opposing party serves an answer
(…continued)
demonstrate that, notwithstanding the juvenile court’s unique
purpose and authority, requiring the case to proceed with
termination hearings violated the separation of powers doctrine.
20170142-CA 12 2018 UT App 141In re N.M.
or a motion for summary judgment; or . . . a stipulation of
dismissal signed by all parties who have appeared.” Utah R. Civ.
P. 41(a)(1)(A). A valid voluntary dismissal under this rule
renders the proceedings a “nullity,” because “no case in
controversy exists any longer and, hence, the court . . . lack[s]
jurisdiction to proceed any further with the action.” Thiele v.
Anderson, 1999 UT App 56, ¶ 24, 975 P.2d 481 (quotations
simplified). Father claims that the court erred in failing to
dismiss the TPR because the State’s request, memorialized by its
later notice of withdrawal, constituted a rule 41 notice of
dismissal made before the parents had answered the TPR.
¶27 Even assuming for purposes of argument that the court
ought to have construed the State’s request as a rule 41 dismissal
and that it was error not to do so, Father has not demonstrated
that the juvenile court’s alleged error was harmful. See In re J.B.,
2002 UT App 268, ¶¶ 8–12, 53 P.3d 968 (affirming the
termination of a father’s parental rights where, even though the
juvenile court erred in relying upon findings from a prior
termination proceeding in which the father did not participate to
terminate the mother’s rights, the error was not harmful). “The
pivotal question is whether the error resulted in prejudice
sufficient to warrant reversal of the termination order. An error
is prejudicial only if a review of the record persuades the
appellate court that without the error there was a reasonable
likelihood of a more favorable result for the [appellant].” In re C.Y.,
765 P.2d 251, 254 (Utah Ct. App. 1988) (quotation simplified); see
also Albrecht v. Bennett, 2002 UT App 64, ¶¶ 31–32, 44 P.3d 838(declining to reach the merits of an allegedly improper rule 41
dismissal where the alleged error was harmless in light of the
record and the other proceedings in the case). Father contends,
in conclusory fashion, that had the TPR been dismissed, the State
would not have been forced “to pursue termination against
him,” and the court would have instead “properly mov[ed]
towards its concurrent goal of permanent custody and
guardianship as stipulated to by the parties.”
20170142-CA 13 2018 UT App 141In re N.M.
¶28 But Father has not shown that, if the TPR had been
dismissed, the court would have “mov[ed] towards its
concurrent goal of permanent custody and guardianship.” As we
have explained, the court was not required to simply accept on
motion that permanent custody and guardianship would have
been in Child’s best interest, and Father has not shown that, had
the TPR been dismissed, the court necessarily would have
abandoned its primary permanency goal of adoption. To the
contrary, in the November 2016 hearing, the juvenile court
expressed its discomfort with proceeding with the concurrent
goal precisely because it did not believe it had the evidence yet
that it was in Child’s best interest to do so. See generally In re
M.H., 2014 UT 26, ¶ 44, 347 P.3d 368 (Nehring, J., concurring in
the result) (explaining that the “best interests of the children
remains the guiding principle in juvenile court proceedings
today” and that “the purpose of the juvenile courts [is] to strive
to act in the best interests of the children in all cases” (quotations
simplified)). Nor has Father provided any authority to support
the proposition that in circumstances in which a termination
petition is dismissed a juvenile court is required to abandon the
primary permanency goal and instead proceed under the
concurrent goal. See Bank of Am. v. Adamson, 2017 UT 2, ¶¶ 11–13,
391 P.3d 196 (suggesting that an appellant will not carry his
burden of persuasion on appeal if the appellant fails to “cite the
legal authority on which [his] argument is based and then
provide reasoned analysis of how that authority should apply in
the particular case”); see generally Utah Code Ann. § 78A-6-
312(10)(a)–(b) (LexisNexis Supp. 2017) (providing that the
juvenile court “may amend a minor’s primary permanency plan
before the establishment of a final permanency plan,” but that
“[t]he court is not limited to the terms of the concurrent
permanency plan in the event that the primary permanency plan
is abandoned”).
¶29 In this regard, Father has provided little basis for his
prediction about how the case would have proceeded. Even had
the TPR been dismissed, the court retained jurisdiction over
20170142-CA 14 2018 UT App 141In re N.M.
Child by virtue of Child’s adjudication as neglected, see generally
Utah Code Ann. § 78A-6-103(1)(b) (Supp. 2017) (providing that
the juvenile court has exclusive jurisdiction over a neglected
child), and its September 2016 decisions—terminating
reunification services, setting adoption as the final permanency
goal, and ordering that a petition for termination of both
parents’ rights be filed—still stood. Father has not shown, for
example, that in these circumstances it was reasonably likely that
another interested party—such as Maternal Grandparents or the
Guardian ad Litem—would have failed to file a termination
petition pursuant to the court’s permanency order, had the
State’s petition been dismissed. See generally id. § 78A-6-504(1)
(2012) (providing that “[a]ny interested party, including a foster
parent, may file a petition for termination of the parent-child
relationship with regard to a child”). And, regardless of whether
the TPR was dismissed under rule 41, given the termination of
reunification services, the court still would have had to decide
whether adoption or permanent custody and guardianship was
the proper permanent plan for Child. See id. § 78A-6-314(4)
(Supp. 2017). To make that decision, the court would have had to
consider the evidence relevant to that question, just as it had
pursuant to its decision to terminate Father’s parental rights.
Father therefore has not demonstrated that, given the posture of
the case, even if the TPR had been dismissed, the case was
reasonably likely to have proceeded differently, resulting in a
different and more favorable outcome for him. See In re J.B., 2002
UT App 268, ¶¶ 8–12.
¶30 Accordingly, Father has not shown he is entitled to relief
on appeal. On this basis, we reject his rule 41 challenge to the
termination of his parental rights.
CONCLUSION
¶31 We reject Father’s argument that the juvenile court erred
by failing to accept the parties’ stipulation regarding Child’s best
20170142-CA 15 2018 UT App 141In re N.M.
interest. We also reject Father’s challenge to the juvenile court’s
refusal to dismiss the TPR on the basis of rule 41 of the Utah
Rules of Civil Procedure. Accordingly, we affirm the termination
of Father’s parental rights as to Child.
20170142-CA 16 2018 UT App 141