In re L.L.B.

2023 UT App 66THE UTAH COURT OF APPEALS
IN THE INTEREST OF L.L.B.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.
C.B. AND H.B.,
Appellees,
v.
J.B.,
Appellant.
Opinion
No. 20210942-CA
Filed June 15, 2023
Eighth District Court, Vernal Department
The Honorable Clark A. McClellan
No. 182800015
Emily Adams, Sara Pfrommer, Melissa Jo Townsend,
and Freyja Johnson, Attorneys for Appellant
Michael D. Harrington and Cameron M. Beech,
Attorneys for Appellees
A. Erin Bradley Rawlings, Guardian ad Litem
JUDGE AMY J. OLIVER authored this Opinion, in which
JUDGES RYAN M. HARRIS and RYAN D. TENNEY concurred.
OLIVER, Judge:
¶1 C.B. (Mother) and H.B. (Stepfather) filed a petition seeking
termination of J.B.’s (Father) parental rights to L.L.B. (Child) and
adoption by Stepfather. After a one-day bench trial, the district
court found four statutory grounds for termination. The court also
concluded it was in Child’s best interest to terminate Father’s
parental rights and that doing so was strictly necessary so Child
could be adopted by Stepfather. Father appeals the district court’s
In re L.L.B.
conclusion that termination of his parental rights was in Child’s
best interest, arguing it was not supported by clear and
convincing evidence. We agree with Father that the evidence was
insufficient and, therefore, reverse the district court’s ruling
terminating Father’s parental rights.
BACKGROUND
¶2 Child was born in September 2009. Less than a week after
her birth, Father relapsed on controlled substances and left Child
and Mother. Shortly thereafter, Child and Mother moved from the
Salt Lake City area to Vernal, Utah. In the months after Mother
and Child moved to Vernal, Father saw Child twice—in
December 2009 and in April 2010.
¶3 In April 2010, Mother and Father entered into a stipulated
agreement of paternity. The decree awarded primary physical
custody and sole legal custody to Mother with Father awarded
parent-time. It also permitted Mother to request that Father
submit to random urinalysis drug testing up to eighteen times a
year.
¶4 For several years Father consistently exercised his rights to
parent-time. Because Mother lived in Vernal with Stepfather,
whom she married in 2013, and Father lived in Salt Lake City, the
parties met in Fruitland, Utah to exchange Child. In July 2015,
however, Mother and Father got into an argument during an
exchange and Child immediately returned to Vernal with Mother
and Stepfather. Mother testified that the same month as the
confrontation in Fruitland, Child and Father were involved in a
four-wheeler accident. For the next several weeks, Mother refused
to permit Child to spend parent-time with Father because she was
concerned Father had been drinking at the time of the accident.
Parent-time resumed after Father sought an order to show cause
20210942-CA 2 2023 UT App 66In re L.L.B.
in the paternity matter.1 Beginning in April 2016, the parent-time
was supervised by Father’s mother because Mother was
concerned that Father was using drugs and alcohol around Child.
¶5 In August 2016, Mother and Father discussed the
possibility of Father voluntarily relinquishing his parental rights.
Mother testified Father was “on the fence” about the idea, and
Father admitted he considered it for approximately two months.
However, the parties were unable to reach a voluntary agreement.
In 2018, Mother and Stepfather filed a Petition for
Adoption/Termination of Parental Rights in district court. The
petition listed the following grounds supporting the termination
of Father’s parental rights: (1) Father abandoned Child, (2) Father
neglected Child, (3) Father was an unfit parent, and (4) Father
made only token efforts to be a fit parent. Father filed a
handwritten response opposing the petition and later filed a
counseled answer.
¶6 The district court held a one-day bench trial on November
5, 2021. Mother, Father’s ex-girlfriend (Ex-Girlfriend), Father’s
mother, Father’s brother, and Father testified. A guardian ad litem
(the GAL) appointed by the district court represented Child.
¶7 Mother’s testimony centered on Father’s lengthy absences
from Child’s life, his history of failing to provide financial support
for Child, and his past substance abuse. She testified that in
February 2017, she asked Father to take a drug test, but he refused.
In the months after that refusal, Father attempted to contact Child
only twice—once in May 2017 and once more in December 2017.
Nearly a year passed until Mother heard from Father again. As to
Father’s history of supporting Child, evidence was presented that
he made court-ordered child-support payments from 2010
1. Mother testified she permitted Child to spend time with Father
after he sought court intervention because she was afraid she
“would get put in jail for not allowing the visitations.”
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through 2016, but the payments were not for the full amounts
ordered. From 2017 forward, Father’s child-support payments
totaled seventy-two dollars, and as of September 1, 2021, he was
$51,011.25 in arrears. Mother testified that Father had never
followed through with his many promises to pay child support,
refrain from using drugs and alcohol, and re-establish a
relationship with Child. She also testified he had never been
involved in Child’s education. Mother admitted, however, that
since the termination petition was filed, she had not responded to
Father’s requests to see Child and had not told Child about the
requests.
¶8 Ex-Girlfriend testified that she and Father dated from 2009
until 2016. She described his alcohol consumption during that
period as progressing from weekends to daily. Ex-Girlfriend also
testified that Father told her either in 2015 or 2016 that he was
using crack cocaine and she found illegal substances in their home
and car in 2016. She also confirmed Father was drinking the day
he and Child were involved in the four-wheeler accident in July
2015. Ex-Girlfriend testified she now communicates with Father
only to discuss matters concerning their daughter, Child’s
half-sister (Half-Sister). According to Ex-Girlfriend, Father spends
parent-time with Half-Sister and has “a strong relationship” with
her. She also testified that Child and Half-Sister have a good
relationship that is facilitated and encouraged by her and Mother.
¶9 Father’s mother testified about Father’s relationship with
Half-Sister, describing it as a “great relationship” and calling him
“a wonderful father.” She testified that she tries to stay in contact
with Child, but recently has had difficulty getting responses from
Mother. According to Father’s mother, Father’s family last saw
Child at a family reunion in the summer of 2020. She stated that
Father had substance abuse issues “off and on” from 2009 through
2019 but she was not aware of any substance abuse since 2019.
20210942-CA 4 2023 UT App 66In re L.L.B.
¶10 Father’s brother testified that “since [Father] put his life
back together,” Father has been an “incredible father” and an
“incredible uncle.” He also testified about the family reunion,
stating Child attended the reunion and he saw her interact with
Father. He stated they “spent a lot of time together and had a lot
of fun.”
¶11 Father testified he saw Child “a lot” during the first five
years of her life and had a good relationship with her. Thereafter,
he saw Child off-and-on until August 2016, after which time he
did not see her again until 2020 at the family reunion. He admitted
their interactions at the reunion were “a little awkward at first”
but testified they “ended up having a blast.” He testified he
admitted to Child during the reunion that he had not been the best
parent and apologized. According to Father, Child responded
well to his apology and gave him a hug. Father testified he had
not seen Child since the reunion, although he had written letters
to Mother, sent a gift, and emailed Child.
¶12 Father admitted he had relapsed on controlled substances
three or four times between 2009 and 2019, but testified he has
been clean and sober since he went to jail in January 2019. Father
testified he participated in drug court after a term of incarceration,
calling it “awesome” and “one of the best things” he ever did. As
part of drug court, he participated in outpatient treatment,
community service, and drug testing. He testified he now works
with at-risk children as a boxing coach and was now paying child
support.
¶13 The GAL stated Child does not have a relationship with
Father because he “wasted that relationship and allowed it to
shrivel by his absence and his lack of effort to nourish it.” The
GAL described Stepfather as “an excellent father” to Child and
stated the two have “a great bond” and “a very close
relationship.”
20210942-CA 5 2023 UT App 66In re L.L.B.
¶14 The district court entered detailed Findings of Fact and
Conclusions of Law on December 3, 2021. The court concluded
four statutory grounds for termination existed and the bulk of its
ruling addressed those grounds. The court found Father
abandoned Child by failing to maintain contact with her,
neglected Child by not paying child support, and made only
token efforts to support Child or communicate with her. Although
the court found that Father was “a fit and proper parent” at the
time of the hearing, it nevertheless concluded Father was unfit or
incompetent for purposes of the statutory grounds for
termination because he was unfit and incompetent for much of
Child’s life.
¶15 The district court’s best-interest analysis was considerably
shorter than its analysis of the statutory grounds for termination.
The court identified and examined three factors: (1) whether
another person was available to step into the parental role, (2)
whether there was evidence Child had been harmed by her
relationship with Father, and (3) whether Father’s extended
family was a positive influence in Child’s life. Based on that
analysis, the court ruled as follows: “The Child desires and
deserves to have [a] healthy, stable family relationship with the
person that has been and acts as her father figure. The Child’s
interest will best be served if the adoption is allowed to move
forward. . . . Because the adoption cannot occur without the
termination of Father’s parental rights, the Court finds by clear
and convincing evidence that it is ‘strictly necessary’ that Father’s
rights be terminated.”
ISSUE AND STANDARD OF REVIEW
¶16 Father challenges the district court’s conclusion that
termination of his parental rights was in Child’s best interest.
“Whether a parent’s rights should be terminated presents a mixed
question of law and fact.” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d
435. A lower court’s best-interest ruling is reviewed deferentially
20210942-CA 6 2023 UT App 66In re L.L.B.
but “we will not only consider whether any relevant facts have
been left out but assess whether the . . . court’s determination that
the clear and convincing standard had been met goes against the
clear weight of the evidence.” In re G.D., 2021 UT 19, ¶ 73, 491 P.3d
867 (cleaned up).
ANALYSIS
¶17 A court must make two findings before terminating a
parent-child relationship:
First, a trial court must find that one or more of the
statutory grounds for termination are present. . . .
Second, a trial court must find that termination of
the parent’s rights is in the best interests of the child.
. . . The trial court must make both of these findings
not merely by a preponderance of the evidence, but
by clear and convincing evidence and the burden of
proof rests with the petitioner.
In re B.T.B. (BTB I), 2018 UT App 157, ¶ 13, 436 P.3d 206, aff’d, 2020
UT 60, 472 P.3d 827 (cleaned up). “A court may . . . terminate
parental rights only when it concludes that a different option is in
the child’s best interest and that termination is strictly necessary
to facilitate that option.” In re B.T.B. (BTB II), 2020 UT 60, ¶ 66, 472
P.3d 827.
¶18 Mother and Stepfather argue that a district court is not
required to undertake the strictly necessary part of the analysis
when a petition is filed under the Adoption Act rather than the
Termination of Parental Rights Act. Compare Utah Code
§ 78B-6-112(5)(e) (“The district court may terminate an
individual’s parental rights in a child if . . . the individual’s
parental rights are terminated on grounds described in Title 80,
Chapter 4, Termination and Restoration of Parental Rights, and
termination is in the best interests of the child.”), with Utah Code
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§ 80-4-301(1) (“[I]f the juvenile court finds termination of parental
rights, from the child’s point of view, is strictly necessary, the
juvenile court may terminate all parental rights with respect to the
parent . . . .”) (formerly codified at § 78A-06-507(1)). But we need
not address Mother and Stepfather’s argument, because even
without considering the strictly necessary part of the best-interest
analysis dictated by the Termination of Parental Rights Act, we
conclude, below, that there is not clear and convincing evidence
supporting the district court’s conclusion that termination of
Father’s parental rights was in Child’s best interest.
¶19 Father first argues the court erred in finding he was an
unfit or incompetent parent as a ground for termination because,
in his view, the statute requires a finding based on current ability
rather than past conduct, and the court found him to be a fit
parent at the time of the trial. But Father concedes that three other
statutory grounds for termination exist. Because the finding of
just one statutory ground for termination is sufficient, it is
unnecessary to address Father’s argument as to the fitness
ground. See id. § 80-4-301(1); In re S.M., 2017 UT App 108, ¶ 4, 400
P.3d 1201 (per curiam) (“[T]he finding of a single ground will
support termination of parental rights.”).
¶20 Father next argues that Mother and Stepfather—the parties
seeking termination of his parental rights—failed to present clear
and convincing evidence that termination of his parental rights
was in Child’s best interest. See BTB II, 2020 UT 60, ¶ 52. He does
not challenge any of the district court’s findings as clearly
erroneous, but asserts that those findings and the evidence
underpinning them do not support the court’s ruling. In Father’s
view, the only support for the district court’s ruling was Mother’s
testimony that Stepfather and Child love and care for each other
and the report of the GAL stating that Child (1) was not
20210942-CA 8 2023 UT App 66In re L.L.B.
comfortable around Father, (2) had a close relationship with
Stepfather, and (3) wanted to be adopted by Stepfather.
¶21 The best-interest inquiry “is intended as a holistic
examination of all of the relevant circumstances that might affect
a child’s situation.” Id. ¶ 29 (cleaned up). The lower court must
consider the “physical, intellectual, social, moral, and educational
training and general welfare and happiness of the child.” BTB I,
2018 UT App 157, ¶ 47 (cleaned up). The analysis is undertaken
from the child’s point of view. BTB II, 2020 UT 60, ¶ 64. In making
the best-interest determination in this matter, the district court
analyzed whether there was (1) another person available to step
into the parental role, (2) evidence Child had been harmed by the
relationship with Father, and (3) a positive role that Father’s
extended family played in Child’s life. After considering these
three factors,2 the district court concluded that termination of
Father’s parental rights and adoption by Stepfather was in Child’s
best interest because she “desires and deserves to have a healthy,
stable family relationship with the person that has been and acts
as her father figure.” But the record does not contain clear and
convincing evidence supporting this conclusion that termination
of Father’s parental rights was in Child’s best interest.
2. It is unclear why the district court focused exclusively on these
three particular factors. Under the required holistic approach,
there is no exhaustive list of relevant factors and no one factor
deemed relevant by a court is determinative on the question of a
child’s best interest. See In re J.P., 2021 UT App 134, ¶ 14, 502 P.3d
1247 (“While courts have identified factors relevant to the
best-interest determination, the list is non-exhaustive.”); In re
G.J.C., 2016 UT App 147, ¶ 24, 379 P.3d 58 (setting out a
non-exhaustive list of factors a court may consider), abrogated on
other grounds by In re B.T.B., 2018 UT App 157, 436 P.3d 206, aff’d,
2020 UT 60, 472 P.3d 827.
20210942-CA 9 2023 UT App 66In re L.L.B.
¶22 As to whether another person was available to step into the
parent role, the district court detailed evidence showing Child
loves Stepfather and Stepfather has been a positive presence in
Child’s life for many years. It was undisputed that Child has lived
with Mother and Stepfather since 2013. The GAL told the district
court that Child “is consistent in her desire to be adopted” by
Stepfather, has a close relationship with him, and does not view
Father as a father figure. The court found Child wants to be
adopted by Stepfather and the two have an excellent relationship.
But there was no evidence that this relationship will not continue
if Father’s rights are not terminated and the adoption does not
occur.
¶23 Mother and Stepfather suggest that “failing to terminate
Father’s parental rights so that Stepfather can adopt inherently
leaves the Child’s relationship with Stepfather, and possibly the
Child’s siblings and extended family, vulnerable to termination at
any time by . . . Mother’s death.” But such a concern is present in
many termination cases, and it does not necessarily lead to the
conclusion that termination of a parent’s rights is in the child’s
best interest. As our supreme court has explained, “categorical
concerns” about the lack of permanence of an option other than
adoption are not enough, otherwise “termination and adoption
would be strictly necessary across the board.” In re J.A.L., 2022 UT
12, ¶ 24, 506 P.3d 606.
¶24 When considering whether Child had been harmed by the
relationship with Father, the court found that Child does not have
a relationship with Father and noted Child has expressed some
concern for her safety when she is with him. There was no finding,
however, that Father’s presence in her life has affirmatively
harmed Child. The GAL told the court that Child does not have a
comfortable relationship with Father and “there’s a certain level
of fear.” But the GAL did not explain or expound on the root of
this fear. Further, there was no finding detailing how Child’s life
was negatively affected or disrupted by Father’s attempts to
20210942-CA 10 2023 UT App 66In re L.L.B.
exercise his parental rights. There is evidence Father has emailed
Child a handful of times since the termination petition was filed,
but there was no testimony or other evidence that these emails
had any negative effect on Child’s general welfare or happiness.3
Father also sent communications to Mother asking for an
opportunity to meet with Child, but Mother testified she did not
respond and did not put Father in contact with Child because
Child would not be receptive. Mother’s testimony, however, did
not discuss the effects Father’s past attempts at reconciliation had
on Child or provide an explanation of why she believed Child
would not want to see Father. In short, there is no evidence
showing Father’s presence in Child’s life has a negative effect on
her happiness and well-being.
¶25 Regarding Child’s relationship with Father’s extended
family, the court found that Child has had a relationship with
Father’s mother for all her life and the relationship is important to
Child. There was also evidence that Child has a strong bond with
Half-Sister. Several witnesses testified about Child’s attendance at
Father’s family reunion in the summer of 2020. Mother testified
that Child called her and was “begging to stay with her cousins.”
Father’s brother testified there was some initial awkwardness
between Child and Father at the reunion “but they spent a lot of
time together and had a lot of fun.” The district court described
the weekend as a “huge success” and “enjoyable and successful.”
Based on this evidence, the district court found that Child
currently has positive and beneficial relationships with Father’s
extended family, including Half-Sister and Father’s mother.
¶26 The district court found that Child’s relationships with
Father’s extended family would be adversely affected to some
extent if Father’s parental rights were terminated and Child was
adopted by Stepfather, and then it purported to compare those
3. Child responded to only one of Father’s emails. On September
2, 2020, she sent an email simply stating, “Love you.”
20210942-CA 11 2023 UT App 66In re L.L.B.
effects to the benefits Child would glean from a relationship with
Stepfather and his family. But there was no evidence presented
identifying those benefits or explaining how Child’s ability to
maintain relationships with Stepfather and his family would be
negatively affected if she was not adopted.
¶27 Despite the district court’s statement that termination was
in Child’s best interest because she deserves to have a healthy and
stable family relationship, the court made no finding that Child’s
current living situation was not healthy and stable. Nor did the
court make any finding that her living situation will change in any
way if she is not adopted. See BTB I, 2018 UT App 157, ¶ 56.
(“[T]he absence of any proposed change in the child’s custody or
living situation is a factor that may weigh against termination in
some cases . . . .”).
¶28 In sum, the evidence on which the district court relied does
not clearly and convincingly demonstrate that termination of
Father’s parental rights was in Child’s best interest.
¶29 Other evidence before the district court further
undermines, rather than supports, the district court’s ruling that
termination of Father’s parental rights was in Child’s best interest.
Most obvious and significant is the court’s finding that “Father is
presently fit and capable as a parent.” This finding was based on
evidence that Father was clean and sober at the time of the
termination trial and had been for more than two years. See In re
B.R., 2007 UT 82, ¶ 13, 171 P.3d 435 (“In termination cases, the . . .
court must weigh a parent’s past conduct with her present
abilities.”). Father testified he has made many attempts to
communicate with Child since his release from incarceration in
2019 and many of those communications were introduced at trial.
¶30 As we have explained, “in making its best-interest
determination, . . . especially in cases (like this one) initiated by
private petition, it is important for courts to carefully assess a
parent’s efforts to improve and, if the court remains unpersuaded
20210942-CA 12 2023 UT App 66In re L.L.B.
that the parent’s situation has sufficiently changed for the better,
to specifically set forth reasons why it remains unpersuaded.” In
re J.J.W., 2022 UT App 116, ¶ 30, 520 P.3d 38 (cleaned up). But the
district court wasn’t unpersuaded that Father had improved his
situation for the better. To the contrary, it was persuaded that
Father had successfully addressed his problems with controlled
substances and found that “Father is presently fit and capable as
a parent.”
¶31 The Utah legislature “has made clear that, as a matter of
state policy, the default position is that 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.” BTB II, 2020 UT 60, ¶ 65 (cleaned up).
The district court’s order contains no analysis of why it was in the
best interest of Child to terminate the parental rights of a fit and
capable Father in order to be adopted by Stepfather.
¶32 The record also indicates Father currently considers
Child’s needs when he makes decisions on her behalf. For
example, the district court’s order contains details surrounding
Child’s desire to participate in a religious ceremony with Mother,
Stepfather, and their other children. The court found that Father
was at first reluctant to consent to Child’s participation but
relented when he learned Child strongly desired to participate.
¶33 Nearly all the evidence presented at trial was offered in
support of the statutory grounds for termination—not the
best-interest inquiry. Although the district court was free to
consider the evidence supporting the statutory grounds for
termination when conducting the best-interest analysis, almost
none of that evidence focused on Child’s “physical, intellectual,
social, moral, and educational training and general welfare and
happiness” as required under the holistic approach. BTB I, 2018
UT App 157, ¶ 47 (cleaned up). And, as explained above, the
evidence that did address Child’s best interest largely countered,
20210942-CA 13 2023 UT App 66In re L.L.B.
rather than supported, the conclusion that termination of Father’s
parental rights was in her best interest.
¶34 Thus, we are convinced the district court’s conclusion that
termination of Father’s parental rights was in Child’s best interest
goes against the clear weight of the evidence.
CONCLUSION
¶35 Because the district court’s ruling that termination of
Father’s parental rights was in Child’s best interest goes against
the clear weight of the evidence, we reverse and remand with
instruction to vacate the order terminating Father’s parental
rights.
20210942-CA 14 2023 UT App 66