In re C.Z.

2021 UT App 28THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF C.Z.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.
M.Z.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20200227-CA
Filed March 12, 2021
Third District Court, Salt Lake Department
The Honorable Mark W. May
No. 1156353
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
JUDGE DIANA HAGEN authored this Opinion, in which JUDGE
GREGORY K. ORME and SENIOR JUDGE KATE APPLEBY concurred. 1
HAGEN, Judge:
¶1 M.Z. (the father) appeals the juvenile court’s termination
of his parental rights to his son, C.Z. (the child). We conclude
that the State proved by clear and convincing evidence that the
father had not remedied the circumstances that led to the child’s
1. Senior Judge Kate Appleby sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
In re C.Z.
removal and affirm the juvenile court’s termination of the
father’s parental rights.
BACKGROUND
¶2 The child was born in May 2017. 2 In December 2017,
C.Z.’s mother (the mother) was charged with aggravated assault
and domestic violence in the presence of a child for stabbing the
father in the chest in front of the child. At the time, the mother
was already under juvenile court jurisdiction for criminal
trespass and habitual truancy. The juvenile court issued a no-
contact order between the mother and the father and ordered
that the child be assessed as “at risk of removal” from the
mother’s care.
¶3 Throughout January and February 2018, the Division of
Child and Family Services (DCFS) “worked with the family in
devising a safety plan for the child to remain” in the home with
the mother. DCFS reported that the mother had several
“thinking errors,” including her beliefs that she did not need to
abide by the no-contact order, did not need therapy, and that
there was no harm in smoking marijuana while breastfeeding
the child. DCFS also reported that the father and mother had
smoked marijuana in the presence of the child on multiple
occasions, including one instance where the father was caught
smoking in the mother’s family’s house, resulting in the family’s
eviction. At the end of February, the mother was ordered “to be
held in the Salt Lake Valley Detention Center” for a brief period.
¶4 In March 2018, DCFS again attempted to meet with the
mother to establish a safety plan so the child could remain in her
custody. The mother missed the meeting, and DCFS received a
2. The mother and the father were not married at the time of the
birth, but the father’s paternity was undisputed and officially
established prior to the dependency adjudication in March 2018.
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report that she had been smoking marijuana and had violated
the no-contact order by spending the weekend with the father.
As a result, the State filed a motion for the child’s expedited
placement in temporary custody. At the shelter hearing, the
juvenile court granted the motion, placing the child in the
temporary custody of DCFS. At a follow-up hearing later that
month, the court made official findings. In relation to the
mother, the court found the child was “neglected” under Utah
Code subsection 78A-6-105(41). In relation to the father, the court
found the child was “[d]ependent” under Utah Code subsection
78A-6-105(14), meaning that the child was deemed “homeless or
without proper care through no fault of the child’s parent,
guardian, or custodian.”
¶5 Two months later, in May of 2018, the court held a
disposition hearing to establish permanency goals for the child
pursuant to Utah Code section 78A-6-312. The court determined
that the child’s primary permanency goal would be “first and
foremost reunification” with the parents and “the concurrent
plan” would be “adoption.” The court ordered DCFS to
“provide reunification services to the parents consistent with the
services identified in the service plan.” The court ordered all
parties to follow the service plan, which included a requirement
that the parents complete domestic violence assessments. After
father’s counsel raised concerns that the father would “get
assessed as a perpetrator rather than a victim,” the court ordered
that the plan be “amended to have the father participate in a
[domestic violence] class as a victim.”
¶6 At the first child welfare review hearing in July 2018, the
court authorized unsupervised visits for the father, but not for
the mother, whose parent-time continued to be supervised. The
caseworker noted that the parents still seemed to be spending
time together and suggested couples therapy if they hoped to co-
parent someday. The court lifted the no-contact order but
warned the parents that it was for the purpose of domestic
violence therapy only and “that doesn’t mean you drop by any
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time you want.” At the next child welfare review hearing, in
September 2018, the court found that both parents were “doing
really well” and “marching toward reunification.”
¶7 The steady progress did not continue, however. At the
third child welfare review in December 2018, the court found
that the mother was smoking marijuana again, the father was
not following through with his therapy and, most alarming,
there had been another domestic violence incident in the
presence of the child on Thanksgiving Day. The parents,
apparently living together again, fought about the child’s nap,
and the mother hit the father in the face. He responded by
pushing her away by the throat. She grabbed him by the hair
and tried to prevent him from leaving. Once he got away, the
father ran to a nearby school, where the responding police
officer found him with a bloody nose and no shoes. The officer
cited the mother as “the predominant aggressor” but allowed
the father to remain in the home because, the officer later
testified, the father “basically wanted to go back because he said
his child was a ward of the State, that this was the only time they
got to spend time with him.” The juvenile court warned both
parents this was “a step back” and warned the father in
particular about the domestic violence, saying, “You have to go
to therapy. . . . [Y]ou’ve got to do all these things” and there is
“not a lot of time left.” The court informed both parents that, if it
was not safe for the child to return home by the time of the final
permanency hearing, the court would have no choice but to
“terminate services” toward reunification and instead move
toward adoption, and “[n]obody wants to go down that road.”
¶8 The final child welfare review hearing was sixty days
later, in February 2019. Report of the parents’ progress was still
mixed. The State expressed ongoing concerns about the father’s
ability to “hold boundaries with Mom and keep kiddo safe.” The
DCFS caseworker also reported that the father’s attendance at
therapy had not been consistent, although father’s counsel
complained that the father still had not received enough of the
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type of specialized domestic violence therapy he needed as a
victim. The court informed the parents that if the permanency
hearing were that day, it could not return the child to them. The
court warned the father, in particular, that if reunification of the
child with the mother was not going to be possible, the father
had better start giving “full effort” and decide, “Is this what you
want?”
¶9 At the permanency hearing on March 19, 2019, the court
found that “return to the home would be contrary to the welfare
of the child at [that] time.” But, the court did find, by a
preponderance of the evidence that there had been substantial
compliance, reunification was probable within ninety days, and
an extension would be in the best interest of the child. The court
warned the parents that the report in ninety days had “better be
a great report.”
¶10 At the continued permanency hearing on May 30, 2019,
the DCFS caseworker reported that the father “had been fully
engaged” and wanted reunification to continue, but the mother
had “reached the point that she believe[d] that she’s not in the
child’s best interest” and was ready to relinquish her parental
rights voluntarily. The caseworker also expressed concern that
the parents were apparently living together even though the
father reported moving out of the mother’s residence several
months earlier. The guardian ad litem reported that she did not
feel it was safe to return the child to either parent that day. She
had particular concern about the father’s “relationship with the
mother.” The court gave the father one more extension, but with
the following warning:
[T]here’s continued domestic violence . . . . [E]ven
if [the father] is the victim, he was stabbed the first
time and he went back into that relationship with
his child, and then there’s been another domestic
violence incident, and they’re still together . . . . He
20200227-CA 5 2021 UT App 28In re C.Z.
is supposed to be in treatment, and he hasn’t gone
....
....
Dad, you have to get in treatment. I mean that’s the
bottom line. I don’t need any more excuses. You
have to be in treatment. You keep going back to a
toxic relationship, and if you’re going to do that,
then whatever her baggage is is your baggage.
That’s the way the law works.
¶11 At that final permanency hearing in August 2019, the
court found that returning the child to the father would create a
substantial risk of detriment to the child’s physical or emotional
well-being. The court explained, “[T]he law is pretty firm and
. . . at this point I can’t give another extension, and it’s not safe
today to send the child home. So under the law, . . . I have to
terminate reunification services, I have to change the goal to
adoption.”
¶12 The State filed a petition for termination of parental
rights, and the court set the matter for trial. In the interim, the
mother voluntarily relinquished her parental rights.
¶13 At trial in January 2020, the State presented evidence of
the father’s continued unhealthy relationship with the mother.
The father’s therapist, provided by DCFS, testified that the father
had “symptoms of post-traumatic stress disorder” as a result of
“having been attacked by” the mother. Nevertheless, the father
testified that the mother had accompanied him on the last few
visits with the child, after she voluntarily relinquished her
parental rights. The foster parent, who dropped off the child for
visits with the father, testified that the mother was with the
father at every visit in December and January. When the State
asked the father why the mother went along, he answered twice
that the mother “wanted to see” the child and the father had
never gotten a clear answer from the case worker as to whether
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that was allowed. The child’s guardian ad litem asked the court
to expressly order that the mother was not allowed to attend
visits with the child.
¶14 In February 2020, the juvenile court entered an order
terminating the father’s parental rights. Applying a clear-and-
convincing-evidence standard, the court made extensive factual
findings and concluded that those findings supported four
statutory grounds for termination: (1) that the father had been
“an unfit or incompetent parent of his child”; (2) that the child
had “been cared for in an out-of-home placement under the
supervision” of DCFS, the father had “substantially neglected,
willfully refused, or ha[d] been unable or unwilling to remedy
the circumstances that cause[d] the child to be in an out-of-home
placement,” and “there [was] a substantial likelihood that the
parent [would] not be capable of exercising proper and effective
parental care in the near future”; (3) that there had been a failure
of parental adjustment; and (4) that the father had made “only
token efforts to provide support” for the child. See Utah Code
Ann. § 78A-6-507(1)(c)–(f) (LexisNexis Supp. 2020). The court
concluded that, “based on the totality of the evidence, it [was] in
[the child’s] best interest to be adopted by the foster parents”
and that it was “strictly necessary to terminate the father’s
parental rights to permit that adoption.”
ISSUE AND STANDARD OF REVIEW
¶15 The father contends that the juvenile court erred in
terminating his parental rights. “Whether a parent’s rights
should be terminated presents a mixed question of law and
fact.” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435. “The ultimate
conclusion that a parent is unfit or that other grounds for
termination have been established is a legal question.” In re L.M.,
2019 UT App 174, ¶ 5, 453 P.3d 651 (per curiam) (cleaned up).
But because “such decisions rely heavily on the juvenile court’s
assessment and weighing of the facts in any given case,” that
“decision should be afforded a high degree of deference.” Id.
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(cleaned up). Thus, we will overturn the juvenile court’s decision
only when that decision is “against the clear weight of the
evidence.” Id. (cleaned up). A decision is against the clear weight
of the evidence when the court “either failed to consider all of
the facts or considered all of the facts and its decision was
nonetheless against the clear weight of the evidence.” See In re
B.R., 2007 UT 82, ¶ 12. Indeed, “an appellate court must be
capable of discriminating between discomfort over a trial court’s
findings of fact—which it must tolerate—and those that require
a court’s intercession. It must forebear disturbing the ‘close
call.’” In re Z.D., 2006 UT 54, ¶ 33, 147 P.3d 401 (cleaned up).
ANALYSIS
¶16 Utah law recognizes that “the right of a fit, competent
parent to raise the parent’s child without undue government
interference is a fundamental liberty interest . . . and is a
fundamental public policy of this state.” In re Adoption of K.A.S.,
2016 UT 55, ¶ 25, 390 P.3d 278 (cleaned up); see also Utah Code
Ann. § 62A-4a-201(1)(c) (LexisNexis Supp. 2020). 3 Indeed, there
is a “strong . . . presumption that it is in a child’s best interests to
be in the custody of his or her natural parent.” In re J.M.V., 958
P.2d 943, 947 (Utah Ct. App. 1998). But, “parental rights are not
absolute. A parent’s rights must be balanced against the state’s
important interest in protecting children from harm.” In re J.A.,
2018 UT App 29, ¶ 44, 424 P.3d 913 (cleaned up).
¶17 In this case, the child was adjudicated dependent as to the
father in March 2018, shortly after the initial shelter hearing that
placed the child in DCFS custody. Utah Code Ann. § 78A-6-
105(14) (LexisNexis Supp. 2020). A determination of dependency
rebuts “the presumption that the child is best served by being in
the parent’s custody.” In re J.M.V., 958 P.2d at 948. But even
3. Where, as here, amendments to a statute do not affect the
issues in this case, we refer to the current version of the statute.
20200227-CA 8 2021 UT App 28In re C.Z.
though the parental presumption does not apply, the
petitioner—in this case, the State—always has the burden to
“establish the facts” justifying termination by “clear and
convincing evidence.” See Utah Code Ann. § 78A-6-506(3)
(LexisNexis 2018).
¶18 “To terminate parental rights, a juvenile court must make
two separate findings.” In re C.T., 2018 UT App 233, ¶ 12, 438
P.3d 100 (cleaned up). First, the “court must find by clear and
convincing evidence that there is at least one statutory ground
for termination.” Id. (cleaned up). Second, “the court must assess
what is in the child’s best interest” and determine “whether
termination is strictly necessary to promote the child’s welfare
and best interest.” In re B.T.B., 2020 UT 60, ¶ 76, 472 P.3d 827.
¶19 The father’s arguments on appeal are limited to
challenging the first step in the juvenile court’s analysis—
whether a statutory ground for termination was established by
clear and convincing evidence. Where the juvenile court finds
multiple grounds for termination, “we will affirm when we are
able to sustain one of the grounds and need not consider the
other grounds relied on by the court.” In re D.M., 2020 UT App
59, ¶ 10, 462 P.3d 1278; see also Utah Code Ann. § 78A-6-507(1)
(LexisNexis Supp. 2020) (stating that “the court may terminate
all parental rights with respect to the parent if the court finds
any one” statutory ground).
¶20 We focus our analysis on the juvenile court’s conclusion
that termination of parental rights was justified because the
father failed to remedy the circumstances causing the child’s
removal under Utah Code subsection 78A-6-507(1)(d) (Supp.
2020). 4 To terminate parental rights on this ground, the court
must find,
4. Because we do not address unfitness as an alternative ground
for termination, we have no need to reach the father’s argument
(continued…)
20200227-CA 9 2021 UT App 28In re C.Z.
(i) that the child is being cared for in an out-of-
home placement under the supervision of the court
or the division;
(ii) that the parent has substantially neglected,
willfully refused, or has been unable or unwilling
to remedy the circumstances that cause the child to
be in an out-of-home placement; and
(iii) that there is a substantial likelihood that the
parent will not be capable of exercising proper and
effective parental care in the near future.
Utah Code Ann. § 78A-6-507(1)(d).
¶21 In this case, the child was in an out-of-home placement
under the supervision of the court and DCFS. The
“circumstances” that had caused the child to be placed in foster
care included the child’s dependency status and the child’s
exposure to domestic violence. The evidence supports the
juvenile court’s finding that the father failed to remedy either of
those circumstances. 5
(…continued)
that the juvenile court “improperly deferred to the caseworker
regarding the ultimate issue of unfitness.”
5. In applying this provision, the juvenile court did not
improperly shift the burden to the father to demonstrate his
fitness as a parent. Although the parent has a responsibility to
remedy the circumstances that led to removal, Utah Code Ann.
§ 78A-6-507(1)(d), the State has the burden of proving by clear
and convincing evidence that the parent failed to do so, id.
§ 78A-6-506(3). The court properly applied that burden in this
case.
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¶22 First, the father was unable to remedy the circumstances
that led to the removal of the child based on the dependency
adjudication. To remedy those circumstances, the father needed
to ensure that he could provide a home and proper care for the
child. See id. §§ 78A-6-105(14), -507(1)(d).
¶23 Although the father made progress at maintaining
employment and ending his drug use, he bounced back and
forth between living with the mother and staying at his father’s
house where the conditions were unsuitable for a child. Even if
the father assumed until late in the child welfare proceedings
that the mother would provide the primary home for the child,
the court warned him to be prepared to step up when it
appeared doubtful that the child would be reunited with the
mother. The court found that the father, having gone through
the two previous permanency hearings, was aware that by the
final permanency hearing “changes in his life had to be in place”
so “that it was safe for [the child] to return to him that day.”
¶24 Despite having eighteen months to achieve such stability,
the father did not have appropriate housing or a plan for
childcare until three days before the final permanency hearing.
Given the father’s track record, the juvenile court was skeptical
about the stability of these last-minute living and childcare
arrangements. “The weight which a juvenile court must give any
present ability evidence is necessarily dependent on the amount
of time during which the parent displayed an unwillingness or
inability to improve his or her conduct.” In re B.R., 2007 UT 82,
¶ 13, 171 P.3d 435 (cleaned up). Therefore, “if a parent has
demonstrated some improvement in parenting ability but not a
strong likelihood that the parent can provide a proper home for
the child in the very near future,” we cannot “overturn a court’s
order terminating parental rights.” Id. (cleaned up). After
eighteen months of services, the father had not progressed to
even a single overnight visit with the child and had exhausted
all possible extensions of time. The court reasonably concluded
that the father’s efforts were “far too little far too late.”
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¶25 Perhaps more importantly, the father failed to protect the
child from exposure to domestic violence by the mother. The
mother’s serious assault on the father in the presence of the child
was one of the circumstances that led to the child’s removal.
Despite a no-contact order, the father continued spending time
with the mother, and there was another incident of domestic
violence in the presence of the child on Thanksgiving Day. Even
after the juvenile court terminated the mother’s parental rights,
the father continued bringing her to visits with the child, placing
the child in an unsafe environment.
¶26 That evidence supported the court’s finding that the
father “and the mother still have an ongoing relationship” and
that the father “would likely allow the mother to parent” the
child. The court found that “the mother is an unfit parent” and
that allowing her to parent was “of serious concern because: (a)
the mother stopped participating in services; (b) the mother was
the aggressor in the domestic violence incidents; (c) she had
positive drug tests on the rare occasions when she chose to test;
and (d) the mother voluntarily relinquished her parental rights.”
The father’s choice to remain involved with the mother—
whether romantically or as a co-parent—placed the child at
continued risk.
¶27 The father points to evidence that he received mixed
messages from the caseworker about his relationship with the
mother and whether she was permitted to join him for visits
with the child. But the juvenile court was “in the best position to
weigh [this] conflicting testimony, to assess credibility, and from
such determinations, render findings of fact.” See In re J.H., 2012
UT App 195, ¶ 2, 283 P.3d 971 (per curiam). We will not overturn
the juvenile court’s determinations unless they are against the
clear weight of the evidence. See In re Z.D., 2006 UT 54, ¶ 33, 147
P.3d 401. The existence of the no-contact order, as well as the
court’s admonitions to the father, support the conclusion that the
father had “chosen to remain with the mother” despite the
danger posed to the child.
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¶28 The father also argues that the juvenile court “abused its
discretion in not properly evaluating [him] as a domestic
violence survivor.” Specifically, the father suggests that the court
employed something of a double standard and analyzed his
“reactions to domestic violence perpetrated upon him differently
than a female victim.” We disagree. The juvenile court ordered
that the father be provided treatment as a victim and faulted the
mother for the domestic violence.
¶29 We recognize that “extricating oneself from an abusive
relationship can pose an extremely difficult hurdle for victims of
domestic abuse,” regardless of gender. See In re L.M., 2019 UT
App 174, ¶ 8, 453 P.3d 651 (per curiam). Nevertheless, we have
consistently held that a juvenile court faced with a victim parent
who does not leave the abusive relationship “may find that the
parent has failed to remedy the circumstances that led to a
child’s removal.” Id. For example, in In re T.M., we affirmed the
termination of a father’s parental rights in part because he had
“effectively prioritized his relationship with” his abusive spouse
over the protection of his children. 2006 UT App 435, ¶ 9, 147
P.3d 529. In that case, the juvenile court found that “although
[the father] completed most of the treatment plan—albeit a
significant portion only in the eleventh hour, . . . he [had] been
unable to quit his self-described ‘addiction’ to [the mother], and
his unwillingness to give up his ongoing relationship with [the
mother] . . . endanger[ed] the [c]hildren.” Id. ¶ 9. We agreed,
stressing that the father’s “present and ongoing failure to detach
himself from this relationship and protect the [c]hildren from
exposure to [the mother was] especially significant to the court’s
finding of unfitness.” Id. ¶ 19. This court has reached the same
conclusion in numerous cases where the mother was the victim
of domestic violence. See, e.g., In re L.M., 2019 UT App 174, ¶¶ 3,
6–7, 11 (holding that “the evidence was sufficient to support the
juvenile court’s determination that [the mother] had failed to
remedy the circumstances leading to [the child’s] removal”
where mother did not show up to domestic violence victim
therapy appointments, “had not internalized the lessons from
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the domestic violence therapy,” and brought [the father] to visits
after his parental rights had been terminated); In re F.M., 2002
UT App 340, ¶¶ 3, 7–8, 57 P.3d 1130 (affirming termination of
mother’s parental rights where evidence showed she had co-
dependent relationship with abusive father, had talked about
leaving father long enough to regain custody of the children and
then going back to him, and then had contact with him just two
weeks before the termination trial); In re G.B., 2002 UT App 270,
¶ 17, 53 P.3d 963 (affirming termination of mother’s parental
rights where mother claimed she had complied with the service
plan, but juvenile court found that she continued to reside in a
home with the abusive father, and had no intention of separating
from him); In re G.D., 894 P.2d 1278, 1280 (Utah Ct. App. 1995)
(affirming termination of mother’s parental rights in part
because she “failed to sever all relationships with the father
within a reasonable time” and failed to “eliminate the risk of
continued abuse”).
¶30 In these cases, juvenile courts are not “unnecessarily
drawing negative inferences from a [victim’s] decision to
maintain a relationship with the batterer.” In re C.C.W., 2019 UT
App 34, ¶ 19 n.4, 440 P.3d 749. Rather, they are focusing on the
well-being of the child, whose safety is of primary importance,
by assessing whether the parent’s ongoing refusal to sever the
relationship poses a continuing threat to the child. Domestic
violence has a negative effect on a child even if the child is not
the direct recipient of or witness to the violence. See id. ¶ 20,(recognizing that children in these situations learn lessons such
as “that the violence toward a loved one is acceptable” and that
“coercive power and violence” are “a way to influence loved
ones[,]” and noting that such children “fail to grasp the full
range of negative consequences for the violent behavior”
(cleaned up)). “Utah case law indicates that courts have minimal
empathy for parents whose strong emotional ties to their
spouses or significant others jeopardize their children’s safety.”
In re T.M., 2006 UT App 435, ¶ 20. Here, the juvenile court’s
conclusion that the father had not remedied the circumstances
20200227-CA 14 2021 UT App 28In re C.Z.
that led to removal was supported by clear and convincing
evidence that he was unable or unwilling to extricate himself
from a relationship with the mother that was toxic and that
posed an ongoing threat to the child.
¶31 In concluding that the father failed to remedy the
circumstances that led to the child’s removal and would not be
capable of exercising proper and effective parental care in the
near future, the juvenile court noted that it “truly struggled with
this decision.” It “extended reunification services twice,
admittedly based on sympathy for [the father’s] circumstances
as opposed to strict compliance with the statutes governing
extension of services.” But permanency adjudication occurs on a
strict timeline because the passage of time seriously affects the
child waiting in “legal limbo.” See In re S.L., 1999 UT App 390,
¶ 42, 995 P.2d 17 (explaining that the “overarching purpose” of
our child welfare laws “is to provide stability and permanency
for abused and neglected children, and to end the ‘legal limbo’ of
state custody as quickly as possible” (cleaned up)). And, as the
juvenile court found, “[t]he length of time that [the child] has
been out of the home relative to his age and the length of time
that it took [the father] to . . . become stable had a significant
destructive effect on their parent/child relationship.” Viewing
the record as a whole, the juvenile court’s finding that the father
had not remedied the circumstances that had created the out-of-
home placement was not against the clear weight of the
evidence.
CONCLUSION
¶32 We conclude that there was sufficient evidence to support
the juvenile court’s finding under Utah Code subsection 78A-6-
507(1)(d) that the father had failed to remedy the circumstances
that caused the child’s out-of-home placement. This is true as to
both the child’s dependency status and the risk of exposure to
domestic violence. Accordingly, we affirm the juvenile court’s
termination of the father’s parental rights.
20200227-CA 15 2021 UT App 28