In re Z.C.W...

2021 UT App 98THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF Z.C.W. AND C.C.W.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
R.D.,
Appellant,
v.
C.L.W.,
Appellee.
Opinion
No. 20200039-CA
Filed September 23, 2021
Third District Juvenile Court, West Jordan Department
The Honorable Renee M. Jimenez
No. 1135445
Julie J. Nelson and Alexandra Mareschal,
Attorneys for Appellant
Lisa Lokken and Kirstin H. Norman, Attorneys
for Appellee
Martha Pierce, Guardian ad Litem
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and DIANA HAGEN
concurred.
HARRIS, Judge:
¶1 This termination-of-parental-rights case—in which R.D.
(Mother) seeks to terminate the parental rights of her ex-
husband, C.L.W. (Father), regarding their two children, C.C.W.
and Z.C.W. (collectively, Children)—comes to us for a second
time. In our previous opinion, we reversed the juvenile court’s
order dismissing Mother’s petition and remanded the case with
In re Z.C.W.
instructions for the court to redo its “best-interest” analysis, this
time taking into account evidence that it had previously
discounted regarding Father’s history of domestic violence
toward Mother and another woman. See In re C.C.W., 2019 UT
App 34, ¶¶ 19–25, 440 P.3d 749. On remand, the juvenile court
reconsidered best interest and this time took into account
Father’s history of domestic violence, but it conducted its
analysis as of early 2017—the time of the previous trial—and not
as of late 2019, when the post-remand proceedings took place.
The court denied Mother’s motion to amend her termination
petition to include new facts and circumstances that she asserted
had occurred after the earlier trial, and the court refused to
consider any evidence regarding best interest that had not been
placed into the record at the previous trial. After reevaluating
best interest as of 2017, this time not compartmentalizing
Father’s history of domestic violence, the court again concluded
that termination of Father’s parental rights was not in Children’s
best interest, and again dismissed Mother’s petition.
¶2 Mother appeals the dismissal of her petition, but does not
raise a substantive challenge to the juvenile court’s new findings
and conclusions—that is, Mother does not claim that the
findings are unsupported by the evidence presented at the 2017
trial. Instead, Mother’s challenge is procedural: she asserts that
the court erred by conducting its post-remand best-interest
analysis in light of the evidence available in 2017, and by
refusing to consider facts and circumstances arising after 2017
that might have affected its analysis. We agree with Mother, and
hold that when we remand a case for a court to reconsider the
best-interest question, we generally intend for that renewed
inquiry to be conducted in the present tense, and for the effective
date of that analysis to be the date of the post-remand
proceeding. Accordingly, we vacate the juvenile court’s order of
dismissal, and remand for a new best-interest analysis that
should be conducted based on the facts and circumstances in
existence as of the date the inquiry is made.
20200039-CA 2 2021 UT App 98In re Z.C.W.
BACKGROUND
¶3 Many of the salient facts that inform the legal issues in
this case are set forth in detail in our previous opinion, see id.
¶¶ 2–12, and we see no need to repeat them here. For present
purposes, we include only a brief summary of the pre-remand
facts.
¶4 Mother filed a private petition seeking termination of
Father’s parental rights regarding Children and alleged, among
other things, that Father had a history of domestic violence
toward her and another woman and had been incarcerated twice
for such offenses. Id. ¶¶ 2–5. After a trial in early 2017, the
juvenile court found that Father had abandoned Children, and
that there were therefore statutory grounds for termination, id.
¶ 7, but concluded that it was not in Children’s best interest for
Father’s parental rights to be terminated, id. ¶¶ 9–12. The court
made factual findings that Father had indeed brutally attacked
Mother and had a history of domestic violence, id. ¶ 8 & n.1, but
nevertheless concluded that those facts had little bearing on the
termination inquiry, because Father had never been violent
toward Children, id. ¶ 8. After determining that Mother had not
carried her burden on the best-interest inquiry, the juvenile
court dismissed Mother’s petition, and Mother appealed. Id.
¶¶ 12–13.
¶5 On appeal, we concluded that the juvenile court’s best-
interest “analysis was materially flawed” because, rather than
evaluating the impact Father’s acts of domestic violence could
have on Children, the court “completely separate[d] or
compartmentalize[d]” Father’s “history of domestic violence
toward other adults from the best-interest inquiry.” Id. ¶¶ 15, 19,
22. Accordingly, we vacated the order dismissing Mother’s
petition and remanded for the juvenile court to “reconsider[]” its
best-interest inquiry. Id. ¶ 25. We directed the court, in
conducting its renewed inquiry, to “adequately consider[] all of
20200039-CA 3 2021 UT App 98In re Z.C.W.
the proper factors,” including “what effect, if any, Father’s
history of domestic violence might have on his efforts to
reestablish a relationship with the Children.” Id.
¶6 Soon after remand, Mother filed a motion seeking leave to
amend her petition to include additional relevant information.
Mother asserted that “significant events, developments and
incidents” bearing on Children’s best interest had occurred in
the two years since the 2017 trial. Among other things, Mother
alleged that, since the trial, Father had committed violent acts
against another woman, and that Father’s parole had been
revoked due to drug and alcohol use. In addition, Mother
asserted that her own situation had changed, alleging that she
had remarried and her new spouse now wanted to adopt
Children. The guardian ad litem (GAL) assigned to represent
Children endorsed Mother’s position. Nevertheless, the juvenile
court denied Mother’s motion to amend, explaining that it
interpreted our opinion as requiring only a “reconsideration” of
its previous ruling. The court declined to consider the new
material alleged by Mother in connection with its renewed best-
interest analysis, stating that it would “listen to the testimony”
presented at the 2017 trial and would “read and consider the
various literature cited” in our opinion, after which it would
issue a written ruling without further hearing.
¶7 A few weeks later, the juvenile court issued a written
decision setting forth its renewed best-interest analysis. This
time, the court did consider Father’s history of domestic
violence. The court again noted that there was no evidence that
Father had ever “physically abused his biological or
stepchildren,” and found that “Mother did not fear Father’s
interaction with the Children.” The court also observed that,
under the district court order then in effect governing the
parties’ divorce proceedings, Father was entitled only to
supervised parent-time with Children. The juvenile court
concluded that Father was at low risk to commit domestic
20200039-CA 4 2021 UT App 98In re Z.C.W.
violence in the presence of Children, and gave several reasons
for its conclusion: Father had little contact with Mother; Father
had “engaged in mental health services and medication
management” and had “developed coping skills”; Father was
“remorseful” and “desire[d] to correct his past actions”; and
Father “was married with a support system in place.” In the
court’s view, this evidence demonstrated that Father had taken
“meaningful steps to change his life in order to be reintroduced”
to Children. The court also noted that Father was Children’s
only “African American father figure,” and that by keeping
Father’s parental rights intact, Children could “maintain their
legal relationship” with Father’s extended family, including their
older half-sister. For these reasons, the court concluded—based
on reconsideration of the evidence presented at the 2017 trial—
that Mother had not carried her burden of demonstrating, by
clear and convincing evidence, that it would be in Children’s
best interest for Father’s parental rights to be terminated. On that
basis, the court again dismissed Mother’s petition, doing so
without considering any evidence regarding events that
allegedly occurred between the 2017 trial and the date of the
court’s order.
¶8 Soon after issuance of the juvenile court’s post-remand
ruling, Mother and the GAL each asked the court for a “new
trial,” contending that the court should “re-open the evidence”
because it was “impossible for the court” to properly consider
best interest “without considering evidence of events that have
occurred in the two and a half years since the trial.” In the
documentation supporting her motion, Mother provided
additional detail regarding some of the new evidence, asserting
that Children’s half-sister had reached adulthood, no longer
lived with Father, and had her own independent relationship
with Children; that Father had reduced his financial support of
Children and let their insurance coverage lapse; and that C.C.W.
20200039-CA 5 2021 UT App 98In re Z.C.W.
had recently been diagnosed with attention deficit hyperactivity
disorder, allegedly heightening the need for stability in his life.1
The court denied these motions, offering its view that it had
complied with this court’s instructions by “considering all of the
evidence presented” at the 2017 trial, and that Mother’s remedy
was either to appeal or to file a new petition for termination of
Father’s parental rights.
ISSUE AND STANDARD OF REVIEW
¶9 Mother appeals from the juvenile court’s second dismissal
of her termination petition, and raises one issue for our review:
whether the juvenile court erred when it conducted its post-
remand best-interest inquiry in past-tense fashion, as of 2017,
and refused to consider facts and circumstances that allegedly
occurred after 2017.2 Both Mother and Father contend that we
1. On appeal, Mother asserts that, in recent months and since the
juvenile court’s 2019 order on reconsideration, Father has been
charged with new domestic violence crimes against his current
wife. It should go without saying that evidence of such events
does not exist in the record before us. But such allegations
underscore the necessity, discussed herein, for post-remand best-
interest inquiries to be conducted in present-tense fashion,
taking into account the facts and circumstances as they are found
to exist at the time the analysis is undertaken.
2. The GAL filed a brief attempting to raise additional issues,
including a substantive challenge to the juvenile court’s findings
and conclusions. But because we find Mother’s procedural
argument persuasive, and remand for another renewed best-
interest analysis, we deem it unnecessary to reach any
substantive challenge to the juvenile court’s findings until those
findings have been arrived at in a procedurally appropriate
(continued…)
20200039-CA 6 2021 UT App 98In re Z.C.W.
should review this issue for abuse of discretion. We disagree.
The narrow question of whether a post-remand best-interest
inquiry should be conducted in past-tense or present-tense
fashion presents a procedural legal issue, not a factual issue, and
one that we review for correctness.3 See Berman v. Yarbrough,
2011 UT 79, ¶ 12, 267 P.3d 905 (“We review procedural issues for
correctness and afford no deference to the lower court’s
ruling.”); see also State v. Kragh, 2011 UT App 108, ¶ 9, 255 P.3d
685 (“Procedural issues present questions of law, which we
review for correctness.”). The question also involves
interpretation of the remand instructions contained in our
previous opinion, and no other court is better positioned on that
score than we are. See State v. Lopes, 2001 UT 85, ¶¶ 11, 17–19, 34
P.3d 762 (stating that “the issues before us involve legal
(…continued)
manner. Moreover, we wonder whether the GAL—who is here
aligned with the appellant, a somewhat unusual posture for the
GAL in juvenile appeals—is properly allowed to inject new
issues into this appeal without filing an independent notice of
appeal, and whether the GAL’s brief (filed near in time to
Father’s, rather than Mother’s) was timely filed; the absence of
briefing on these questions provides us a second reason to defer
any ruling on the GAL’s substantive challenge to the juvenile
court’s findings.
3. Even to the extent that this issue arose in the context of a
motion for new trial, which normally “invokes the sound
discretion of the trial court,” see ASC Utah, Inc. v. Wolf Mountain
Resorts, LC, 2013 UT 24, ¶ 21, 309 P.3d 201 (quotation simplified),
where a court’s “decision rests on an erroneous legal
determination,” such as the misapplication of a legal standard,
that court has necessarily abused its discretion, see Maak v. IHC
Health Services, Inc., 2016 UT App 73, ¶ 26, 372 P.3d 64; see also
Gardner v. Gardner, 2019 UT 61, ¶ 18, 452 P.3d 1134.
20200039-CA 7 2021 UT App 98In re Z.C.W.
determinations” that are reviewed “for correctness,” including
the “crucial question” of “what we meant when we remanded
the case for a new trial” (quotation simplified)). Accordingly, we
review the juvenile court’s post-remand procedural decisions for
correctness.
ANALYSIS
¶10 “[T]he Utah Constitution recognizes and protects the
inherent and retained right of a parent to maintain parental ties
to his or her child.” In re J.P., 648 P.2d 1364, 1377 (Utah 1982).
Indeed, our legislature has “declared that ‘a parent possesses a
fundamental liberty interest in the care, custody, and
management of the parent’s child.’” In re B.T.B., 2020 UT 60,
¶ 24, 472 P.3d 827 (quoting Utah Code Ann. § 78A-6-503(1)
(LexisNexis 2017), now recodified at id. § 80-4-104(1) (Supp.
2021)). Before severing this important parent-child bond, a court
must ensure that the party seeking to terminate a parent’s rights
has made a two-part showing by clear and convincing evidence.
See In re F.B., 2012 UT App 36, ¶ 2, 271 P.3d 824 (per curiam); see
also In re B.T.B., 2020 UT 60, ¶¶ 44–54. First, the court must find
grounds for termination under applicable statutory law. See In re
F.B., 2012 UT App 36, ¶ 2; see also Utah Code Ann. § 80-4-301
(LexisNexis Supp. 2021).4 Second, the court “must find that
termination of the parent’s rights is in the best interest[] of the
child.” In re F.B., 2012 UT App 36, ¶ 2; see also Utah Code Ann.
§ 80-4-104(12)(a) (stating that the “best interest of the child” is
4. Since the juvenile court’s post-remand ruling, many sections
of the Utah Code that pertain to juveniles have been recodified
and renumbered. In this opinion we cite the current code
sections for convenience, at least with regard to code sections
that have not been materially altered.
20200039-CA 8 2021 UT App 98In re Z.C.W.
“of paramount importance in determining whether termination
of parental rights shall be ordered”).
¶11 We have explained that the best-interest inquiry “requires
courts to examine all of the relevant facts and circumstances
surrounding the child’s situation.” In re C.C.W., 2019 UT App 34,
¶ 18, 440 P.3d 749 (quotation simplified). “This analysis should
be undertaken from the child’s point of view, not the parent’s.”
In re B.T.B., 2020 UT 60, ¶¶ 63, 64 (quotation simplified). A
child’s best interest can be determined only by considering “the
physical, mental, or emotional condition and needs of the child.”
In re T.E., 2011 UT 51, ¶ 41, 266 P.3d 739 (quoting Utah Code
Ann. § 78A-6-509 (LexisNexis Supp. 2011), now recodified at id.
§ 80-4-303 (Supp. 2021)). “[A]ny evidence that is probative of
what is in the child’s best interest” may be considered. Id. In
sum, the best-interest inquiry is “wide-ranging” and “asks a
court to weigh the entirety of circumstances . . . to determine
what is in the best interest of the child under all of the
circumstances,” In re J.M., 2020 UT App 52, ¶ 35, 463 P.3d 66,
with the court’s focus being “firmly fixed on finding the
outcome that best secures the child’s well-being,” In re B.T.B.,
2020 UT 60, ¶ 64. A court may not, simply due to concerns about
judicial economy, limit the scope of the best-interest inquiry. See
In re J.J.T., 877 P.2d 161, 164 (Utah Ct. App. 1994) (stating that,
when considering “the best interest[] of a child, a court must be
free from the imposition of artificial constraints that serve
merely to advance the cause of judicial economy”).
¶12 In the context of evaluating the termination of a parent’s
rights, we have stressed that “[c]onsiderations regarding a
child’s welfare are rarely, if ever, static,” and that often “the
child’s environment is constantly evolving.” Id. at 163; see also In
re H.J., 1999 UT App 238, ¶ 45, 986 P.2d 115 (stating that a child’s
“needs and circumstances can, and do, change rapidly,” and in
many cases “the passage of time itself can result in substantially
different circumstances” for a child). For these reasons, the best-
20200039-CA 9 2021 UT App 98In re Z.C.W.
interest inquiry is generally to be conducted in present-tense
fashion, with the effective date of the inquiry being the date of
the hearing, trial, or other judicial determination. In a best-
interest inquiry, the relevant question is almost always this one:
what outcome is in the child’s best interest now?
¶13 This conclusion is bolstered by the language of the current
governing statute. Although this particular language was not in
effect at the time the juvenile court entered its post-remand
findings, our legislature in 2020 added the following language—
as immaterially amended in 2021—to the relevant statute:
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 juvenile court shall consider
[certain factors, including reunification efforts and
kinship placement possibilities].
Utah Code Ann. § 80-4-104(12)(b) (emphasis added). This
statutory language uses the verb “is,” indicating that the best-
interest inquiry is to be undertaken in a present-tense fashion.
See Scott v. Scott, 2017 UT 66, ¶ 24, 423 P.3d 1275 (“Typically, we
understand ‘is’ as a present tense . . . verb . . . . Accordingly, we
assume that the legislature used ‘is’ here as a present-tense
verb.” (quotation simplified)); see also W.N. v. S.M., 424 P.3d 483,
490 (Haw. 2018) (concluding that a lower court erred, post-
remand, by conducting its custody analysis in past-tense fashion
as of the date of the previous trial, and emphasizing that the
governing statute’s present-tense locution “requires the court to
consider if the person ‘is fit and proper’ to care for the minor
child at the time of the contemplated custody award”).
¶14 In situations where we have remanded a case for a trial
court to redo its best-interest analysis, we have sometimes given
explicit instructions for courts to do so in present-tense fashion.
See, e.g., In re H.F., 2019 UT App 204, ¶ 18 n.6, 455 P.3d 109820200039-CA 10 2021 UT App 98In re Z.C.W.
(remanding for a new best-interest analysis, and stating that
“any number of circumstances may have changed since trial, and
the court should take such changes into account in reconsidering
its decision”); Ross v. Ross, 2019 UT App 104, ¶ 20, 447 P.3d 104(remanding for renewed consideration of a parent’s relocation,
including whether such relocation was in the child’s best
interest, and stating that, in reconsidering the relocation
question, the court “should consider the present circumstances
of the parties and the Children and not simply re-litigate the
issues as they were at the time of the now-vacated custody
order”). In this case, unfortunately, our remand instructions
were not quite as explicit. We concluded that “the juvenile
court’s best-interest determination was materially flawed,”
vacated the court’s order on that basis, and remanded “for
proceedings consistent with this opinion,” stating that the court
should “reconsider[]” the best-interest question. See In re C.C.W.,
2019 UT App 34, ¶ 25. We did not directly instruct the court to
undertake that “reconsideration” in a present-tense fashion. In
hindsight, we wish we had been more explicit. But our intent
was that the court would redo its entire best-interest analysis,
this time taking into account the domestic violence evidence, and
that it should undertake that analysis in present-tense fashion,
evaluating best interest as of the time of the post-remand
proceedings. We take this opportunity to clarify that, unless we
direct otherwise in a particular case, courts should assume that
we intend for post-remand best-interest analyses to be
undertaken in a present-tense manner.
¶15 Post-remand application of a present-tense analysis will
not, however, always require a new evidentiary hearing. It may
be that, in certain cases, the situation will not have changed at
all, and the parties will not have any new evidence to present; in
such a situation, given the absence of any new evidence, a
present-tense and past-tense analysis will not differ. In other
situations, a court may examine the proffered new evidence and
conclude that, even assuming the veracity of the new allegations,
20200039-CA 11 2021 UT App 98In re Z.C.W.
the court’s analysis would remain unchanged; such analysis is,
in its own way, a present-tense analysis, even though no new
hearing will be necessary. Cf. In re G.D., 2021 UT 19, ¶¶ 80–82,
491 P.3d 867 (concluding that a lower court appropriately dealt
with proffered new evidence in a termination case when it
concluded that “none of the [new] evidence would have altered
the court’s [previous] decision” (quotation simplified)). In still
other situations, the parties may agree that the new allegations,
even if material, are not disputed; in those cases, a court would
be within its discretion to undertake its present-tense analysis,
including consideration of the new undisputed evidence,
without holding a new evidentiary hearing. And in many other
situations, one or both of the parties may wish to offer new
material disputed evidence; in those cases, a court conducting a
post-remand best-interest analysis will likely need to hold an
evidentiary hearing and make findings regarding the veracity
and the materiality of the new allegations, and will need to
consider whether additional discovery or other pre-hearing
proceedings would be appropriate. See, e.g., W.N., 424 P.3d at 491
(determining that a lower court erred, post-remand, when it
failed to hold an evidentiary hearing to consider new disputed
factual allegations that “would have directly pertained” to the
issue at hand). But regardless of the posture of the particular
case, a court conducting a proper post-remand best-interest
analysis must—in some manner—consider and appropriately
deal with proffered new evidence.
¶16 With these principles in mind, we now examine the
juvenile court’s handling of Mother’s proffered new evidence in
this case. As noted above, the court refused to allow Mother to
amend her petition to include new allegations, and after issuing
its post-remand ruling it denied Mother’s motion for “new trial”
in which Mother again asked the court to consider the new
20200039-CA 12 2021 UT App 98In re Z.C.W.
allegations.5 The court espoused a narrow interpretation of the
remand instructions in our previous opinion, and opted to
conduct a “reconsideration” of the evidence that had been
presented at the 2017 trial, without any consideration of the new
evidence Mother proffered. And the court instructed Mother that
the proper avenue to facilitate adjudication of the new
allegations was to file an entirely new petition for termination of
Father’s parental rights.
¶17 The juvenile court erred by undertaking its best-interest
analysis as of 2017, the date of the previous trial. As discussed
above, the court should have undertaken its best-interest
analysis in present-tense fashion, as of 2019, the date of the post-
remand proceeding. And the court erred by refusing to consider,
in some form, the new evidence proffered by Mother. The court
made no determination that the proffered evidence was
5. On appeal, both Mother and Father spend a significant
amount of energy debating the applicability of rule 59 of
the Utah Rules of Civil Procedure and section 78A-6-1108 of
the Utah Code. See Utah R. Civ. P. 59 (providing the grounds
and procedures for requesting a new trial); Utah Code Ann.
§ 78A-6-1108(2) (LexisNexis Supp. 2021) (“If it appears to the
court that there is new evidence that might affect the court’s
decree, the court shall order a new hearing, enter a decree, and
make any disposition of the case warranted by all the facts and
circumstances and the best interests of the minor.”). We need not
wade further into that debate here, given that the court should
have considered—in some fashion—the new evidence Mother
proffered, even before entering its post-remand findings and
conclusions. In other situations, however, rule 59 and section
1108 may certainly have a role to play in the event that new
evidence comes to light after issuance of a final order or decree.
20200039-CA 13 2021 UT App 98In re Z.C.W.
immaterial or inadmissible;6 we offer our own observation that
at least some of the proffered evidence—in particular, the
allegation that Father has committed additional acts of domestic
violence against additional women—if true, appears to be at
least potentially material and at odds with some of the court’s
post-remand findings. And the court made no effort to ascertain
the extent to which the new evidence was disputed. The court
needed to consider the new evidence in some fashion, rather
than simply relying on previously submitted evidence.
¶18 Mother could, of course, alternatively file a new
termination petition. In such a proceeding, Mother could air all
of the new allegations, and would not be barred by res judicata
from incorporating into her presentation facts found by the court
during the previous proceedings. See In re A.C.M., 2009 UT 30,
¶ 18, 221 P.3d 185 (“We . . . adopt the rule . . . that in child
welfare proceedings res judicata does not bar courts from
considering both newly discovered facts, whether or not they
were knowable at the time of the earlier proceeding, and facts
determined in previous termination proceedings when
considering a later termination petition.”); see also Hardy v.
Hardy, 776 P.2d 917, 922–23 (Utah Ct. App. 1989) (stating that res
judicata does not preclude reconsideration of previously
admitted evidence because res judicata, in this context, is
“subservient to the child’s best interest[]”). But filing a new
termination petition would entail some inefficiencies; as Mother
6. On appeal, Father asserts that the juvenile court must have
determined, sub silentio, that the allegations proffered by
Mother would not have made any difference to its analysis, even
if true. We do not read the court’s orders the same way. As we
interpret them, the court did not reach that analytical step at all,
because it undertook a past-tense (rather than a present-tense)
analysis. And in any event, as noted, in our view at least some of
Mother’s proffered evidence is at least potentially probative.
20200039-CA 14 2021 UT App 98In re Z.C.W.
pointed out at oral argument before this court, if a new petition
were filed the juvenile court would be required to start from
scratch, and re-adjudicate the entire case, including the
“statutory grounds” portion that is no longer in dispute here.
Moreover, the mere fact that Mother has the option of filing
another action does not mean that her preferred option is
thereby foreclosed. When two valid procedural litigation options
exist, it is up to the litigant to choose which one to utilize. See,
e.g., Utah Stream Access Coal. v. VR Acquisitions, LLC, 2019 UT 7,
¶ 36, 439 P.3d 593 (“[A] core component of our adversary system
[is] the notion that the plaintiff is the master of the complaint.
We leave it to the parties to plead claims and defenses in the
time and manner designated by our rules.”). A court may not
close one door simply because another one exists, even if the
court considers the litigant’s preferred option inefficient. See In re
J.J.T., 877 P.2d 161, 164 (Utah Ct. App. 1994) (stating that, when
considering “the best interest[] of a child, a court must be free
from the imposition of artificial constraints that serve merely to
advance the cause of judicial economy”); cf. AFA Distrib. Co. v.
Pearl Brewing Co., 470 F.2d 1210, 1213 (4th Cir. 1973) (stating that
federal courts asked to exercise diversity jurisdiction “cannot
close the door to the federal courts merely because [a diversity]
case involves a difficult question of state law”).
CONCLUSION
¶19 The juvenile court erred by conducting a past-tense—
rather than a present-tense—analysis while reconsidering best
interest during its post-remand proceedings. The best-interest
inquiry is, in most cases, not to be based on a snapshot from the
past. Rather, a proper best-interest inquiry requires evaluating
all relevant past and present circumstances bearing on a child’s
welfare as of the date of the proceeding. Where an appellate
court remands a case for a trial court to redo its best-interest
analysis, that analysis should generally be conducted as of the
20200039-CA 15 2021 UT App 98In re Z.C.W.
date of the post-remand proceedings, and the court must
consider, in some fashion, any new evidence proffered by the
parties.
¶20 Accordingly, we vacate the juvenile court’s order
dismissing Mother’s petition, and we again remand for the
juvenile court to redo its best-interest analysis, this time doing so
in a present-tense fashion, and not as of 2017 or as of 2019. We
once again express no opinion on the substance of the best-
interest question, and emphasize that our opinion should not be
construed as urging one outcome or another on remand.
20200039-CA 16 2021 UT App 98