In re J.L...

2022 UT 12IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH, in the Interest of J.A.L. and J.O.L.,
Persons Under Eighteen Years of Age
J.L. and J.A.,
Appellants,
v.
STATE OF UTAH,
Appellee.
No. 20200271
Heard September 16, 2021
Filed February 24, 2022
On Certification from the Court of Appeals
Fifth District Juvenile, Iron County
The Honorable Troy A. Little
No. 1161641, 1161642
Attorneys:1
Alexandra Mareschal, J. Frederic Voros, Jr., Julie J. Nelson, Salt Lake
City, Christa G. Nelson, Cedar City, for appellant J.L.
Colleen K. Coebergh, Salt Lake City, Candice N. Reid, Cedar City,
for appellant J.A.
Sean D. Reyes, Att’y Gen., Carol L. C. Verdoia, John M. Peterson,
Asst. Att’ys Gen., Salt Lake City, for appellee
Martha Pierce, Salt Lake City, Guardian ad Litem
for J.A.L. and J.O.L.
_____________________________________________________________
1Attorneys for amici curiae: William A. Thorne, Jr., Midvale,
Movant Pro Se; Kirstin Norman, American Fork, for Parental
Defense Alliance of Utah.
In re J.L.
Opinion of the Court
ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court in
which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE, and
JUSTICE PETERSEN joined.
ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
¶1 This is an appeal from a juvenile court order terminating the
parental rights of the mother and father of two children. The
Division of Child and Family Services has been engaged with this
family since at least July 2018. A range of support services has been
provided over time. The children were removed from the mother’s
custody in December 2018 and placed in foster care. And at various
times both the father and mother have been subject to a court order
prohibiting contact between them and to orders requiring treatment
for domestic violence, substance abuse, and mental health issues.
¶2 The Division initially pursued a permanency goal of
reunification with the parents. When reunification failed, the
Division petitioned to change the goal to adoption. After a hearing
and an order granting the new permanency goal, the children were
moved to a kinship placement with the father’s brother in Arkansas.
The uncle had agreed to adopt the children. And after a subsequent
hearing on the termination of parental rights, the juvenile court
entered an order terminating the parental rights of both the mother
and father.
¶3 In the termination proceeding, the juvenile court found that
both parents were “unfit” and had “neglected” the children. The
court based its determination on factors listed in Utah Code section
78A-6-508(2)—concluding that the children were “abused and
neglected” by “[t]he domestic violence perpetrated by the Father and
the Mother’s failure to protect the children,” and that the parents’
substance abuse “render[ed] [them] unable to care for the children.”
¶4 After finding statutory grounds to terminate, the court
determined that termination was “strictly necessary” in the “best
interest” of the children. It concluded that the children could not be
returned home “today”—or “at this point”—because the mother and
father had failed to sufficiently rehabilitate themselves. And it held
that the children’s “tremendous need for permanency and stability”
could not be met while preserving the parents’ rights within a
permanent custody and guardianship arrangement.
¶5 Six weeks after the termination order was entered, the
adoptive placement with the uncle failed. The children returned to
state custody in Utah.
2
Cite as: 2022 UT 12Opinion of the Court
¶6 After the kinship placement failed, the father and mother filed
motions for post-judgment relief. The mother sought 60(b)(6) relief in
light of the “extraordinary circumstances” of the failure of the
kinship placement. The father filed a 60(b)(6) motion on the same
grounds. He also sought relief under 60(b)(5), asserting that the
failed kinship placement meant that the judgment was “no longer
equitable.” The juvenile court denied the motions.
¶7 The mother and father appealed. The court of appeals certified
the matter to this court based on a perceived need for our review of
“a challenge to the current appellate standard of review in child
welfare proceedings” and to consider “an issue regarding the effect
of statutory changes on supreme court case law.”
¶8 The mother and father raise different claims of error on
appeal. The mother challenges only the juvenile court’s findings,
made at an evidentiary permanency hearing and allegedly at a
subsequent review hearing, that she appeared “under the influence”
at various hearings. She asserts that a judge is not qualified to make
such findings without expert testimony. And she contends that the
court denied her due process of law by making the findings without
giving her notice and an opportunity to be heard.
¶9 The father challenges the juvenile court’s best interest
determination2 and the court’s denial of his motions for post-
judgment relief. As an initial matter, the father asks us to conduct de
novo review of termination proceedings—and overturn the
deferential standard of review established in State ex rel. B.R.,
2007 UT 82, 171 P.3d 435. He also asks us to require specific factual
findings and legal conclusions in parental rights termination orders.
Regardless of our decision on the appropriate standard of review,
the father contends that the juvenile court erred in concluding that
termination of the father’s rights was “strictly necessary” to promote
the “best interest” of the children.
_____________________________________________________________
2 The father does not challenge the juvenile court’s determination
that he is “unfit.” See In re B.T.B., 2020 UT 60, ¶¶ 19–20, 46, 76, 472
P.3d 827, reh’g granted (Aug. 13, 2020), as amended (Aug. 14, 2020)
(clarifying that termination of parental rights under Utah law
demands a “two-step inquiry” in which the juvenile court must first
determine that the parent is “unfit” on statutory grounds and then
“must find that termination of the parent’s rights is in the best
interests of the child” (citations and internal quotation marks
omitted)).
3
In re J.L.
Opinion of the Court
¶10 We affirm in part and reverse and vacate in part. First, we
note that the mother’s claims are unpreserved and hold that she has
failed to carry the burden of establishing plain error. Second, we
reject the father’s request that we abandon a deferential standard of
review of a best interest determination but find threshold legal errors
in the juvenile court’s best interest analysis—in the assessment of
whether the father had made sufficient progress in his rehabilitation
under Utah Code section 78A-6-509(1)(b), and in the assessment of
whether termination of parental rights is “strictly necessary” under
Utah Code section 78A-6-507. Third, we vacate and remand for a
new best interest determination under the law as clarified in this
opinion. In so doing, we note that the mother failed to highlight the
legal errors identified by the father in her briefs on appeal but
conclude that the mother’s rights should be on the table on remand
in the unique circumstances of this case.
I
¶11 The mother challenges the juvenile court’s findings that she
appeared “under the influence” at court hearings. She asserts that
the judge is not qualified to make such findings without expert
testimony. And she claims that the court infringed her right to due
process by making these findings without notice that the
observations were being made and without affording her an
opportunity to respond.
¶12 None of these points was preserved in the juvenile court,
however. To succeed on appeal, the mother would therefore need to
make a showing of plain error—that “(1) an error exists; (2) the error
should have been obvious to the trial court; and (3) the error is
harmful, i.e., absent the error, there is a reasonable likelihood of a
more favorable outcome.” State v. Low, 2008 UT 58, ¶ 20, 192 P.3d 867(citations and internal quotation marks omitted).3 And the mother
has failed to carry that burden.
_____________________________________________________________
3 Our court of appeals has recently observed that this court has
not decided whether plain error applies in civil cases. Miner v. Miner,
2021 UT App 77, ¶ 11 n.3, 496 P.3d 242 (citing Utah Stream Access
Coal. v. Orange St. Dev., 2017 UT 82, ¶ 14 n.2, 416 P.3d 553 (noting
that the court has “not . . . endorse[d] the ongoing viability of plain
error review in civil cases”; “[n]or do we repudiate it”)). We have
“not had an opportunity to enter this debate, and would be open to
doing so in a case in which the matter is presented for our decision.”
(continued . . .)
4
Cite as: 2022 UT 12Opinion of the Court
¶13 We have previously upheld a juvenile court’s legal
conclusions based on observations of “outbursts” made in open
court. In re T.E., 2011 UT 51, ¶¶ 44–45, 266 P.3d 739. And the juvenile
court in this case did not even go so far as to make a legal
conclusion. It relied on its observation of the mother in court to
require her to be subjected to testing for substance use—a follow-up
under a standing order requiring ongoing substance abuse testing.4
So we do not see how it could have been error—and certainly not an
obvious error—for the court to use its observations as a basis for
such testing where the mother’s sobriety was already at issue.
¶14 Nor do we see a basis for concluding that any alleged error
was prejudicial. In the termination order, the court refers to its
“personal observations” of the mother only once—as a single
consideration in a set of reasons supporting one of the five grounds
for termination found by the court. And earlier in the proceedings,
the court continued reunification services for the mother despite
making a concurrent finding that “[t]hree quarters of the times the
Mother is in court it appears she [is] under the influence of drugs”—
and despite terminating reunification services as to the father in the
same evidentiary permanency hearing. The mother has not
established that there is any likelihood that her parental rights
would not have been terminated if the juvenile court had not
ordered testing on the basis of its observations, or if it had afforded
the mother the right to respond that she asserts as a matter of due
process.
Utah Stream Access Coal., 2017 UT 82, ¶ 14 n.2. This is not such a case.
Although the mother raises a claim of plain error, none of the parties
ask us to rule on the propriety of plain error review in parental
rights termination proceedings or in civil cases generally. And even
if the doctrine of plain error does apply, the mother has failed to
establish plain error. Infra ¶¶ 12–14. So we simply hold that the
mother has not carried her burden of showing plain error.
4 The termination order states that “[t]he [c]ourt asked for an
updated substance abuse evaluation in July of 2019 because the
[c]ourt has been concerned about the Mother coming to hearings
when she was under the influence. It appeared to the [c]ourt that at
some hearings the Mother would be clear and present, but on other
occasions the Mother appeared to not be clear or present.”
5
In re J.L.
Opinion of the Court
II
¶15 The father challenges the termination of his parental rights
on two grounds. He contends that the juvenile court erred in (a)
concluding that termination of his rights was “strictly necessary” in
the “best interest” of the children; and (b) denying his motions for
post-judgment relief. We reverse on the first ground and decline to
reach the second because it is mooted by our threshold decision.
A
¶16 The father prefaces his challenge to the juvenile court’s best
interest analysis with a request that we overrule our longstanding
case law on the standard of review of parental rights termination
orders—requesting that we replace the established deferential
standard of review with a de novo review for correctness. But we
rejected parallel requests in two recent decisions. See In re G.D.,
2021 UT 19, ¶¶ 1, 3, 491 P.3d 867; State ex rel. E.R., 2021 UT 36, ¶ 13,
496 P.3d 58. And the father has not identified a persuasive ground
for reconsidering these decisions.
¶17 In E.R. we clarified that the best interest inquiry is a fact-like
“mixed determination of law and fact” that is subject to deferential
review. 2021 UT 36, ¶¶ 17, 22. Appellate deference, of course, is not
absolute. The juvenile court’s best interest analysis may be set aside
if it is “against the ‘clear weight of the evidence.’” Id. ¶ 6. It is also
subject to reversal where it is premised on a threshold legal error. See
id. ¶ 16 (noting that we “afford [n]o deference” to the juvenile court’s
“analysis of abstract legal questions” (alteration in original) (citation
and internal quotation marks omitted)).
¶18 We reverse the juvenile court’s termination of the father’s
parental rights on this basis. The juvenile court’s order was infected
by two legal errors. And those errors foreclose the usual basis for
deference to the conclusion that termination of the father’s rights
was “strictly necessary” in the “best interest” of the children under
Utah Code section 78A-6-507(1) (2020).5 See Rocky Ford Irrigation Co.
v. Kents Lake Reservoir Co., 2020 UT 47, ¶ 78, 469 P.3d 1003 (citation
_____________________________________________________________
5 The legislature amended the Termination of Parental Rights Act
after the termination hearings in question. We cite and apply the
version of the statute in effect at the time of the hearings. See State v.
Clark, 2011 UT 23, ¶ 13, 251 P.3d 829 (“[W]e apply the law as it exists
at the time of the event regulated by the law in question.”).
6
Cite as: 2022 UT 12Opinion of the Court
omitted) (holding that a district court’s findings were not owed
deference where they were “infected by legal error”).
1
¶19 In terminating the father’s parental rights, the juvenile court
concluded that it would be “neglectful” to “[r]eturn[] the children to
the Father today.” (Emphasis added.) It also found that a
reunification of the children with the father would introduce a
significant “safety risk” “at this time.” (Emphasis added.) And it
raised the concern that the father might not “be successful outside of
treatment” given the lack of “any indication of future success” based
on “the Father’s past.”
¶20 These statements are premised on legal error. In a case where
the child is not in the parent’s physical custody, the court must
consider a set of “specific considerations” in assessing whether
termination is strictly necessary in the best interest of children. UTAH
CODE § 78A-6-509. And the listed considerations include “the effort
the parent or parents have made to adjust their circumstances,
conduct, or conditions to make it in the child’s best interest to return
[the child to the] home after a reasonable length of time.” Id. § 78A-6-
509(1)(b) (emphasis added).
¶21 The statute does not establish a specific timeframe for
parents to “adjust their circumstances, conduct, or conditions.” But it
does afford a parent a “reasonable length of time” to make any
necessary adjustments. And that requires the court to consider
whether any needed adjustments were made within a reasonable
time.
¶22 The court retains a measure of discretion in deciding on the
length of the “reasonable” time.6 But by statute it must exercise that
discretion. And the juvenile court failed to do so here. It held that the
father “ha[d] failed to appropriately adjust” his “circumstances,
conduct, or conditions to make return in the children’s best interest.”
In so doing, it failed to consider whether he had had a “reasonable
_____________________________________________________________
6 In so holding, we reject the father’s request that we establish a
requirement that in order to terminate parental rights the court must
find that it is “impossible” for a child to return to a parent over any
period of time. The statute does not speak in terms of impossibility.
It speaks in terms of reasonableness.
7
In re J.L.
Opinion of the Court
length of time” to do so.7 And it exacerbated the problem by
focusing on static assessments that it would be “neglectful” to
“[r]eturn[] the children to the Father today” and would introduce a
significant “safety risk” if they returned to him “at this time.”
2
¶23 The juvenile court also premised its termination decision on
concerns about the “tremendous need for permanency and stability”
of the children. It considered the possibility of preserving the father’s
legal rights while awarding permanent custody to a guardian. But it
rejected that move on the ground that it “would not . . . offer the
same degree of permanency as an adoption,” given that a permanent
guardianship could be terminated at the request of the guardian or
at least subject to visitation by the father. And it held that this “lack
of stability would be harmful for the children.”
¶24 This too was error. The court was right to consider the
feasibility of a permanent guardianship. See In re B.T.B., 2020 UT 60,
¶¶ 66–67, 472 P.3d 827 (explaining that the “strictly necessary”
analysis requires consideration of the possibility of “feasible
options” like awarding custody to a permanent guardian (citation
and internal quotation marks omitted)). But it fell into legal error in
concluding that this option would not provide the “same degree of
permanency as an adoption.” That is not the question under our law.
A permanent guardianship by definition does not offer the same
degree of permanency as an adoption. And there is always some risk
that the permanent guardianship could come to an end, or be
affected by visitation by the parent. If these categorical concerns
were enough, termination and adoption would be strictly necessary
across the board. But such categorical analysis is not in line with the
statutory standard.
_____________________________________________________________
7 Utah Code section 78A-6-508(6) states that “fail[ure] to comply
substantially with the terms and conditions of a plan within six
months after the date on which the child was placed or the plan was
commenced, whichever occurs later” is “evidence of failure of
parental adjustment.” Earlier in the termination order, the juvenile
court found that the parents were not in substantial compliance with
the plan within six months. Despite this finding, the juvenile court
must still engage with the section 509 timeframe. Failure of
substantial compliance within six months is only “evidence” of
failure to adjust.
8
Cite as: 2022 UT 12Opinion of the Court
¶25 By statute, the juvenile court must assess whether a
permanent guardianship can “equally protect[] and benefit[]” the
children in the case before it. G.D., 2021 UT 19, ¶ 75 (citation
omitted). That standard is not met by the categorical concern that a
permanent guardianship is not as stable or permanent as an
adoption. It requires analysis of the particularized circumstances of
the case before the court. No such analysis is presented here. And
the court’s categorical dismissal of the possibility of a permanent
guardianship is a further ground for reversal of the juvenile court’s
decision.
B
¶26 The above legal errors undermine our confidence in the
juvenile court’s basis for terminating the father’s parental rights.
They also foreclose the need for us to consider the father’s challenge
to the denial of his motions for post-judgment relief. The correctness
of the denial of those motions is mooted by our decision to reverse in
light of the legal errors in the parental termination order.
III
¶27 The father has established that the juvenile court’s
termination order was infected by the above-noted legal errors. That
leaves the question of the effect of those errors on our disposition on
appeal. We conclude that a remand to the juvenile court is
appropriate. And we hold that both parents’ legal rights should be
on the table on remand.
A
¶28 The juvenile court’s threshold legal errors foreclose the usual
basis for deference to its factual findings and mixed determinations.
In the face of such errors, an appellate court has at least two options.
It may reverse and remand to the lower court for rehearing under a
correct legal standard.8 Or it may review the lower court’s findings
_____________________________________________________________
8 See SIRQ, Inc. v. The Layton Cos., Inc., 2016 UT 30, ¶¶ 40–43, 56,
379 P.3d 1237 (remanding for a new trial on a false light verdict on
the ground that “the trial court failed to exercise its gatekeeping
function” to assure that the jury considered “only statements capable
of defamatory meaning”); State v. Richardson, 2013 UT 50, ¶¶ 32, 45,
308 P.3d 526 (finding that the lower court had improperly excluded
evidence and ordering a new trial).
9
In re J.L.
Opinion of the Court
under a non-deferential standard of review.9 We take the former
course of action here in light of the important role that our juvenile
courts play in applying a complex body of law to a matter
encompassing an extensive factual and procedural record.
B
¶29 In the parties’ briefing on appeal, only the father identified
the above-noted legal errors as a basis for reversal. The mother’s
appeal was limited to her challenge to the juvenile court’s findings
that she appeared “under the influence” in court.
¶30 The father urges this as a basis for concluding that the
mother is foreclosed from participating in the proceedings on
remand, or from having her rights on the table in a new “best
interest” analysis in line with the refinements in our law set forth
above. See supra ¶¶ 21–22, 24–25. He notes that a claim is generally
waived if not raised on appeal. See State v. Johnson, 2017 UT 76,
¶¶ 15–16, 416 P.3d 443. And he asks us to hold that the mother
forfeited her stake in a remand under claims of legal error that she
failed to advance on appeal.
¶31 The father’s position finds some threshold footing in our law.
As a general rule, our courts respect the prerogatives of the parties in
deciding which claims to pursue (or forgo) in litigation. See Utah
Stream Access Coalition v. VR Acquisitions, LLC, 2019 UT 7, ¶¶ 36–37,
439 P.3d 593. In deference to those prerogatives, and in the interest of
judicial economy and repose, the parties are generally stuck with the
moves they make in litigation. Patterson v. Patterson, 2011 UT 68,
¶¶ 15–17, 266 P.3d 828. Our courts do not lightly second-guess the
parties by reviving a claim they have forfeited by their pleading or
briefing decisions.10
_____________________________________________________________
9 See Rocky Ford Irrigation Co. v. Kents Lake Reservoir Co.,
2020 UT 47, ¶¶ 80–81, 469 P.3d 1003 (concluding that the lower court
applied the incorrect legal standard for judging when a plaintiff
brings an action in “bad faith” and reviewing the lower court’s
findings de novo).
10 See Utah Stream Access Coalition, 2019 UT 7, ¶¶ 36–37,
439 P.3d 593 (applying this principle to claims before the district
court); State v. Johnson, 2017 UT 76, ¶ 15–16, 416 P.3d 443 (extending
this principle to claims of error on appeal).
10
Cite as: 2022 UT 12Opinion of the Court
¶32 The mother presumably would be foreclosed from
participating in the proceedings on remand if she had failed to file
an appeal.11 But the mother did file an appeal. And the father has
cited no case law that controls in the unusual circumstances
presented here—where two appellants filed briefs on appeal and one
of them has identified a legal error that affected not just both of the
appellants but also the interests of other parties to this proceeding
(the children).
¶33 In these circumstances, we are reluctant to give conclusive,
controlling effect to the briefing decisions of the parties. The juvenile
court’s legal missteps infected its decision to terminate both the
father’s and the mother’s legal rights.12 And those missteps may bear
significant consequences not just for the parents but for their
children. The rights and interests of the parents and the children are
not only substantial but intertwined. On remand, the decision
whether to terminate one parent’s rights could be affected by the
decision whether to terminate the other’s rights. And the decision
whether one or both parents should retain their rights may have
_____________________________________________________________
11 See 20 MOORE’S FED. PRAC. CIV. § 304.11(3)(c) (stating that a
party that “desires to challenge an order or judgment” must file an
appeal rather than “arguing that it should benefit from the result in
another party’s appeal”); Federated Dep’t Stores, Inc. v. Moitie,
452 U.S. 394, 400–01 (1981) (applying this rule and noting that the
non-appealing party made a “calculated choice” and is stuck with
the result of its choice); Collins v. Sandy City Bd. of Adjustment,
2002 UT 77, ¶¶ 16–19, 52 P.3d 1267 (endorsing and applying the rule
in Moitie and concluding that a party that declined to file an appeal
finds itself in a “predicament” “of [its] own making”).
12 Overall, the court stated that its “analysis” was “very similar”
as to both parents. And it extended both of the above-noted legal
errors to its analysis of the mother’s legal rights: (1) considering the
mother’s “current ability” as a parent in light of her “past conduct,”
asserting that she had not “done enough” as of the date of the court’s
hearing, and concluding that it would be “neglectful” if “the
children were returned” to her on that date; and (2) holding that the
children “need permanency without the concern that the parents may
continue to enter and exit their lives” and warning that “[t]he parents
may petition for visitation” or the guardians “could seek to
terminate the guardianship.” (Emphasis added.)
11
In re J.L.
Opinion of the Court
substantial bearing on the analysis of the best interest of the
children.13
¶34 With these concerns in mind, we conclude that the mother’s
briefing decisions should not foreclose her from participating in the
case on remand. Both parents’ legal rights should be on the table.
¶35 In remanding, we are not foreclosing the possibility that
concerns expressed in the juvenile court’s order—such as the risk
and effects of domestic violence—may be a sufficient basis for
termination of the parents’ legal rights. Nor are we suggesting that
the parents have not yet had a “reasonable length of time” to adjust
their “circumstances, conduct, or conditions.” On these and other
points, we are simply holding that the juvenile court’s opinion is too
affected by legal error to merit deference on appeal. And we are
sending the matter back to the juvenile court to exercise its discretion
under a correct formulation of the law.
IV
¶36 We vacate the juvenile court’s order terminating the parental
rights of the parents. In so doing, we leave in place any threshold
orders not challenged on appeal—such as the court’s order
establishing the parents’ unfitness. But we remand the case for
rehearing on the question whether termination of their parental
rights is strictly necessary in the best interest of the children, under
the governing legal standard as clarified in this opinion.
_____________________________________________________________
13 As the State and the father noted in their supplemental briefs,
the determination as to one parent may bear on whether it is “strictly
necessary” to terminate the rights of the other parent. If one parent
retains his (or her) parental rights, adoption would no longer be an
option, and it may no longer be “strictly necessary” to terminate the
other parent’s rights for the best interest of the children.
12