In re A.R... , 2019 UT App 81 ( 2019 )

2019 UT App 81THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF A.R., R.R., AND V.R.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
E.R.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Per Curiam Opinion
No. 20190245-CA
Filed May 16, 2019
Third District Juvenile Court, Salt Lake Department
The Honorable Kimberly K. Hornak
No. 1155663
Colleen K. Coebergh, Attorney for Appellant
Sean D. Reyes, Carol L. C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
Before JUDGES MICHELE M. CHRISTIANSEN FORSTER, DAVID N.
MORTENSEN, and RYAN M. HARRIS.
PER CURIAM:
¶1 E.R. (Father) appeals a decision awarding permanent
custody and guardianship of his children to their paternal
grandmother. Father asks this court to reverse the grant of
permanent custody and guardianship and remand with a
direction to enter an order of temporary custody and
guardianship in the paternal grandmother pending further
proceedings. We affirm the juvenile court’s decision.
In re A.R.
¶2 Father does not challenge the juvenile court’s
determination of his unfitness as a parent due to his untreated
mental illness. The sole issue raised on appeal is a claim that the
juvenile court’s award of permanent custody and guardianship
of the children to their paternal grandmother was erroneous
because In re B.T.B., 2018 UT App 157, 436 P.3d 206, required the
court to preserve the possibility of rehabilitation of the parent-
child relationship as well as a future restoration of custody to
Father.
¶3 The case was before the juvenile court on the Guardian ad
Litem’s (GAL) petition to terminate Father’s parental rights to
allow the children to be adopted. In contrast, the State advocated
for an award of permanent custody and guardianship to the
paternal grandmother with whom the children had resided
throughout the child welfare case. The paternal grandmother
wanted to be the children’s permanent guardian rather than
adopt them. The State had withdrawn its earlier petition to
terminate Father’s parental rights and thereafter requested an
award of permanent custody and guardianship to the paternal
grandmother. Father joined in the State’s recommendation.
During the trial on the termination petition, Father’s counsel
stated, “I would submit that at the very least what this court
could do [is] grant permanent custody and guardianship in the
grandmother and close the case.” Father’s counsel also
acknowledged that, under current Utah law, “if my client loses
permanent custody and guardianship in this case, he cannot
[petition to] get his children back.” See Utah Code Ann. § 78A-6-
1103(3)(b) (LexisNexis 2018). Father would, however, retain
residual rights that would include rights to visitation. The court
awarded permanent custody and guardianship of the children to
their paternal grandmother.
¶4 Notwithstanding his position at the termination trial,
Father asserts that he has preserved a challenge to the
permanent custody and guardianship award by filing an appeal.
20190245-CA 2 2019 UT App 81In re A.R.
This is insufficient to preserve the issue for consideration on
appeal. An issue is preserved for appeal when it has been
presented to the juvenile court in such a way that the court has
the opportunity to rule on it. See In re D.B., 2012 UT 65, ¶ 17, 289
P.3d 459. “To provide the court with this opportunity, the issue
must be specifically raised by the party asserting error, in a
timely manner, and must be supported by evidence and relevant
legal authority.” Id. (quotation simplified). Although the record
reflects that the juvenile court and the parties discussed the
requirement of B.T.B. to consider alternatives other than
terminating Father’s parental rights, Father did not raise the
argument that he makes in this appeal. In fact, Father’s counsel
specifically requested an award of permanent custody and
guardianship in the paternal grandmother in opposing the
GAL’s petition to terminate his parental rights.
¶5 But even assuming that Father did preserve the issue,
Father’s argument is based upon a mistaken interpretation of
B.T.B. Father relies on this court’s statement in B.T.B. that the
juvenile court should “consider whether other less-permanent
arrangements . . . 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.” In re B.T.B.,
2018 UT App 157, ¶ 55. Father claims that B.T.B. required the
juvenile court to make the award of custody and guardianship
only temporary to allow him the possibility to regain custody in
the future. B.T.B. contains no such requirement; remedies short
of termination, that preserve the parent-child relationship in
some fashion, can take any one of several forms, including the
one the juvenile court selected in this case: a permanent
guardianship arrangement in which the parent retains the right
to visitation, even if the parent no longer has the right to petition
for a restoration of custody. Indeed, as this court recently
clarified, “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
20190245-CA 3 2019 UT App 81In re A.R.
necessary’ to the best interests of the child.” In re C.T., 2018 UT
App 233, ¶ 16, 438 P.3d 100 (quotation simplified). “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.” Id. In this case, the juvenile court not only
considered alternatives to termination, the court selected one of
those alternatives by awarding permanent custody and
guardianship to the paternal grandmother. In this case, the
juvenile court complied with B.T.B.’s requirement that it
consider alternatives to termination, and the juvenile court’s
well-articulated reasons supporting its award of permanent
custody and guardianship in a relative are entitled to deference.
See id., ¶ 17.
¶6 Accordingly, we affirm the award of permanent custody
and guardianship of the children to their paternal grandmother.
20190245-CA 4 2019 UT App 81