In re C.C.W.

2019 UT App 34THE UTAH COURT OF APPEALS
IN THE INTEREST OF C.C.W. AND Z.C.W.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
R.D.T. AND GUARDIAN AD LITEM,
Appellants,
v.
C.L.W.,
Appellee.
Opinion
No. 20170360-CA
Filed March 7, 2019
Third District Juvenile Court, West Jordan Department
The Honorable Renee M. Jimenez
No. 1135445
Troy L. Booher, Julie J. Nelson, Erin B. Hull, and
Shane A. Marx, Attorneys for Appellant R.D.T.
Martha Pierce, Attorney for Appellant
Guardian ad Litem
David Pedrazas, Attorney for Appellee
JUDGES RYAN M. HARRIS and MICHELE M. CHRISTIANSEN FORSTER
jointly authored this Opinion. JUDGE GREGORY K. ORME
concurred in the result.
HARRIS and CHRISTIANSEN FORSTER, Judges:
¶1 R.D.T. (Mother) petitioned the juvenile court to terminate
the parental rights of her ex-husband, C.L.W. (Father), as to their
children, C.C.W. and Z.C.W. (collectively, the Children). After
Mother presented her case-in-chief, Father asked the court to
dismiss Mother’s petition. The court granted the motion on the
ground that—although Father had abandoned the Children and
In re C.C.W.
had twice been incarcerated for violently attacking Mother and,
later, another woman—it was not in the Children’s best interest
to terminate Father’s parental rights. Mother and the Guardian
ad Litem (the GAL) appeal, contending that the court misapplied
the law to the facts. In one significant respect, we agree, and
therefore vacate the juvenile court’s determination and remand
for further proceedings consistent with this opinion.
BACKGROUND
¶2 Mother and Father married in September 2005. Z.C.W.
was born in August 2006 and C.C.W. in January 2009. Shortly
after C.C.W. was born, and when Z.C.W. was three years old,
Father brutally attacked Mother and threatened to kill her at
gunpoint after the two had an argument about Father’s
infidelity. Father was charged with aggravated kidnapping and
two counts of aggravated assault, and ultimately pled guilty to
kidnapping and aggravated assault. The court presiding over his
criminal case sentenced him to prison, where he was
incarcerated from April 2010 to March 2013.
¶3 While Father was incarcerated, Mother filed for divorce,
and a divorce decree was entered in 2010 that awarded Mother
sole physical custody of the Children. Mother and Father have
each remarried thereafter.
¶4 In 2014, one year after his release from prison, Father
violated his parole by leaving the state, attacked another woman
in Missouri, and later pled guilty to domestic assault. For this
crime, he was incarcerated in Missouri from May 2014 to
December 2016.
¶5 In October 2016, just before Father was released from
prison for the second time, Mother petitioned the juvenile court
to terminate Father’s parental rights. Mother filed the petition
because she believed, among other things, that Father had
20170360-CA 2 2019 UT App 34In re C.C.W.
abandoned the Children, and because she believed that
reintroducing Father into the Children’s lives would be
disruptive and potentially violent. The case proceeded to trial.
¶6 After Mother presented her case-in-chief, but before he
put on any evidence of his own, Father asked the court to
dismiss Mother’s petition. The juvenile court granted Father’s
motion and entered findings of fact and conclusions of law,
wherein it found that Father had abandoned the Children but
that Mother had not shown that it was in the Children’s best
interest to terminate Father’s parental rights.
¶7 The juvenile court first found that there were grounds for
termination because Father did not attempt to communicate at
all with the Children beginning in 2012, during his first
incarceration, and through 2016 when Mother filed her
termination petition. Significantly, Father did not attempt to
communicate with the Children during the year between his two
terms of incarceration, even though an order of therapeutic
reintroduction had been entered to reestablish Father’s
relationship with the Children. The court found that, rather than
take advantage of this opportunity, Father left the state, violated
his parole, and committed another assault. As a result of Father’s
neglect of his parental responsibilities, the court found that he
destroyed the parent-child relationship. Accordingly, the court
found that Father had abandoned the Children.
¶8 The court also found that Mother’s testimony regarding
Father’s attack on her was credible. In the court’s words,
“Father’s crimes were extremely violent, and they caused his
victims, [Mother] in particular, unthinkable physical and
emotional injuries.” 1 Notwithstanding this determination, the
1. While the juvenile court’s finding is accurate, it lacks detail
and uses relative terms. Mother’s testimony regarding the attack,
credited by the juvenile court, bears fuller explication. The attack
(continued…)
20170360-CA 3 2019 UT App 34In re C.C.W.
court found that Father’s history of violence toward women did
not make him an unfit parent because those acts were against
adults, not children. In particular, the juvenile court stated that,
while Father’s “crimes may have made him a terrible husband,
. . . assaulting your spouse or another person[] does not
necessarily mean that you are unable to fulfill your duties as a
parent.” The court found it significant that “[t]here is no
evidence that [Father] is an inherently violent person or that he
has been violent with his own or other children.”
¶9 Having found that there were grounds for termination—
namely, abandonment—the court began its best-interest
analysis. The court found that under Mother’s care, the Children
were good students, excelled in extracurricular activities, and
enjoyed “security and stability.” Somewhat contradictorily, the
court then stated that Mother “has not necessarily had
consistently stable relationships in her own life which [h]as
resulted in some instability or inconsistency in the [C]hildren’s
lives.” The court added that the Children “have experienced a
changing landscape of parental figures during their entire lives,
(…continued)
lasted over two hours, during which Father (1) grabbed Mother
by the neck and threw her against a wall “from one place to the
other,” denting the sheetrock; (2) repeatedly choked Mother to
the point that she could not breathe, causing her to gasp for air
and briefly lose consciousness; (3) ordered her to the basement,
where he interrogated her at gunpoint; (4) punched, slapped,
and hit Mother in the face and head with a gun; (5) threatened to
kill Mother with the gun; (6) smothered Mother’s face in a
pillow, causing Mother to gasp for air, and pressed the gun
against the pillow and asked, “Now that you think you’re going
to die, are you finally going to tell me the truth?”; and (7) after
leaving the house in a car with Mother to take formula and
diapers to Mother’s parents who were watching the Children,
threatened to kill Mother if she left the car.
20170360-CA 4 2019 UT App 34In re C.C.W.
and two of these significant changes have nothing to do with
[Father].” The court stressed that, at the time, there was no plan
for Mother’s current spouse to adopt the Children, and therefore
“there is no other individual, step-parent or otherwise, available
to take over that legal parental role.” However, the court also
found that Mother’s spouse was “developing a parent
relationship” with the Children.
¶10 The court found that the Children have not asked about
Father and “have no information” about him. But the court
expressed its view that “Father’s circumstances are different
now.” Although Father suffers from post-traumatic stress and
bipolar disorders, he “obtained treatment for his mental health
needs while incarcerated and he currently receives therapy and
medication management” through the federal government’s
Department of Veterans Affairs. Since being released from
prison, Father has been “a coach and a mentor to other
children.” Father now resides with his second wife and two
stepchildren. He has also maintained contact with his older
daughter who is the Children’s half-sister and whom the
Children know. The court stressed that Father “does not have
the ability to ever assume full custody of the [C]hildren,” that he
is willing to participate in reunification services, and that he
“desires the opportunity to provide love, support and guidance
to the [C]hildren.” The court specifically found that, if the
reunification process were “done properly, Father could be a
positive person in the [C]hildren’s lives . . . . There are adequate
and protective measures built into the reunification process that
take into consideration the [C]hildren’s needs.” The court
concluded that “[t]here is insufficient evidence that [Father]
exercising parent-time with the [C]hildren would cause
significant harm or risk of harm to the [C]hildren’s physical,
mental or emotional well-being.”
¶11 Also, during its best-interest determination, the court
found it significant that the Children might be eligible to receive
support payments from the federal government as a result of
20170360-CA 5 2019 UT App 34In re C.C.W.
Father’s military service. While Father was incarcerated, Mother
was able to apply for an apportionment of his benefits to be used
as support for the Children. During Father’s incarcerations, the
Children obtained approximately $38,000 in support. The court
found that these payments amounted to child support.
¶12 After considering all of its findings, the court concluded
that there were no “compelling reasons to terminate [Father’s]
parental rights and that it [was] not strictly necessary to
terminate [Father’s] parental rights.”
ISSUE AND STANDARD OF REVIEW
¶13 Mother and the GAL contend that the juvenile court erred
in granting Father’s motion to dismiss, asserting that Mother
presented clear and convincing evidence that Father’s parental
rights should be terminated. A court may grant such a motion “if
(1) the claimant has failed to introduce sufficient evidence to
establish a prima facie case, or (2) the trial court is not persuaded
by that evidence.” In re J.A., 2018 UT App 29, ¶ 26, 424 P.3d 913(quotation simplified). 2
2. At the time he made his motion, Father cited rule 41(b) of the
Utah Rules of Civil Procedure. A previous version of that rule
stated that, “[i]n a bench trial, after the plaintiff ‘has completed
the presentation of [her] evidence, the defendant . . . may move
for dismissal on the ground that upon the facts and the law the
plaintiff has shown no right to relief.’” See In re J.A., 2018 UT
App 29, ¶ 26, 424 P.3d 913 (quoting the 2015 version of rule 41 of
the Utah Rules of Civil Procedure). As we noted in In re J.A., rule
41(b) was amended in 2016, and now speaks only of motions to
dismiss for failure to prosecute. Id. ¶ 26 n.4; see also Utah R. Civ.
P. 41(b). Under the current version of the rules, it is rule 52(e) of
the Utah Rules of Civil Procedure that allows a party to move for
(continued…)
20170360-CA 6 2019 UT App 34In re C.C.W.
¶14 In this case, although the juvenile court determined that
statutory grounds existed to terminate Father’s parental rights,
the court granted Father’s motion on best-interest grounds,
concluding that the evidence Mother presented in her case-in-
chief did not provide “compelling reasons” to terminate Father’s
rights. Because termination decisions “rely heavily on the [trial]
court’s assessment and weighing of the facts in any given case,”
its decision “should be afforded a high degree of deference.”
In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435. For us “to overturn the
[trial] court’s decision the result must be against the clear weight
of the evidence or leave [us] with a firm and definite conviction
that a mistake has been made.” Id. (quotation simplified).
ANALYSIS
¶15 Mother and the GAL contend that the juvenile court
misapplied the law to the facts. While expressing no opinion on
the ultimate decision to be made in this case, we agree that the
juvenile court’s analysis was materially flawed and that remand
is therefore required.
¶16 Under Utah law, before terminating a parent-child
relationship, a court must find (1) that there are grounds for
termination and (2) that terminating parental rights is in the
child’s best interest. Utah Code Ann. § 78A-6-506(3) (LexisNexis
(…continued)
dismissal at the close of the other side’s evidence. See Utah R.
Civ. P. 52(e); see also id. advisory committee note (stating that
“the 2016 amendments move a provision found in Rule 41(b) to
this rule”). In this case, the parties and the juvenile court appear
to have been applying the 2015 version of the rules in making
and adjudicating the motions at issue. But in any event, the
standard of review is the same, regardless of whether the motion
is grounded in rule 41(b) or rule 52(e).
20170360-CA 7 2019 UT App 34In re C.C.W.
2018). There is no dispute that the juvenile court properly found
that, as a result of Father’s abandonment of the Children, there
were grounds for termination. The dispute solely concerns the
court’s best-interest analysis.
¶17 Mother first argues that it “is well settled” that where
grounds for termination are established, it is “almost
automatically” in the child’s best interest to terminate parental
rights. Because the juvenile court found that Father had
abandoned the Children, she asserts that the court should have
automatically concluded that it was in the Children’s best
interest to terminate Father’s parental rights.
¶18 We have indeed previously stated that “where grounds
for termination are established, the conclusion that termination
will be in a child’s best interest follows almost automatically.” In re
G.J.C., 2016 UT App 147, ¶ 25, 379 P.3d 58 (emphasis added)
(quotation simplified), abrogated by In re B.T.B., 2018 UT App 157.
But, as we recently concluded in In re B.T.B., our “almost
automatically” line of cases was not supported by statutory
language or Utah Supreme Court case law, and we disavowed
all of our cases that had relied upon the concept. 2018 UT App
157, ¶ 44 & n.12. 3 We noted that the “almost automatically”
characterization had gone too far, and that the “‘best interest’
inquiry requires courts to examine all of the relevant facts and
circumstances surrounding the child’s situation, not just the
specific statutory grounds for termination.” Id. ¶ 55. We
therefore determined that “the ‘best interest’ inquiry should be
applied in a more thorough and independent manner than some
3. The briefing and argument in this case took place prior to the
issuance of our opinion in In re B.T.B., 2018 UT App 157. After
that opinion issued, the GAL filed a motion (which Mother
joined) for “emergency relief” asking us to stay proceedings in
this case “pending resolution” of petitions for rehearing in In re
B.T.B. We decline that invitation, and hereby deny the motion.
20170360-CA 8 2019 UT App 34In re C.C.W.
of our cases might suggest.” Id. ¶ 2. We therefore reject Mother’s
contention that, after determining there were grounds for
termination, the juvenile court should have automatically
concluded that it was in the Children’s best interests to terminate
Father’s parental rights.
¶19 It does not follow, however, that Mother’s appeal is
unsuccessful. In particular, we are troubled by the juvenile
court’s treatment of Father’s history of domestic violence.
Although it recognized that “Father’s crimes were extremely
violent, and they caused his victims, [Mother] in particular,
unthinkable physical and emotional injuries,” the juvenile court
concluded that “assaulting your spouse or another person[] does
not necessarily mean that you are unable to fulfill your duties as
a parent,” and that “when assessing the issue of unfitness to
parent . . . the focus is on the parent’s interactions with children”
rather than on the parent’s interactions with other adults.4 While
4. In the context of assessing the severity of Father’s violent acts
toward Mother, the juvenile court also mentioned that, after
Father assaulted Mother, Father “continued to reside in the
family home with” Mother and the Children for another few
weeks, and that even after their separation, Father and Mother
“continued in a sexual and/or romantic relationship” for a while,
and noted that “[a]t no time” during this period did Mother
“prohibit [Father] from taking the [C]hildren” or “seek a child
protective order prohibiting” Father from exercising parent-time.
We caution trial courts to avoid unnecessarily drawing negative
inferences from a battered spouse’s decision to maintain a
relationship with the batterer, or from a battered spouse’s
decision to decline to immediately seek help. In many instances,
victims of domestic violence stay in abusive relationships, at
least for a time, because they may not feel like they have any
other option, or because they may feel they are at least partly to
blame for the violence. See Mary Ann Dutton, Understanding
Women’s Responses to Domestic Violence: A Redefinition of Battered
(continued…)
20170360-CA 9 2019 UT App 34In re C.C.W.
it is true that a history of domestic violence does not necessarily
lead to parental termination in every case, we nevertheless find
the juvenile court’s statements problematic, and emphasize
that—even where there is no evidence of violence toward
children—it is inappropriate to completely separate or
compartmentalize a parent’s history of domestic violence toward
other adults from the best-interest inquiry regarding that
parent’s child. 5
(…continued)
Woman Syndrome, 21 Hofstra L. Rev. 1191 (1993); Martha R.
Mahoney, Legal Images of Battered Women: Redefining the Issue of
Separation, 90 Mich. L. Rev. 1, 6 (1991).
5. We recognize that the juvenile court made these comments in
the context of analyzing whether Father was “unfit” to parent
the Children, which is one of the statutory grounds for
termination, Utah Code Ann. § 78A-6-507(1)(c) (LexisNexis
2018), rather than in the context of analyzing whether
termination of Father’s parental rights would be in the
Children’s best interest. The juvenile court was incorrect in
refusing to take Father’s history of domestic violence into
account when considering Father’s fitness to parent the
Children, because our legislature expressly requires courts to
consider a parent’s “history of violent behavior” against
anyone—not just children—in assessing a parent’s fitness. See id.
§ 78A-6-508(2)(f) (mandating that, “[i]n determining whether a
parent . . . [is] unfit . . . the court shall consider . . . [the parent’s]
history of violent behavior”); see also, e.g., In re A.C.M., 2009 UT
30, ¶ 27, 221 P.3d 185 (affirming a juvenile court’s decision to
take into account a parent’s violence toward his “domestic
partner[s],” even though there was no evidence of violence
toward children); In re K.C., 2014 UT App 8, ¶ 4, 318 P.3d 1195(per curiam) (affirming a juvenile court’s decision to take into
account a parent’s commission of “domestic violence in the
(continued…)
20170360-CA 10 2019 UT App 34In re C.C.W.
¶20 Such compartmentalization conflicts with the statutory
view that a history of violent behavior has relevance, especially
when committed against “the other parent of the child.” See Utah
Code Ann. § 78A-6-316(2)(iv); cf. id. § 76-5-109.1 (criminalizing
actions of domestic violence committed “in the presence of a
child,” even if the child is not the direct victim). And both
common sense and expert opinion indicate that a parent’s acts of
domestic violence can have adverse impacts on a child, even if
that child is not the direct object of such violence, and even if the
child does not directly witness the violence. See Winston J. v. State
Dep’t of Health & Social Services, Office of Children’s Services, 134
P.3d 343, 348 (Alaska 2006) (concluding that a father’s acts of
domestic violence against his children’s mother, coupled with
his history of violence against other women, created a
substantial risk of harm even though the children had not yet
been born when the acts occurred); In re V.V., 349 S.W.3d 548,
555 (Tex. Ct. App. 2010) (en banc) (concluding that a parent’s
history of domestic violence, even if not directed at his child,
provided support for the trial court’s termination decision
because this conduct placed his child in jeopardy); Marjory D.
Fields, The Impact of Spouse Abuse on Children and Its Relevance in
Custody and Visitation Decisions in New York State, 3 Cornell J.L.
& Pub. Pol’y 221, 228 (1994) (“Studies show that violence by one
parent against another harms children even if they do not
(…continued)
presence of the children,” even though no mention was made of
violence toward the children themselves). But in addition, for the
reasons we explain herein, a parent’s history of domestic
violence, even against other adults, is a factor that the court
should consider as part of the “best interest” analysis, even if
that history might also be relevant to one or more of the
statutory grounds for termination. Cf., e.g., In re B.T.B., 2018 UT
App 157, ¶ 55 (stating that “[t]he ‘best interest’ inquiry requires
courts to examine all of the relevant facts and circumstances
surrounding the child’s situation”).
20170360-CA 11 2019 UT App 34In re C.C.W.
witness it.”). Indeed, numerous studies clearly show that
violence directed at a parent—even where not directed at the
children—can have a significant impact on the abused parent’s
children, especially when the abused parent is the children’s
primary caretaker. See Michal Gilad, Abraham Gutman
& Stephen P. Chawaga, The Snowball Effect of Crime and Violence:
Measuring the Triple-C Impact, 46 Fordham Urb. L.J. 1, 4, 9–10
(2019); Karen Czapanskiy, Domestic Violence, The Family, and the
Lawyering Process: Lessons from Studies on Gender Bias in the
Courts, 27 Fam. L.Q. 247 (1993); see also Naomi R. Cahn, Civil
Images of Battered Women: The Impact of Domestic Violence on Child
Custody Decisions, 44 Vand. L. Rev. 1041, 1055–56 (1991) (stating
that, “even if they are not physically harmed, children suffer
enormously from simply witnessing the violence between their
parents,” and that “children of abusive fathers are likely to be
physically abused themselves”). These notions are not new;
more than three decades ago, health professionals were making
efforts to tell judges about the potential impact a parent’s
domestic violence could have on children, emphasizing that
children who are exposed to abuse may be taught that violence
is an acceptable way to handle issues with loved ones:
Children learn several lessons in witnessing the
abuse of one of their parents. First, they learn that
such behavior appears to be approved by their
most important role models and that the violence
toward a loved one is acceptable. Children also fail
to grasp the full range of negative consequences for
the violent behavior and observe, instead, the short
term reinforcements, namely compliance by the
victim. Thus, they learn the use of coercive power
and violence as a way to influence loved ones
without being exposed to other more constructive
alternatives.
....
20170360-CA 12 2019 UT App 34In re C.C.W.
Spouse abuse results not only in direct physical
and psychological injuries to the children, but, of
greatest long-term importance, it breeds a culture
of violence in future generations. Up to 80 percent
of men who abuse their wives witnessed or
experienced abuse in their family of origin. Abused
children are at great risk of becoming abusive
parents.
Patricia Ann S. v. James Daniel S., 435 S.E.2d 6, 18 (W. Va. 1993)
(Workman, C.J., dissenting) (quoting L. Crites & D. Coker, What
Therapists See That Judges May Miss, The Judges’ Journal, 9, 11–12,
(Spring 1988)). 6
¶21 When a parent whose parental rights are subject to being
terminated has a history of violence, particularly domestic
6. Relevant literature indicates that men who saw their mothers
abused are more than twice as likely to abuse their spouses as
adults, and that women who saw their mothers abused are twice
as likely to be victimized as adults. See Matthew Robins, State of
Fear: Domestic Violence in South Carolina, 68 S.C. L. Rev. 629, 661
(2017) (citing Charles L. Whitfield et al., Violent Childhood
Experiences and the Risk of Intimate Partner Violence in Adults, 18 J.
Interpersonal Violence 166, 178 (2003)); see also Michal Gilad,
Abraham Gutman & Stephen P. Chawaga, The Snowball Effect of
Crime and Violence: Measuring the Triple-C Impact, 46 Fordham
Urb. L.J. 1, 10 (2019) (“The rattling presence of violence in the
home can also lead to erroneous beliefs: the conceptualization
that aggression is a functional and legitimate part of intimate
relationships and family dynamics, and the belief that men are
intrinsically dominant and privileged.”) (citing Sandra A.
Graham-Bermann & Victoria Brescoll, Gender, Power and Violence:
Assessing the Family Stereotypes of the Children of Batterers, 14 J.
Fam. Psychol. 600, 605 (2000)).
20170360-CA 13 2019 UT App 34In re C.C.W.
violence, trial courts should carefully weigh the potential impact
of that violence on the children as part of considering whether
termination of the parent’s rights would be in the best interest of
the children, even if the parent has not visited any of that
violence directly upon the children. See In re B.T.B., 2018 UT App
157, ¶ 47 (stating that “the ‘best interest’ inquiry is broad, and is
intended as a holistic examination of all of the relevant
circumstances that might affect a child’s situation”); see also In re
K.K., 2017 UT App 58, ¶ 4, 397 P.3d 745 (per curiam) (explaining
that Mother’s “unresolved domestic violence issues” made it
“unsafe for the children to be around her”); In re R.T., 2013 UT
App 108, ¶ 7, 300 P.3d 767 (per curiam) (concluding that it was
in the children’s best interest to terminate their father’s parental
rights given his history of violence and anger issues).
¶22 In this case, Father not only attacked two women, but he
brutally beat Mother, choked her to the point of momentary
unconsciousness, and threatened to kill her at gunpoint. Yet in
its findings, the juvenile court brushed aside Father’s violent
history and the risk that Father’s conduct might pose to the
Children, emphasizing the fact that there was no evidence that
Father had ever been violent toward children. We find such
compartmentalization troubling, especially given the fact that
individuals prone to domestic violence tend to reoffend. 7 See
United States v. Bryant, 136 S. Ct. 1954, 1959 (2016) (“As this
Court has noted, domestic abusers exhibit high rates of
recidivism, and their violence ‘often escalates in severity over
time.’”) (quoting United States v. Castleman, 572 U.S. 157, 160
(2014)); see also Linell A. Letendre, Beating Again and Again and
Again: Why Washington Needs a New Rule of Evidence Admitting
Prior Acts of Domestic Violence, 75 Wash. L. Rev. 973, 977–78
(2000) (stating that a person’s past violent behavior is “the best
predictor of future violence,” because “studies demonstrate that
7. In this case, as noted above, Father did reoffend, and did so
within one year of his release from prison on his first offense.
20170360-CA 14 2019 UT App 34In re C.C.W.
once violence occurs in a relationship, the use of force will
reoccur in 63% of these relationships,” and that “even if a
batterer moves on to another relationship, he will continue to
use physical force as a means of controlling his new partner”
(quotation simplified)).
¶23 Of course, not every parent who has committed an act of
domestic violence deserves to have his or her parental rights
terminated. Each case must be judged on its own merits, and in
appropriate cases a trial court might reasonably find, among
other things, that the domestic violence issues in the case are not
sufficient to counsel in favor of termination; that the parent in
question has taken meaningful steps to change his or her life and
make amends; that under the circumstances presented there is
no significant risk of continued violence; or that, even when all
incidents of past violence are fully considered, the children
would be better off with the parent still playing an active role in
their lives than they would be if the parent’s rights were
terminated. But the trial court must carefully explain its reasons
for so finding, and it is not sufficient to say, as the juvenile court
essentially did here, that acts of domestic violence are not
relevant in a termination case simply because none of the
violence was directly visited upon the Children.
¶24 Again, we recognize that the juvenile court made these
comments in the context of assessing Father’s fitness as a parent
under statutory grounds. While the juvenile court did not repeat
these comments in the “best interest” portion of its analysis, and
while the juvenile court did make general findings that Father’s
“circumstances are different now” because, among other things,
Father has “obtained treatment for his mental health needs” and
“currently receives therapy,” the juvenile court never directly
grappled with Father’s violent history in its best interest
analysis. It may be that the juvenile court espouses the view that,
in this case, the steps Father has taken to address his situation
have ameliorated any risk that his violent past might pose to his
successful reintroduction into the Children’s lives. But the
20170360-CA 15 2019 UT App 34In re C.C.W.
juvenile court did not expressly explain why it believes this is so
and, evaluated against the backdrop of the compartmentalizing
comments it made in the course of its “fitness” analysis, we
cannot construe the juvenile court’s best-interest discussion as
containing adequately articulated reasons for its decision. 8
8. Mother raises two other potential flaws with the juvenile
court’s analysis. First, she asserts that the juvenile court focused
too heavily on Mother’s fitness as a parent, in violation of our
earlier pronouncement that “the best interests prong of the
termination statute does not anticipate an evaluation of a parent
whose fitness has not been challenged by a cross-petition to
terminate parental rights.” See In re A.M., 2009 UT App 118, ¶ 23,
208 P.3d 1058. At issue in that case was an effort by the parent
whose rights were at issue to subpoena the other parent’s
“health records” in an effort to prove her unfitness. Id. ¶¶ 18, 21.
We affirmed the juvenile court’s order quashing that subpoena,
on the grounds that those health records were irrelevant because
the other parent’s fitness was not at issue. Id. ¶ 23. That case is
easily distinguishable from this one, in that here, the juvenile
court’s discussion of Mother’s living situation came in the
context of assessing whether the Children were “stable,” and in
evaluating Mother’s own argument that adding Father back into
their lives would affect their stability. Taking such things into
account as part of the holistic “best interest” inquiry is entirely
proper, and a far cry from, for instance, giving the respondent in
a termination case access to the petitioner’s health records.
Second, Mother asserts that the juvenile court relied too
heavily on the possibility that termination of Father’s parental
rights might result in the Children losing any right to receive
any of Father’s veterans’ benefits. This issue was not well briefed
by the parties from a legal standpoint, and its resolution also
depends upon factual issues not specifically found by the
juvenile court, which phrased its findings on this issue in
hypothetical, conditional terms (e.g., the Children “would
(continued…)
20170360-CA 16 2019 UT App 34In re C.C.W.
CONCLUSION
¶25 Accordingly, we conclude that the juvenile court’s best-
interest determination was materially flawed, because the court
did not appropriately consider what effect, if any, Father’s
history of domestic violence might have on his efforts to re-
establish a relationship with the Children. We therefore vacate
the juvenile court’s order dismissing Mother’s petition, and
remand for proceedings consistent with this opinion. We do not,
however, make any effort to urge the juvenile court to reach one
conclusion or another upon reconsideration. Given the juvenile
court’s superior position and specialized training and experience
in matters involving children, supported factual findings from
the juvenile court on remand, entered after adequately
considering all of the proper factors, are, of course, always
entitled to deference by appellate courts.
(…continued)
potentially” lose veterans’ benefits because Father “could object”
to their receiving them). To the extent this issue remains relevant
on remand, the juvenile court may invite the parties to explore it
in a more meaningful way.
20170360-CA 17 2019 UT App 34