In re A.H...

2022 UT App 114THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF
A.H., J.H., J.H., L.H., N.H., S.H., AND E.H.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
N.J.H. AND S.H.,
Appellants,
v.
STATE OF UTAH,
Appellee.
Opinion
Nos. 20210353-CA and
20210354-CA
Filed October 6, 2022
Fourth District Juvenile Court, Provo Department
The Honorable Suchada P. Bazzelle
No. 1145453
Alexandra Mareschal, Attorney for Appellant N.J.H.
Kirstin H. Norman, Attorney for Appellant S.H.
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
JUDGE RYA N M. HARRIS authored this Opinion, in which
JUDGE DAVID N. MORTENSEN and SENIOR JUDGE KATE APPLEBY
concurred.1
1. Senior Judge Kate Appleby sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(7).
In re A.H.
HARRIS, Judge:
¶1 After a bench trial, the juvenile court terminated S.H.’s
(Mother) and N.J.H.’s (Father) (collectively, Parents) parental
rights regarding the two youngest of their seven children: A.H.
and L.H. (the Subject Children). The court did not terminate
Parents’ rights regarding their other five children; it accepted the
parties’ stipulation that the best interest of those children would
be served by placing them in a guardianship with relatives. But
despite those same relatives being willing to take and care for (by
either adoption or guardianship) the Subject Children as well, the
court determined that the Subject Children’s best interest would
be served by termination of Parents’ rights and adoption by their
foster parents. In separate appeals that we consider together in
this opinion, Parents challenge that decision, asserting that
termination of their rights was neither strictly necessary nor in the
best interest of the Subject Children. We agree and reverse.
BACKGROUND
¶2 Mother and Father are the parents of seven children (the
Children), each born approximately two years apart. The eldest
(E.H.) was born in 2005, and the two youngest (A.H. and L.H.)
were born in February 2015 and December 2016, respectively.
Mother is the biological parent of all seven of the Children. Father
is the biological parent of the six youngest Children and the legal
parent of all of them; he adopted E.H. when E.H. was an infant.
Mother and Father met in New Mexico, which is where the
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parents of E.H.’s biological father (Grandparents) live.2 Parents
moved to Utah, with the Children then born, in 2007.
¶3 Over the years, Grandparents developed a close
relationship not only with E.H.—their biological grandson—but
with the other Children as well. They made trips to Utah on at
least an annual basis during which they spent time with the
Children, and they engaged in regular telephonic contact as well.
After L.H. was born in 2016, he required a lengthy stay in the
newborn intensive care unit, and Grandmother took three weeks
off from her job as a nurse to come to Utah and help.
¶4 In June 2017, the Division of Child and Family Services
(DCFS) filed a petition for protective supervision, asserting that
Father had physically abused N.H., one of the older sons, and that
L.H.—who was then just a few months old—was malnourished
and failing to thrive. DCFS’s plan, at that point, was to leave the
Children in the home and provide supportive services. After
adjudicating N.H. abused as to Father and the other Children
neglected as to Father, the juvenile court granted DCFS’s
requested relief and ordered that Father have only supervised
contact with the Children. For the time being, the Children
remained in the home under Mother’s care.
¶5 In August 2017, however, DCFS filed a petition seeking
custody of the Children, citing not only the issues raised in its
previous petition but also a more recent incident involving
Mother and L.H. In response to a report of reckless driving, police
found Mother slumped over the steering wheel of her parked car
2. In this opinion, for ease of reference, we refer to E.H.’s paternal
grandparents as “Grandparents,” and we refer to them
individually as “Grandmother” and “Grandfather,” even though
any biological relationship exists only with E.H. and not with the
other six Children.
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with L.H. in the backseat, and a search of the vehicle turned up
several prescription medications in a container not intended for
prescriptions, as well as a red straw with “white powder” inside
it. Police arrested Mother on suspicion of, among other things,
impaired driving; she was later able to provide prescriptions for
all the medications found in the car.
¶6 After a hearing, the court granted DCFS’s requested relief
and placed the Children in the temporary custody of DCFS. The
Children were removed from Mother’s care later that same day
and, when caseworkers went to the home to effectuate the court’s
order, they observed Mother “wobbling back and forth” and
having “a hard time keeping her eyes open.” Initially, DCFS
caseworkers—with Mother’s agreement—arranged a safety plan
in which Mother would leave the home and the Children would
stay there, in their familiar environment, cared for by Mother’s
brother. But Mother knowingly failed to follow that plan, and
returned to the home without permission two days later. As a
result of Mother’s actions, DCFS removed the Children from the
home and placed them in a group home for children.
¶7 But that placement was temporary, and DCFS eventually
needed to move the Children to foster care placements. But
because no available foster care placement could accommodate all
seven Children, DCFS found it necessary to split the Children up
into three different placements. The oldest two were placed in one
foster home, the next three in a second, and the Subject Children
in a third. Three months later, the oldest two were placed with a
paternal aunt. For almost a year, the seven Children were
separated into these three groups, and the different groups saw
each other only during Parents’ supervised parent-time; they
were sometimes permitted to call each other, but DCFS did not
facilitate any in-person sibling visitation during this period.
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¶8 At later hearings, the juvenile court adjudicated the
children neglected as to Mother. The court noted L.H.’s “failure to
thrive” and the incident involving the parked car, as well as
Mother’s criminal history—which involved both drug crimes and
retail theft—and her “history of mental health issues that [could]
place the [C]hildren at risk of harm.” Despite these concerns,
however, the goal remained reunification and, over the ensuing
months, Parents complied with the court’s direction well enough
that, by July 2018, the family was able to reunify in the home. For
the next nine months, the family was together—for the most
part3—and doing reasonably well, and DCFS anticipated that it
might be able to close the case in the spring of 2019. But three
events occurred in early 2019 that prompted DCFS to reconsider.
¶9 First, in March 2019, Father injured two of the older
Children, and DCFS made a supported finding of physical abuse
by Father. In the wake of this incident, and in an effort to avoid a
second removal of the Children from the home, Father agreed to
move out and to have only supervised visits with the Children.
When caseworkers visited the home following Father’s departure,
they became concerned about Mother’s ability to care for the
Children on her own; in particular, caseworkers observed several
incidents in which Mother left the younger Children unattended.
¶10 Second, in late April 2019, police were called to the home
at 1:54 a.m. and found L.H., then just two years old, alone in the
family car, which was parked in front of the house. Mother
explained that she had been out shopping, gotten home late, and
then taken a phone call while L.H. was still out in the car asleep.
3. L.H. was removed from the home for a one-month period
during this time, again because of concerns that he was
malnourished and “failing to thrive.”
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¶11 Third, in early May 2019, Mother had an encounter with
police while in her car at a fast-food restaurant. Officers observed
Mother responding quietly and slowly to questions, and they
discovered in the car a plastic bag and an unlabeled prescription
bottle containing pills later identified as controlled substances. In
addition, officers found a razor blade with white residue and a
rolled-up dollar bill in the vehicle, evidence that suggested
Mother had been misusing the drugs. Mother passed a field
sobriety test, and officers later determined that she had valid
prescriptions for the pills.
¶12 Following these incidents, DCFS filed a new petition, again
seeking to remove the Children from the home and place them in
state custody. The juvenile court again adjudicated the Children
abused and neglected as to each Parent, and again placed them
into the custody of DCFS. The Children were extremely emotional
when they learned of the court’s order removing them from the
home for a second time; in fact, officials even had to use physical
force to restrain two of the older sons when the time came to take
them into custody. This time, the seven Children were sent to four
placements: one of the older sons was placed in a short-term
behavioral health facility because of his aggressive behavior
during the removal; two of the older sons were placed together;
and the two next-oldest sons and the Subject Children were
returned to their respective previous foster placements. Just a few
weeks later, six of the Children—all but the oldest—were placed
together with a single foster family in a different county, but this
short reunion lasted only about two months.
¶13 In August 2019, with the school year approaching, Parents
requested that the Children be returned to Utah County, a request
that again required the Children to be split up. This time, the two
oldest were placed together; the next three were placed together
in a new placement; and the Subject Children were—for the first
time—placed with the family (the Foster Family) who now wishes
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to adopt them.4 The Subject Children bonded very quickly with
Foster Family, calling the parents “mom and dad” within just a
few weeks of being placed with them. Still, the primary goal
remained reunification, and the court ordered additional
reunification services. However, DCFS still did not facilitate any
sibling visitation, but “left that mostly up to [the] foster parents.”
Although the foster families initially managed “a few meet-ups
on their own,” these efforts diminished over time, despite the
absence of any indication that the Children—including the
Subject Children—did not want to see each other.
¶14 At a court hearing in July 2019, shortly after the second
removal, Mother’s attorney requested that Grandparents—who
were and remain willing to take all seven of the Children—be
considered as a possible placement. The court was open to this
suggestion but, because Grandparents reside in New Mexico, the
court ordered DCFS to “initiate an ICPC[5] as to” Grandparents.
But DCFS delayed acting upon the court’s order for nearly four
4. These arrangements were a bit fluid during this period—at one
point, the oldest four Children were combined into one
placement, and the fifth-oldest was placed with Foster Family
along with the Subject Children. However, the mother of the
Foster Family testified at trial that, after a while, the fifth child
often got upset at how his younger siblings were becoming so
attached to Foster Family, and so she eventually asked that he be
placed elsewhere.
5. The abbreviation “ICPC” refers to the Interstate Compact on the
Placement of Children, an interstate agreement that has been
adopted by all fifty states. See Utah Code Ann. § 62A-4a-701
(LexisNexis 2018). The ICPC allows child welfare agencies from
different states to more easily cooperate regarding placement of
children across state lines.
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months, until late October 2019. DCFS attributed the delay, in
part, to inadvertence related to a caseworker switch that was
occurring right then, but the new caseworker later testified that
her “understanding” of the situation was that DCFS “made a
decision not to proceed” with the ICPC process “because
reunification services were still being offered.” Owing at least in
part to the four-month delay in getting it started, the ICPC report
was still not completed by the beginning of the eventual
termination trial in October 2020. On the third day of trial, a DCFS
witness explained that New Mexico had just finished its end of
the process and had given its “approval” the day before, and that
DCFS had filled out its final form the night before.
¶15 The ICPC report, when it was finally completed, raised no
concerns with regard to Grandparents, and concluded that their
home would be an appropriate placement for the Children.
Indeed, one of the DCFS caseworkers testified at trial that she had
“no concerns directly about [Grandparents] and their ability to be
a safe home.” But none of the Children were actually placed with
Grandparents until October 2020, due in large part to the delays
associated with completion of the ICPC report.
¶16 For several months following the second removal of the
Children from the home, the primary permanency goal remained
reunification, and DCFS continued to provide reunification
services to the family. But in the fall of 2019, after yet another
substance use incident involving Mother, DCFS became
dissatisfied with Parents’ progress and asked the court to change
the primary permanency goal. At a hearing held at the end of
October 2019, the court agreed, terminated reunification services,
and changed the primary permanency goal to adoption with a
concurrent goal of permanent custody and guardianship. A few
weeks later, the State filed a petition seeking the termination of
Parents’ rights with regard to all seven Children.
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¶17 The court originally scheduled the termination trial to
occur at the end of February 2020, but the State requested a
continuance because it was working on placing the Children with
Grandparents, was waiting for the ICPC report, and wanted “to
ensure [that] the Grandparents kn[ew] what they [were] getting
into.” The court granted the State’s requested continuance and
rescheduled the trial for the end of March 2020. On March 12—
the day before all “non-essential” court hearings in Utah were
postponed by administrative order6 due to the emerging COVID-
19 pandemic—all parties filed a stipulated motion asking that the
trial be postponed yet again because there was “an ICPC request
pending approval” and it was “highly anticipated by all parties
that the results of the ICPC [would] resolve all issues pending
before the Court.” The court granted the stipulated motion and
continued the trial, but did so without date because the
termination trial was deemed “to be a non-essential hearing.”
Eventually, after the COVID-related administrative order was
amended to allow some non-essential hearings to go forward, the
court rescheduled the trial for October 2020, to take place via
videoconference.
¶18 In the meantime, despite the fact that the ICPC report was
not yet completed, the five oldest Children visited Grandparents
in New Mexico for several weeks during the summer of 2020.
DCFS did not allow the Subject Children to participate in that
visit, not based on any concern about Grandparents’ ability to
provide appropriate care for them, but because caseworkers
6. See Administrative Order for Court Operations During
Pandemic, Utah Supreme Court (Mar. 13, 2020),
https://www.utcourts.gov/alerts/docs/20200311%20-%20Pandem
ic%20Administrative%20Order.pdf [https://perma.cc/3EGH-3V3
Z].
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believed that such a lengthy visit away from Foster Family would
be “scary and upsetting” to the Subject Children.
¶19 During this time, the parties and their attorneys were
preparing for trial. From the beginning of the case, Parents had
each been provided with a court-appointed lawyer (collectively,
Appointed Counsel) to represent them. But toward the end of July
2020, Parents asked a private lawyer (Private Counsel) to
represent them at trial.7 Private Counsel agreed, and Parents paid
him a retainer. Parents informed Private Counsel of upcoming
pretrial disclosure deadlines, and even gave him a list of fifteen
witnesses Parents wanted to call at trial; Private Counsel told
them that he would file the appropriate documents and that they
did not need to contact their Appointed Counsel. Eventually,
Parents discovered that no pretrial disclosures had been made
and no motions for extensions of the deadlines had been filed.
¶20 The trial was finally held in October 2020. The first day was
spent solely trying to clear up confusion about who was
representing Parents. Appointed Counsel appeared for trial, but
they indicated that they were unprepared to proceed given the
lack of communication from Parents over the weeks leading up to
trial. Private Counsel appeared as well, even though he had not
filed a notice of appearance, and requested that the trial be
continued. The court—not knowing the full picture of what had
happened behind the scenes with Parents’ attempts to change
counsel—chastised Private Counsel for the “very, very late notice
and request” and denied the continuance, expressing concern that
eleven months had already passed since the trial had originally
been set. The court then recessed for the day to allow the parties
7. The facts recited in this paragraph regarding Parents’
communications with their various attorneys are not in the
record, but are included in the materials submitted on appeal in
support of Parents’ claim of ineffective assistance of counsel.
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to confer and negotiate about possible permanency options short
of termination of Parents’ rights.
¶21 Those negotiations bore fruit, at least in part. With Private
Counsel assisting Parents, the parties were able to reach a
stipulation that it was in the best interest of the oldest five
Children to be placed with Grandparents under an order of
permanent custody and guardianship. But the parties were
unable to reach a similar stipulation with regard to the Subject
Children, and therefore the trial went forward as to them. At that
point, Private Counsel withdrew from representing Parents,
leaving Appointed Counsel to handle the trial even though they
had not—given the lack of communication with Parents—made
many of the usual preparations for a trial.
¶22 In support of its case, the State presented testimony from
four DCFS caseworkers, two therapists, Mother’s former and
current probation officers, and the mother from the Foster Family
(Foster Mother). Foster Mother testified that the Subject Children
had developed a strong bond with Foster Family and “love[d]
spending time with [them].” She also stated that the Subject
Children refer to her three children as “their brother and sisters,”
that “[n]obody is ever left out amongst the kids,” and that L.H.
“believes he is part of [their] family” and “has said, on multiple
occasions, that he’s already adopted.” The two therapists testified
that the Subject Children did indeed have a strong bond with
Foster Family; one of them stated that it was “the most secure
attachment [she had] ever witnessed . . . between a foster parent
and a foster child,” and offered her view that it would be “hugely
devastating” for them if they were removed from Foster Family.
¶23 Several of the caseworkers testified about the strength of
the bond between the Subject Children and their older siblings,
and they painted a picture in which those bonds were originally
very strong but had begun to weaken over time as the Subject
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Children spent less time with their siblings and became more
attached to Foster Family. One of the first caseworkers to work
with the family testified that the bonds had been strong among all
the Children, including the Subject Children. Another testified
about how emotional the older children were upon learning that
they were to be removed from the home a second time and again
separated from most of their siblings. But another caseworker—
who had been assigned to the family in 2019—testified that the
Subject Children’s bond to their older siblings was weakening as
they became more attached to Foster Family. In general, the
caseworkers voiced concerns about separating siblings, offering
their view that ordinarily “children should stay together” and that
placing siblings together “is understood under most
circumstances . . . to be beneficial to the kids.”
¶24 Parents were prohibited from introducing many of their
witnesses because they had failed to make their required pretrial
disclosures. In particular, Parents were prepared to call one of the
Subject Children’s former foster parents as well as some of the
older Children, who would each have apparently testified that the
bonds between the Subject Children and their siblings had been,
and still remained, very strong. But the court refused to allow
Parents to call these witnesses because they had not been timely
disclosed. The court did, however, allow Parents to offer
testimony of their own, and to call Grandparents to testify.
¶25 For their part, Parents testified about how closely bonded
the Children had been before DCFS became involved. Father
testified that the older siblings had expressed a desire to all be
together and noted that, if they were placed with Grandparents,
the Subject Children would not only be with siblings, but also
with cousins, and would have a large network of familial support.
Mother testified that she, too, wanted the Children to be kept
together and stated that she knew she was “not what [the
Children] deserve” “right now,” but offered her view that, at
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some point in the future, after she has “[gotten] [her]self
together,” she “will be what’s best for them.”
¶26 Grandfather testified that he and Grandmother told DCFS,
right from the start, that they were willing to take all seven
children. He explained that they were accustomed to large
families, having raised eight children of their own; he noted that
two of those children lived nearby, meaning that the Children, if
they lived with him, would have aunts, uncles, and cousins in the
vicinity. Grandfather testified that he and Grandmother had
renovated their house to accommodate all seven children and that
they were able, financially and otherwise, to take on the
responsibility. He acknowledged that raising seven children was
not how he had originally envisioned spending his retirement
years, but he offered his view that “no matter what else I could be
doing in the next ten or twenty years,” what mattered most to him
was “that [he] could be doing something to make a difference in
the lives of these kids.” Grandmother testified that she had
bonded with A.H. during her three-week stay with the family
after L.H. was born, and she offered her view that it had been
difficult to get Foster Mother to facilitate telephonic or virtual
visits between the older siblings and the Subject Children during
the older siblings’ summer 2020 visit to New Mexico.
¶27 After trial, the court took the matter under advisement for
six months, issuing a written decision in May 2021. In that ruling,
the court terminated Parents’ rights as to A.H. and L.H. It found
sufficient statutory grounds for termination of Parents’ parental
rights, including Father’s physical abuse of some of the older sons,
Parents’ neglect of L.H. when he was malnourished and failing to
thrive as an infant, and neglect of the Children for failing to
protect them from Mother’s substance use. Similarly, the court
found that Mother had neglected the Children by failing to
properly feed L.H., insufficiently supervising the Subject
Children, and improperly using drugs. Moreover, the court found
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that Mother’s “substance abuse and criminal behavior” rendered
her unfit as a parent.
¶28 The court next found that DCFS had made “reasonable
efforts towards the permanency goal of reunification.” It noted
that DCFS has been involved with the family since April 2017 and,
“during the arc of the case, circumstances changed frequently and
there were many setbacks in the attempts to reunify the children
with the parents.” The court concluded that “reunification efforts
were not successful through no fault of DCFS.”
¶29 Finally, as to best interest, the court determined—in
keeping with the parties’ stipulation—that, with regard to the
oldest five siblings, “a permanent custody and guardianship
arrangement” with Grandparents “would serve their best
interests as well as, or better than, an adoption would.” But the
court saw it differently when it came to the Subject Children,
concluding that their best interest would be best served by the
facilitation of an adoption by Foster Family, and that termination
of Parents’ rights was strictly necessary to advance that interest.
The court reached that decision even though it meant
permanently separating the Children, and even though the court
acknowledged that Grandparents were “certainly appropriate
caregivers.” The court offered several reasons for its decision.
First, it noted that the Subject Children were very young—A.H.
was two-and-a-half years old, and L.H. was eight months old,
when they were first removed from the family home—and that,
as a result, they “had a very short time to be with their older
siblings.” Second, the court concluded that the strength of the
bond between the Subject Children and their siblings was not
particularly strong, opining that the Subject Children “have little
beyond a biological connection” to their siblings. In this vein, the
court downplayed any positive effects that might come from
keeping the Children together, describing the older siblings as “a
large and unruly group” that “cannot be depended upon to
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protect” the Subject Children. Third, the court discussed the
unquestionably strong bond that the Subject Children had formed
with Foster Family. Fourth, the court concluded that disruption of
the Subject Children’s “placement at this time would be very
detrimental” and would “put them at unnecessary risk for future
emotional and mental health issues.” Fifth, the court expressed
concern that, absent termination, Parents would retain some level
of parental rights and might attempt “to regain custody of the
[C]hildren in the future,” an eventuality the court believed would
“pose a risk to” the Subject Children. And finally, the court
emphasized the importance of stability, stating that “the [Subject
Children] and [Foster Family] deserve, and indeed need, the
highest level of legal protection available, which would be
achieved through adoption.” For these reasons, the juvenile court
terminated Parents’ rights with regard to the Subject Children.
ISSUE AND STANDARD OF REVIEW
¶30 Parents now appeal the juvenile court’s order terminating
their parental rights, but their appeal is narrowly focused. Parents
do not challenge the juvenile court’s determination that statutory
grounds exist for terminating their parental rights. However,
Parents do challenge the court’s determination that termination of
their parental rights was strictly necessary and in the best interest
of the Subject Children. We review a lower court’s “best interest”
determination deferentially, and we will overturn it “only if it
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.” In re E.R., 2021 UT 36, ¶¶ 22, 31, 496 P.3d 58 (quotation
simplified). But “such deference is not absolute.” Id. ¶ 32. We do
not afford “a high degree of deference” to such determinations;
rather, we simply apply “the same level of deference given to all
lower court findings of fact and ‘fact-like’ determinations of
mixed questions.” Id. ¶¶ 29–30. In addition, our deference must
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be guided by the relevant evidentiary standard applicable in
termination of parental rights cases: the “clear and convincing”
evidence standard. See In re G.D., 2021 UT 19, ¶ 73, 491 P.3d 867.
“Although we defer to juvenile courts’ [best-interest]
determinations, in reviewing their conclusions we do so with an
exacting focus on the proper evidentiary standard,” and “we will
not only consider whether any relevant facts have been left out
but assess whether the juvenile court’s determination that the
‘clear and convincing’ standard had been met goes against the
clear weight of the evidence.” Id.8
ANALYSIS
¶31 The right of parents to raise their children is one of the most
important rights any person enjoys, and that right is among the
fundamental rights clearly protected by our federal and state
constitutions. See Troxel v. Granville, 530 U.S. 57, 65–66 (2000)
(stating that “the interest of parents in the care, custody, and
control of their children” is “perhaps the oldest of the
fundamental liberty interests” the court recognizes); see also In re
J.P., 648 P.2d 1364, 1372 (Utah 1982) (“A parent has a fundamental
right, protected by the Constitution, to sustain his relationship
with his child.” (quotation simplified)). Our legislature has
expressed similar sentiments, declaring that “[u]nder both the
United States Constitution and the constitution of this state, a
8. Parents also raise other issues, including an assertion that
Private Counsel rendered deficient performance that prejudiced
them at the termination trial. Although we acknowledge the
strength of Parents’ assertion that Private Counsel rendered
ineffective assistance, and discuss in passing the problems they
had with him, we need not reach the merits of that claim or any
of their other claims because we reverse on the merits of their
main claim.
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parent possesses a fundamental liberty interest in the care,
custody, and management of the parent’s child,” see Utah Code
Ann. § 80-4-104(1) (LexisNexis Supp. 2022), and that this interest
“does not cease to exist simply because . . . a parent may fail to be
a model parent,” id. § 80-4-104(4)(a)(i).
¶32 The “termination” of these fundamental “family ties . . .
may only be done for compelling reasons.” See id. § 80-4-104(1).
Under our law, a parent’s rights are subject to termination only if
both parts of a two-part test are satisfied. First, a court must find
that one or more statutory grounds for termination are present;
these include such things as abandonment, abuse, or neglect. See
id. § 80-4-301(1). Second, a court must find that termination of the
parent’s rights is in the best interest of the children. See In re B.T.B.,
2020 UT 60, ¶¶ 19–20, 472 P.3d 827. The party seeking termination
of a parent’s rights bears the burden of proof on both parts of this
test. See In re G.D., 2021 UT 19, ¶ 43, 491 P.3d 867 (stating that
“petitioners in termination proceedings must prove termination
is warranted”). And that party must make this required showing
“by clear and convincing evidence.” Id.; see also Santosky v. Kramer,
455 U.S. 745, 769–70 (1982) (concluding that the U.S. Constitution
requires application of a “clear and convincing evidence”
standard in parental termination proceedings).
¶33 As noted, Parents do not challenge the juvenile court’s
determination that statutory grounds for termination exist in this
case. Their challenge is limited to the second part of the test:
whether termination of their rights is, under the circumstances
presented here, in the best interest of the Subject Children.
¶34 “The best interest of the child has always been a paramount
or ‘polar star’ principle in cases involving termination of parental
rights,” although it is not “the sole criterion.” In re J.P., 648 P.2d at
1368. The assessment of what is in a child’s best interest is, by
definition, “a wide-ranging inquiry that asks a court to weigh the
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entirety of the circumstances” surrounding a child’s situation,
including “the physical, intellectual, social, moral, and
educational training and general welfare and happiness of the
child.” See In re J.M., 2020 UT App 52, ¶¶ 35, 37, 463 P.3d 66(quotation simplified). Because children inhabit dynamic
environments in which their “needs and circumstances” are
“constantly evolving,” “the best-interest inquiry is to be
undertaken in a present-tense fashion,” as of the date of the trial
or hearing held to decide the question. See In re Z.C.W., 2021 UT
App 98, ¶¶ 12–13, 500 P.3d 94 (quotation simplified).
¶35 Our legislature has provided two related pieces of
important guidance on the best-interest question. First, it has
expressed a strong preference for families to remain together,
establishing something akin to a presumption that a child’s best
interest will “usually” be served by remaining with the child’s
parents:
It is in the best interest and welfare of a child to be
raised under the care and supervision of the child’s
natural parents. A child’s need for a normal family
life in a permanent home, and for positive,
nurturing family relationships is usually best met by
the child’s natural parents.
Utah Code Ann. § 80-4-104(8). In that same statutory section, our
legislature also emphasized that, “[w]herever possible, family life
should be strengthened and preserved.” See id. § 80-4-104(12).
And the “family” includes the child’s parents as well as the child’s
siblings; indeed, in the related child custody context, our
legislature has specifically identified “the relative benefit of
keeping siblings together” as a factor that the court “may
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consider” when evaluating “the best interest of the child.” See id.§ 30-3-10(2)(o) (LexisNexis 2019).9
¶36 Second, our legislature has mandated that termination of
parental rights is permissible only when such termination is
“strictly necessary.” See id. § 80-4-301(1). Our supreme court has
interpreted this statutory requirement to mean that “termination
must be strictly necessary to promote the child’s best interest.” See
In re B.T.B., 2020 UT 60, ¶ 60. Indeed, a court’s inquiry into the
strict necessity of termination should take place as part of the best-
interest inquiry that comprises the second part of the termination
test. See id. ¶ 76 (stating that, “as part of [the best-interest inquiry],
a court must specifically address whether termination is strictly
necessary to promote the child’s welfare and best interest”).
¶37 In assessing whether termination is strictly necessary to
promote a child’s best interest, courts “shall consider” whether
“sufficient efforts were dedicated to reunification” of the family,
and whether “the efforts to place the child with kin who have, or
are willing to come forward to care for the child, were given due
weight.” See Utah Code Ann. § 80-4-104(12)(b). Indeed,
9. A court’s consideration of the importance of sibling
relationships is arguably even more important in the
termination/adoption context than it is in the child custody
context, simply because of the permanency of termination and
adoption. When split custody is ordered in a domestic case, the
children will not live together all the time, but their overarching
family relationship remains intact; they will remain siblings and,
depending on visitation schedules, they will likely see each other
several times each month. But when—as in this case—siblings are
separated for purposes of adoption, the familial bonds, including
the sibling bonds, are more permanently affected.
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this part of the inquiry also requires courts to
explore whether other feasible options exist that
could address the specific problems or issues facing
the family, short of imposing the ultimate remedy of
terminating the parent’s rights. In some cases,
alternatives will be few and unsatisfactory, and
termination of the parent’s rights will be the option
that is in the child’s best interest. But in other cases,
courts should consider whether other less-
permanent arrangements might serve the child’s
needs just as well.
In re B.T.B., 2020 UT 60, ¶ 67 (quotation simplified). Courts that
order termination of parental rights without appropriately
exploring “feasible alternatives to termination” have not properly
applied the second part of the two-part termination test. See, e.g.,
In re H.F., 2019 UT App 204, ¶ 17, 455 P.3d 1098 (reversing and
remanding a juvenile court’s termination order because, among
other things, “the court’s determination that termination was
strictly necessary was not supported by an appropriate
exploration of feasible alternatives to termination”).
¶38 In this case, Parents challenge the juvenile court’s best-
interest determination, including its subsidiary conclusion that
termination of their rights was strictly necessary to promote the
best interest of the Subject Children. As discussed herein, we find
merit in Parents’ challenge. We recognize that we are reviewing
the juvenile court’s determinations deferentially, and we do not
lightly reverse a court’s best-interest determination. But the facts
of this case simply do not amount to strict necessity, and therefore
the best-interest requirement is not met. Stated another way, the
evidence presented at trial did not constitute clear and convincing
evidence that termination of Parents’ rights to the Subject
Children would be in the best interest of those children. Under the
specific circumstances of this case, the juvenile court’s
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determination was against the clear weight of the evidence, and
on that basis we reverse.
¶39 In its written decision, the juvenile court set forth several
reasons for its conclusion that termination of Parents’ rights was
strictly necessary to promote the Subject Children’s best interest.10
We discuss those reasons, in turn. Although the topics that the
juvenile court focused on are certainly appropriate topics to
consider when examining best interest, we conclude that the facts
underlying those topics—in this case—do not support a
determination that termination was strictly necessary to promote
the best interest of the Subject Children.
¶40 The court began its best-interest examination by discussing
the ages of the Subject Children and, relatedly, the fact that the
bonds between the Subject Children and their siblings had
deteriorated. The Subject Children are, as noted, the youngest of
the seven Children and were very young—A.H. was two-and-a-
half years old, and L.H. was eight months old—when they were
first removed from the family home. The juvenile court noted that,
as a result, they “did not have the opportunity to live with their
parents for as long as their older siblings” and “had a very short
time to be with their older siblings.” These facts are
10. Parents assert that the juvenile court erred by limiting its best-
interest inquiry to the Subject Children, rather than considering
whether termination of Parents’ rights to the Subject Children was
in the best interest of all the Children. Although we are far from
persuaded by Parents’ assertion, we need not further concern
ourselves with it, because for purposes of our analysis we assume,
without deciding, that the juvenile court properly focused on the
Subject Children when conducting the best-interest inquiry. Even
assuming the propriety of that more limited focus, we
nevertheless find the court’s ultimate best-interest determination
unsupported by clear and convincing evidence.
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unquestionably true, and one of the consequences of these facts is
that the Subject Children had less-developed bonds with Parents
and with their siblings than the other Children did. But this will
almost always be true when children are removed from their
homes as newborns or toddlers, and courts must be careful not to
overemphasize the significance of the deterioration of familial
bonds—particularly sibling bonds—when that deterioration is
the result of court-ordered removal from the home at an early age.
See, e.g., In re N.M., 186 A.3d 998, 1014 n.30 (Pa. Super. Ct. 2018)
(vacating an order terminating parental rights in part because the
lower court’s decisions during the case had been “designed to
affect the bond between” the parents and the child “so that
termination would be the natural outcome of the proceedings”).
¶41 The facts of this case present an interesting case study. The
next-oldest of the Children was born in April 2013, and is less than
two years older than A.H. He was only four years old at the time
of the first removal, and yet the juvenile court determined that it
would not be in his best interest for Parents’ rights to be
terminated. Many of the differences—especially in terms of the
strength of the sibling bonds—between the Subject Children’s
situation and that of their barely-older brother are largely the
result of decisions made by DCFS and the court during the
pendency of these proceedings. In a situation like this, a court
must be careful not to ascribe too much weight to circumstances
that are of the court’s own making.
¶42 We do not doubt the juvenile court’s finding that, by the
time of trial, the bonds between the Subject Children and the other
Children were not as strong as the bonds between the five oldest
Children. We take at face value the court’s statement that the
Subject Children, at the time of trial, had “little beyond a
biological connection” to their older siblings. But even the
biological connection between siblings matters. The connection
between siblings is, for many people, the longest-lasting
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connection they will have in life. Indeed, “the importance of
sibling relationships is well recognized by . . . courts and social
science scholars,” because “a sibling relationship can be an
independent emotionally supporting factor for children in ways
quite distinctive from other relationships, and there are benefits
and experiences that a child reaps from a relationship with his or
her brother(s) or sister(s) which truly cannot be derived from any
other.” In re D.C., 4 A.3d 1004, 1012 (N.J. 2010) (quotation
simplified); see also Aaron Edward Brown, He Ain't Heavy, He's
My Brother: The Need for a Statutory Enabling of Sibling Visitation, 27
B.U. Pub. Int. L.J. 1, 5 (2018) (noting that “[t]oday’s children are
more likely to grow up with a sibling than a father,” and that
“[t]he sibling relationship is generally regarded to be the longest
relationship a person will have because the relationship will
typically last longer than a relationship with a parent or spouse”).
Such bonds are often especially important “to children who
experience chaotic circumstances” like abuse or neglect, because
“in such circumstances, they learn very early to depend on and
cooperate with each other to cope with their common problems.”
In re D.C., 4 A.3d at 1013 (quotation simplified); see also In re
Welfare of Child of G.R., No. A17-0995, 2017 WL 5661606, at *5
(Minn. Ct. App. Nov. 27, 2017) (“The sibling relationship is
especially important for a young child with an unstable family
structure as these siblings can provide secure emotional
attachment, nurturing, and solace.”). Indeed, trial testimony from
the DCFS caseworkers mirrored these sentiments, with the
caseworkers stating that “children should stay together” and that
placing siblings together “is understood under most
circumstances . . . to be beneficial to the kids.”
¶43 And there is nothing in the record before us that indicates
significant trouble among the sibling ranks. To the contrary, by all
accounts the Children are quite loyal to one another, as best
exemplified by their collective reaction—outrage—to being
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removed from the family home, and from each other, a second
time in 2019. The juvenile court referred to them as a “large and
unruly group,” but that description would seem to fit almost any
group of seven siblings. The court also appeared concerned about
“significant sibling rivalr[ies]” among some of the older Children
but, again, we would be surprised to find a seven-member sibling
group that didn’t have significant sibling rivalries. The court also
offered its view that “[t]he older boys cannot be depended upon
to protect” the Subject Children, but we think that’s an unfair
expectation, as the court itself noted. And there are no allegations
(for example, of intra-sibling abuse) about or among this sibling
group that would counsel against keeping the group together.
¶44 We are also troubled, under the unusual circumstances of
this case, by the fact that the deterioration of the Subject
Children’s bonds with their siblings was due, in not-insignificant
part, to the way this case was litigated, even apart from the
removal and placement decisions. Notably, DCFS did not take
any systematic steps to facilitate visitation between the three (and
sometimes four) sibling groups that were placed in different
homes, but instead “left that mostly up to [the] foster parents.”11
In particular, DCFS did not allow the Subject Children to visit
Grandparents with the rest of the Children during the summer of
2020. And Grandmother offered her perception that it had been
difficult to get Foster Mother to facilitate telephonic or virtual
11. DCFS’s actions in this regard were arguably contrary to
statute. See Utah Code Ann. § 62A-4a-205(12)(a) (LexisNexis
Supp. 2022) (stating that DCFS must “incorporate reasonable
efforts to . . . provide sibling visitation when siblings are separated
due to foster care or adoptive placement”); see also id. § 80-3-
307(12)(a) (requiring DCFS to “incorporate into the child and
family plan reasonable efforts to provide sibling visitation if . . .
siblings are separated due to foster care or adoptive placement”).
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visits between the older siblings and the Subject Children during
the older siblings’ summer 2020 visit. Under these circumstances,
it is no wonder that the Subject Children’s bond with their siblings
began to wane. It is intuitive that relationships can become more
distant without meaningful contact. To at least some degree, the
deterioration of the sibling bonds is attributable to DCFS’s (and
the various foster parents’) actions in failing to facilitate regular
sibling visitation.
¶45 In addition, DCFS’s delay in starting the ICPC process
appears to have also played a role in the way this case turned out.
In July 2019, the juvenile court ordered that “an ICPC” be
conducted to explore the possibility of placing the Children with
Grandparents in New Mexico. But DCFS—perhaps intentionally,
according to one of the caseworkers—delayed acting upon the
court’s ICPC order for nearly four months, until late October 2019.
Delays in obtaining ICPC reports are not necessarily uncommon,
and can be just an unfortunate part of the process of
communicating between agencies of different states. But such
delays are troubling when they are attributable to a state agency’s
refusal to even get the process started, despite a court order
requiring it to do so. Although DCFS could not have known it at
the time, its failure to timely initiate the ICPC process may have
mattered more in this case than in others, because of the eventual
emergence, in early 2020, of the COVID-19 pandemic.
¶46 Recall that, in the fall of 2019 and early 2020, after DCFS
filed its termination petition, all parties were on the same page:
they were working toward placing the Children—all of them—
with Grandparents in New Mexico. Indeed, it was “highly
anticipated by all parties that the results of the ICPC [would]
resolve all issues pending before the Court.” But before a
placement with Grandparents could happen, the ICPC report
needed to be completed, and the parties twice stipulated to
continuances of the termination trial specifically so that the ICPC
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report could be finished, and so that they could “ensure [that] the
Grandparents kn[ew] what they [were] getting into.” These
continuances resulted in the trial being rescheduled for late March
2020, which in turn resulted in the trial being postponed again
because of the emergence of the pandemic. The ICPC report was
not completed until October 2020, and by then, the Subject
Children had been with Foster Family for more than a year and
had begun to develop meaningful bonds there. Under these
circumstances, it is hard not to wonder what might have
happened if DCFS had begun the ICPC process in July 2019, as it
had been ordered to do.12
12. The juvenile court addressed this issue in its written ruling,
and downplayed the significance of the delayed ICPC report. It
expressed its view that, even if DCFS had timely requested the
ICPC report, the case would not have come out differently. First,
it assumed that the ICPC process would have taken a year to
complete even if the report had been requested in July 2019. We
wonder about that, and in particular wonder whether any of the
delays in completing the ICPC report were due to the emergence
of the pandemic. But more to the point, the court indicated that it
would have made the same termination decision in July 2020 as it
made in October 2020. However, the court does not account for
the fact that all parties to the case, including DCFS, were on the
same page at least as late as March 12, 2020, and anticipated
placing all the Children with Grandparents as soon as the ICPC
report came back. Had the ICPC report come back significantly
earlier, while the parties were still in agreement, things almost
certainly would have been different. We doubt that the juvenile
court would have rejected the parties’ stipulation on that point,
just as it did not reject the parties’ October 2020 stipulation
regarding the five oldest Children.
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¶47 Next, the court—appropriately—discussed at some length
the Subject Children’s bond with Foster Family. There is no doubt
that Foster Family is an appropriate adoptive placement, and that
Foster Parents are doing a wonderful job caring for the Subject
Children. The court made unchallenged findings in this regard,
noting that Foster Parents are the ones “who care for them on a
daily basis, feed them, hug them, and put them to bed,” and that,
from the Subject Children’s point of view, Foster Parents “are
their parents.” We do not minimize the significance of these
findings. They are important, and are a necessary condition to any
adoption-related termination of parental rights. After all, if an
adoptive placement is not working out, an adoption into that
placement is very unlikely to be finalized.
¶48 But while the existence of an acceptable adoptive
placement is a necessary condition to any adoption-related
termination, it is not a sufficient one. At some level, we certainly
understand the impulse to want to leave children in—and
perhaps make permanent—a putative adoptive placement in
which the children are thriving. And we recognize—as the
juvenile court observed here—that taking a child out of a loving
adoptive placement in order to reunite the child with family can
be detrimental to the child, at least in the short term. But in order
to terminate parental rights to facilitate an adoption, a court must
have before it more than just a loving and functional adoptive
placement from which it would be emotionally difficult to remove
the child. Termination of parental rights must be “strictly
necessary to promote the . . . welfare and best interest” of the
children in question. See In re B.T.B., 2020 UT 60, ¶ 76, 472 P.3d
827. And in order to reach that conclusion, a court must do more
than make a finding about the acceptability of the adoptive
placement—it must examine potential options, short of
termination, that might also further the best interest of the
children in question. Id. ¶¶ 66–67. In particular, and especially in
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light of our legislature’s guidance that families should be kept
together whenever possible, see Utah Code Ann. § 80-4-104(8),
(12), courts must investigate kinship placement possibilities,
including options for permanent guardianship. And if one of
those placements turns out to be an option that can promote the
child’s best interest “just as well,” then it is by definition not
“strictly necessary” to terminate the parent’s rights. See In re
B.T.B., 2020 UT 60, ¶¶ 66–67.
¶49 Moreover, in this context courts must keep in mind the
“clear and convincing” evidentiary standard. See In re G.D., 2021
UT 19, ¶ 44, 491 P.3d 867. If there exists a completely appropriate
kinship placement through which the family can remain intact,
the “strictly necessary” showing becomes significantly more
difficult to make. We stop well short of holding that, where an
acceptable kinship placement exists, it can never be strictly
necessary to terminate a parent’s rights. But in such cases, the
proponent of termination must show, by clear and convincing
evidence, that the adoptive placement is materially better for the
children than the kinship placement is. After all, if the two
placements can each “equally protect[] and benefit[]” the child’s
best interest, then by definition there does not exist clear and
convincing evidence in favor of terminating a parent’s rights. See
In re B.T.B., 2020 UT 60, ¶ 66. And in this case, the necessary
showing was not made.
¶50 Perhaps most significantly, there is not a hint of any
evidence in the record before us that placement with
Grandparents is flawed. The ICPC report (finally) came back
clean; that report raised no concerns with regard to Grandparents,
and concluded that their home would be an appropriate
placement for the Children. The five older siblings had a lengthy
visit with Grandparents in the summer of 2020, and all went well.
And just before trial, the parties stipulated that the five oldest
Children should be placed with Grandparents on a long-term
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basis, subject to a permanent custody and guardianship
arrangement. The court approved this stipulation, agreeing with
the parties “that a permanent custody and guardianship
arrangement” would serve the best interest of the five oldest
Children. It even found that Grandparents are “certainly
appropriate caregivers.” And on appeal, all parties agree that
Grandparents are acceptable and loving caregivers; no party has
even attempted to take issue with Grandparents’ ability to
provide a loving and stable home for the Children. There is no
dispute that Grandparents have the capacity and ability, from a
financial standpoint as well as otherwise, to care for all seven
Children, and stand ready and willing to do so, regardless of
whether that takes the form of an adoption or a permanent
guardianship arrangement.
¶51 The juvenile court opted to go in a different direction,
primarily for three related reasons. First, it emphasized how
“detrimental” and “destabilizing” it would be for the Subject
Children to be removed from Foster Family. Second, the court
emphasized that the Subject Children need stability and
permanency, and determined that adoption—as opposed to
guardianship—could best provide that stability. Third, the court
expressed concern that, absent an adoption, Parents might
attempt—at some later point in time—to get back into the lives of
the Subject Children, and perhaps even “regain custody,” an
eventuality the court believed would “pose a risk to” the Subject
Children. In our view, these stated reasons do not constitute clear
and convincing reasons to terminate Parents’ rights.
¶52 With regard to permanency and stability, our supreme
court has recently clarified that the mere fact that adoptions—as a
category—provide more permanency and stability than
guardianships do is not enough to satisfy the statutory “strictly
necessary” standard. See In re J.A.L., 2022 UT 12, ¶ 24, 506 P.3d
606. In that case, the court held that the lower court
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fell into legal error in concluding that [a
guardianship option] would not provide the “same
degree of permanency as an adoption.” That is not
the question under our law. A permanent
guardianship by definition does not offer the same
degree of permanency as an adoption. And there is
always some risk that the permanent guardianship
could come to an end, or be affected by visitation by
the parent. If these categorical concerns were
enough, termination and adoption would be strictly
necessary across the board. But such categorical
analysis is not in line with the statutory standard.
Id. The court then noted that, as part of the “strictly necessary”
analysis, a court “must assess whether a permanent guardianship
can equally protect and benefit the children in the case before it.”
Id. ¶ 25 (quotation simplified). The court made clear that the
statutory requirements were “not met by the categorical concern
that a permanent guardianship is not as stable or permanent as an
adoption,” and instead “require[] analysis of the particularized
circumstances of the case before the court.” Id.
¶53 As applied here, this recent guidance renders
insufficient—and more or less beside the point—the juvenile
court’s apparent belief that an adoption was better than a
guardianship simply because it was more permanent and more
stable. All adoptions are at least somewhat more permanent than
guardianships, and therefore that conclusion, standing alone, is
not enough to constitute clear and convincing evidence
supporting termination. It is certainly appropriate for courts in
termination cases to discuss the potential need for permanency
and stability. But in doing so, and when selecting an adoptive
option over a guardianship option, a court in a termination case
must articulate case-specific reasons why the added layer of
permanency that adoptions offer is important and why adoption
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would better serve the best interest of the children in question
than the guardianship option would.
¶54 The court’s concern about the possibility of Parents re-
entering the Children’s lives is, on this record, not an adequate
case-specific reason. As an initial matter, it—like the lack of
permanency—is a feature of the entire category of guardianships.
It will always be true that, in a guardianship, a parent retains what
the juvenile court here referred to as “residual rights,” while in an
adoption the parent’s rights are terminated forever. This kind of
categorical concern is not enough to constitute clear and
convincing evidence in support of termination.
¶55 Moreover, we question whether—in many cases, including
this one—a parent’s desire to re-engage in their child’s life should
be viewed as negatively as the juvenile court appeared to view it.
Here, we return to the statutory guidance offered by our
legislature: that “family life should be strengthened and
preserved” “[w]herever possible,” and that it is usually “in the
best interest and welfare of a child to be raised under the care and
supervision of the child’s natural parents.” See Utah Code Ann.
§ 80-4-104(8), (12). We note our own observation that, “[i]n many
cases, children will benefit from having more people—rather than
fewer—in their lives who love them and care about them.” See In
re B.T.B., 2018 UT App 157, ¶ 55, 436 P.3d 206, aff’d, 2020 UT 60,
472 P.3d 827. And we acknowledge Parents’ point that a parent
whose child has been placed in a permanent guardianship
arrangement in a child welfare proceeding has no independent
right to petition to change or dissolve the guardianship. See Utah
Code Ann. § 78A-6-357(3)(d) (LexisNexis Supp. 2022). Only the
guardian has that right. See id. And there is no evidence, in this
record, that Grandparents will be particularly susceptible to
inappropriate pressure from Parents to seek a change in the terms
of any guardianship arrangement. In addition, there is no
evidence that, if the Subject Children were placed into a
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guardianship with Grandparents, it would be harmful to them for
Parents to retain the possibility of maintaining some form of
contact with them (as they have with regard to the other
Children), as supervised by court order and by Grandparents
acting as guardians.13 In other words, the juvenile court did not
emphasize any case-specific issues that make us especially
concerned about the possibility of Parents attempting to re-enter
the Children’s lives at some point in the future.
¶56 We are thus left with the court’s concern—shared by the
Subject Children’s therapists—about the disruption in the Subject
Children’s lives that would be caused by removing them from
Foster Family and placing them with Grandparents, alongside
their siblings. This is of course a legitimate concern, and one that
courts should take into account in situations like this. If and when
the Subject Children are ever placed into a guardianship with
Grandparents, and taken from Foster Family, that will no doubt
be traumatic for them, at least in the short term. We acknowledge
the validity of such concerns, and do not intend to minimize them.
But in this case, focusing too much on this more-present
13. Indeed, concerns about Parents potentially getting back into
the lives of the Subject Children appear especially overblown
under the facts of this case, given the fact that the juvenile court
approved the stipulation for a permanent guardianship
arrangement for the other five Children. The court does not
convincingly explain why it is concerned for the Subject Children
and not the others, stating only that the potential for the Parents
to “regain custody . . . might not be devastating for the older
children, but it will certainly be devastating to” the Subject
Children. Presumably, this is a reference to the fact that the
Subject Children are younger and have less of a pre-existing
relationship with Parents and the other Children, an aspect of this
case that we have already discussed.
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possibility of emotional trauma risks minimizing the longer-term
emotional trauma that permanent severance of the sibling bonds
will likely someday trigger. In this specific and unique situation,
the juvenile court’s discussion of potential emotional trauma
associated with removal from Foster Family does not constitute
clear and convincing evidence supporting termination.
¶57 For all of these reasons, we conclude that the juvenile
court’s best-interest determination was against the clear weight of
the evidence presented at trial. The State failed to prove, by clear
and convincing evidence, that termination of Parents’ rights to
Subject Children was strictly necessary, especially given the
presence of another available and acceptable option—permanent
guardianship with Grandparents, alongside their five siblings—
that would not require permanent severance of familial bonds
and that would serve the Subject Children’s best interest at least
as well as adoption. See In re G.D., 2021 UT 19, ¶ 75 (“[W]hen two
placement options would equally benefit a child, the strictly-
necessary requirement operates as a preference for a placement
option that does not necessitate termination over an option that
does.”). Under the unique circumstances of this case, termination
of Parents’ rights is not strictly necessary to promote the Subject
Children’s best interest.
CONCLUSION
¶58 Accordingly, we reverse the juvenile court’s order of
termination, and remand the case for further proceedings
consistent with this opinion. We offer a reminder that best-interest
determinations are to be conducted in present-tense fashion, as of
the date of the trial or hearing convened to consider the matter.
See In re Z.C.W., 2021 UT App 98, ¶ 14, 500 P.3d 94. Our holding
today is that, based on the evidence presented at trial in October
2020, termination of Parents’ rights was not strictly necessary to
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20210354-CA 33 2022 UT App 114In re A.H.
promote the Subject Children’s best interest. On remand, the
juvenile court should re-assess best interest. If nothing has
materially changed since October 2020, then we expect the court
to enter orders designed to work (perhaps quite gradually, in the
court’s discretion) toward integration of the Subject Children into
a placement with Grandparents, alongside their siblings. But if
there is evidence that matters have materially changed since
October 2020, the court may need to consider that evidence in
some fashion, see id. ¶ 15, and re-assess best interest based on the
situation at the time of the hearing.
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