In re A.S.G.-R.

2023 UT App 126THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF A.S.G.-R.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.
G.R.,
Appellant,
v.
STATE OF UTAH AND E.G.,
Appellees.
Opinion
No. 20220645-CA
Filed October 19, 2023
Fourth District Juvenile Court, Provo Department
The Honorable D. Scott Davis
No. 1196726
Alexandra Mareschal and Julie J. Nelson,
Attorneys for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee State of Utah
Neil D. Skousen, Attorney for Appellee E.G.
Martha Pierce, Guardian ad Litem
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN D. TENNEY
concurred.
HARRIS, Judge:
¶1 G.R. (Mother) became convinced that E.G. (Father) was
sexually abusing their daughter, A.S.G.-R. (Child). Over a nearly
two-year period, Mother made or sparked some thirty reports of
sexual abuse to Utah’s Division of Child and Family Services
(DCFS). After investigation, however, DCFS was unable to
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discover any credible evidence supporting Mother’s allegations,
and therefore did not substantiate any of them. And given the
number and repeated nature of the reports, DCFS became
concerned that Child was being harmed by the allegations and
ensuing investigations, some of which had included invasive
physical examinations of Child.
¶2 Eventually, the State filed a petition for protective
supervision and obtained an order removing Child from Mother’s
custody and placing her with Father. After affording Mother
fifteen months of reunification services, including a psychological
evaluation and therapy, the juvenile court determined that the
services had not resulted in sufficient change to the situation and
that Child would be placed at substantial risk if she were returned
to Mother, and therefore terminated reunification services. And
after a four-day permanency hearing, the court entered a
permanent custody and guardianship order in favor of Father.
¶3 Mother now appeals, arguing that the court erred in its
decisions to not extend reunification services and to award
permanent custody and guardianship to Father. We discern no
reversible error in those decisions, and therefore affirm.
BACKGROUND 1
¶4 Child was born in January 2017. Mother and Father
separated shortly before Child’s birth, and about two years later
they finalized their divorce. In the decree of divorce, Mother and
Father were awarded joint legal custody of Child, but Mother was
1. “On appeal from a bench trial, we view and recite the evidence
in the light most favorable to the trial court’s findings.” In re B.H.,
2020 UT 64, n.2, 474 P.3d 981 (quotation simplified).
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awarded primary physical custody with Father having statutory
parent-time.
¶5 Child welfare officials first became involved with this
family in November 2018, when DCFS made a supported finding
of domestic violence with Father as the perpetrator and Child as
the victim. At some point during this same time frame, Mother
obtained a protective order against Father, based on allegations
that he committed domestic violence against her also.
¶6 Beginning in May 2019, Mother began to make accusations
that Father was sexually abusing Child. Over the course of the
next two years, Mother made at least eight direct reports to DCFS
of alleged sexual abuse. In addition, Mother reported her
allegations to various medical and mental health professionals,
some of whom also made reports to DCFS based on Mother’s
representations. In total, between May 2019 and February 2021,
some thirty separate reports were made to DCFS that Father was
sexually abusing Child. DCFS investigated these reports and
could not substantiate any of them. In connection with some of
these reports, Mother took Child to the hospital. During two of
these visits, Child—approximately three years old at the time—
was subjected to invasive physical examinations, including one
“code-R” rape examination. 2 The examinations yielded no
evidence of abuse, and in January 2020 DCFS representatives
spoke with Mother about the potential harm that could result to
Child from repeated unfounded allegations and needless forensic
medical examinations. In addition, in April 2020 the “medical
2. A “‘code-R’ or rape kit procedure” involves “a full body
examination, swabs, photographs and collection of clothing or
other items,” and is typically performed by a “sexual assault
nurse examiner (SANE).” See Medical Resources, Sexual Assault
Awareness & Response Support, The University of Utah,
https://sexualassault.utah.edu/get-help/medical-resources/
[https://perma.cc/FL4W-D29E].
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director of Utah’s [Center for] Safe and Healthy Families”
program advised Mother that subjecting Child to “any further
sexual assault examinations could result in an allegation of abuse
for [Mother] due to the harm that unnecessary examinations can
cause a child.”
¶7 During this time frame, and in an effort to expand Mother’s
understanding of the relevant issues, DCFS opened a “voluntary
services case” to provide Mother the opportunity to take
advantage of certain services, and Mother agreed to work with
DCFS to try to improve the situation.
¶8 During the pendency of the voluntary services case,
however, Mother hired a private investigator to investigate the
possibility of sexual abuse by Father, and she did not tell DCFS
that she had done so. This investigator interviewed Child, using
techniques the juvenile court later found to “violate[] nearly every
guideline for child forensic interviewing,” including “ask[ing]
leading questions, [making] promises to [Child] that could not be
kept, and offer[ing Child] ice cream if she would tell the
interviewer what ‘daddy’s secret’ is.”
¶9 Despite DCFS’s efforts to assist Mother, the voluntary
services case did not have its desired effect. Mother proved unable
or unwilling to follow the plan DCFS outlined, and she stopped
communicating with the DCFS caseworker. 3 Eventually, DCFS
closed the voluntary services case.
¶10 Sometime after that case was closed, Mother—in a
continuing effort to present evidence that Father was sexually
abusing Child—took a video recording of Child in an incident the
3. Mother’s native language is not English. Mother believes that,
at times, the language barrier has impaired her ability to
communicate effectively with DCFS, despite certified interpreters
being used when necessary.
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juvenile court described as follows: Mother “videotaped [Child],
naked on a bed, having her point to where [Father] touches her.
On the video, [Mother] touches [Child’s] genitals and has her
spread her legs and moves the camera angle close-up to [Child’s]
genitals.” Mother provided a copy of this recording to DCFS, but
caseworkers declined to view it “based on concerns that it may
potentially contain child pornography.” Mother then provided
the video recording to law enforcement.
¶11 In January 2021, Mother again brought Child to a hospital,
alleging that Child “disclosed that [Father] had put his mouth on
[Child’s] vagina just hours prior.” Another invasive physical
examination was performed on Child, yet “no male DNA was
found on [Child’s] genitals.” DCFS was informed about this
incident, presumably from hospital personnel, and investigated
it; the investigation included interviewing Child at the Children’s
Justice Center. After completing its investigation, DCFS found
“no corroborating evidence” and concluded that Child’s
“disclosure was coached” and “not credible.”
¶12 The present case was initiated in March 2021 when Mother
sought a protective order barring Father from having contact with
Child, and the State responded by not only intervening in the
protective order case but also by filing this action: a petition for
protective supervision services in which the State asked the court
to “discontinue” the protective order, conclude that Child was
“abused, dependent, and/or neglected,” award DCFS protective
supervision of Child, and allow DCFS to place Child in Father’s
custody during the pendency of the case.
¶13 At a shelter hearing held about a week later, the juvenile
court ordered Child removed from Mother’s custody and placed
in the temporary custody of DCFS, which then placed Child, on a
preliminary basis, with Father. Child has remained in Father’s
care ever since.
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¶14 Later, at a subsequent hearing, the court found, based on
stipulation, that Child was dependent as to Father. With regard to
Father, the court indicated that the primary permanency goal was
“Reunification/REMAIN HOME,” and that the concurrent goal
was “Remain Home with non-custodial parent.”
¶15 The court held an adjudication hearing as to Mother; at that
hearing, Father and the guardian ad litem (the GAL) asserted that
Mother’s conduct—making repeated false claims of sexual abuse,
thereby subjecting Child to interviews, investigations, and
physical examinations—constituted abuse, but the State argued
only for a finding of neglect. After the hearing, the court found
“no specific evidence” of harm to Child that could support a
finding of abuse, but instead determined that Child “is neglected”
as to Mother because Child “lacks proper care by reason of the
fault or habits of [Mother].” For Mother, the court set a primary
permanency goal of “RETURN HOME” and a concurrent
permanency goal of “Permanent Custody and Guardianship with
a Relative.” The court explained that it was setting “different
permanency goals for each parent,” and that for Father, “the
primary goal will be” for Child to “remain[] home with him,”
with “the concurrent goal of reunification if she is removed from
his care.” For Mother, the primary goal was “reunification, with
the concurrent goal of guardianship with [a] relative.”
¶16 In connection with setting these permanency goals, the
court adopted a Child and Family Plan (the Plan). Under the
terms of the Plan, Mother was required to, among other things,
“complete a psychological evaluation and follow through with all
recommendations”; “participate in individual therapy”;
participate in a “parenting class”; and “maintain stable and
appropriate housing” for herself and Child. The Plan also
required Mother to be “open and honest” in connection with the
psychological evaluation, as well as with therapists and other
mental health professionals. The Plan provided that its objectives
would “be achieved when [Child] is living at [Mother’s] home”
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and when Mother “is providing a healthy, stable, and age-
appropriate environment . . . that supports a strong co-parenting
relationship with” Father. No party lodged any objection to the
terms of the Plan or to the permanency goals the court set.4
¶17 Thereafter, Mother completed a parenting class as well
as—after some delay that may or may not have been attributable
to her—the required psychological evaluation. The psychologist
who conducted the evaluation (Evaluator) diagnosed Mother
with “unspecified personality disorder” characterized by
“symptoms indicative of borderline, histrionic, and narcissistic
personality disorders as well as paranoid-like features.” In
particular, Evaluator noted that Mother has “a belief that she can
only be understood by a few people,” a “sense of entitlement,” a
“lack of empathy,” and a “pervasive distrust and suspiciousness
of others” that leads her to sometimes “suspect[], without
sufficient basis, that others are harming and deceiving her.”
Evaluator offered his view that, “unless [Mother] overcomes her
psychopathological features,” she “cannot act in [Child’s] best
interest.” He noted that the “obvious recommendation” for
Mother would be for her to “pursue an effective treatment
program,” but he was doubtful that such a program would
succeed in Mother’s case, because Mother “is convinced that she
is not the problem” and because, “given her personality disorder
features, . . . it would be hard for [Mother] to develop an effective
psychotherapeutic alliance with her psychotherapist.”
4. The Plan applied to Father as well, and required him to, among
other things, complete a psychological evaluation and participate
in parenting classes. But because Child had already been placed
with Father by the time the Plan was put in place, no party to this
case describes Father’s obligations under the Plan as
“reunification services.” Indeed, Mother acknowledged, at oral
argument before this court, that Father was not ordered to
complete any “reunification services.”
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¶18 Thereafter, DCFS sent Mother a list of recommended
therapists, and Mother attended therapy sessions with at least
three different mental health professionals. DCFS expressed
concern that Mother “was seeking out multiple providers,” some
of whom reported that Mother was attempting to “get a second
opinion on the psychological evaluation,” and DCFS was worried
that Mother was “continu[ing] to report” to these therapists “that
[Child] was being sexually abused.” Because of this, DCFS
harbored a “concern that there is no clear progress in therapy, due
to minimal communication from providers, multiple providers
involved and regular changes in therapy.” Mother maintains,
however, that she “engaged in all recommended therapy,” an
assertion no party apparently contests, although the record is far
from clear about what the specific recommendations were and
exactly how Mother complied with them.
¶19 After the psychological evaluation was completed, the
parties appeared for a review hearing before the court. At that
hearing, the results of the evaluation were discussed, and the
court commented that, “if the case were closed today and things
returned to how they were before the case, [Child] would be at
risk of harm by” Mother. The court ordered that Child remain in
DCFS custody and placed with Father, with whom the court
stated it had “no safety concerns.”
¶20 As the twelve-month permanency hearing approached,
Mother moved for an extension of reunification services for “at
least 90 days.” Mother argued that she had complied with the
Plan, in that she had completed the parenting class and the
psychological evaluation and had engaged in therapy. In this
motion, Mother also argued that the juvenile court could not enter
an order of permanent custody and guardianship with Father,
because the district court had already entered a custody order, in
connection with the parties’ divorce case, and in Mother’s view
the district court should be the court to enter and modify custody
orders between the parents. Father opposed Mother’s motion for
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extended services, but the State did not register opposition. The
court scheduled an evidentiary hearing to consider the matter. But
due to problems with witness subpoenas, the evidentiary hearing
needed to be postponed, which resulted in Mother’s motion for
an extension of services being de facto granted: services were then
extended for another ninety days, and the postponed evidentiary
hearing was turned into a permanency hearing.
¶21 After these delays, the permanency hearing was held, over
four nonconsecutive trial days, in April and June 2022. Child’s
DCFS caseworker testified that she believed that Mother had been
“coaching [Child] into telling people certain things.” And Child’s
psychologist testified that she “did not observe significant
behaviors or concerns, [or] emotions concerning expressions that
would signal to [her] that [Child] has experienced sexual abuse.”
¶22 Evaluator testified at length during the trial, and discussed
the specifics of his evaluation of Mother. He discussed his
diagnosis that Mother had an “unspecified personality disorder.”
He testified that the evaluation took longer than anticipated
because Mother “did not involve herself in the evaluation in a
forthright manner,” “withheld relevant information that was
requested of her,” and “intentionally distorted information.” In
his view, Mother did not think that she was the problem or that
she had done anything wrong. Evaluator reiterated his view that
unless Mother “overcomes her psychopathological features, [she]
cannot act in [Child’s] best interest.”
¶23 During her own testimony, Mother continued to cling to
her viewpoint that Father had been sexually abusing Child. She
testified that “she does not agree with a doctor’s opinion that
there was no evidence of sexual abuse.” When asked whether she
“still believe[d]” that Father had sexually abused Child, she
answered that she did not know, but that some “part of [her]” still
believed that abuse took place, and that she still had “a suspicion”
in that regard. She did not recognize any impropriety in her
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multiple reports of sexual abuse to DCFS and other authorities,
testifying that she did not “think [she] was doing anything
incorrectly” regarding the parenting of Child. And she did not
agree that her behavior constituted neglect of Child.
¶24 In this same vein, Mother also called her ongoing therapist
to testify at the trial. The therapist testified that he had spent some
thirty hours of therapy with Mother and that she had been
cooperative. The therapist opined, to the extent he was able to as
a fact witness, that Evaluator’s diagnosis of an “unspecified
personality disorder” was incorrect, that Mother had not
neglected Child by reporting sexual abuse to the authorities, and
that Father had indeed sexually abused Child.
¶25 At the conclusion of the trial, the juvenile court took the
matter under advisement. A few weeks later, the court issued a
written decision containing several different rulings. First, the
court declined Mother’s invitation to further extend reunification
services, and it terminated those services. Important to the court’s
decision in this regard were its findings that—although Mother
had taken certain steps, including completing parenting classes,
engaging in therapy, and completing the psychological
evaluation—Mother had not fully complied with the terms of the
Plan, because even after all of these services, Mother “accepted
virtually no responsibility for [Child] being in DCFS custody for
more than one year,” “demonstrated virtually no insight
regarding the harm she has caused” to Child, and offered “varied
and conflicted” testimony “regarding whether she still believed”
that Father had sexually abused Child, “despite there being no
credible evidence that he has.” The court also determined that
reunification between Mother and Child was not “probable or
likely within the next 90 days” and that the extension of services
was not in Child’s best interest.
¶26 Second, the court awarded “permanent custody and
guardianship” of Child to Father. Important to the court’s
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decision in this regard were its findings that “return of [Child] to
[Mother’s] care would create a substantial risk of detriment to
[Child’s] physical or emotional well-being,” that there is “no
credible evidence” that Father has ever sexually abused Child,
and that Child “seems to be thriving and well-adjusted [and] well
cared for” in Father’s care.
¶27 Finally, after denying Mother’s request for additional
reunification services and granting permanent custody and
guardianship in favor of Father, the court terminated its
jurisdiction in the case.
ISSUES AND STANDARDS OF REVIEW
¶28 Mother now appeals, and she raises two issues for our
consideration. First, she challenges the juvenile court’s decision to
terminate reunification services. The juvenile court is “in the best
position to evaluate the credibility of witnesses, the parent’s level
of participation in reunification services, and whether services
were appropriately tailored to remedy the problems that led to
the child’s removal.” In re D.R., 2022 UT App 124, ¶ 9, 521 P.3d
545 (quotation simplified), cert. denied, 525 P.3d 1264 (Utah 2023).
Accordingly, “absent a demonstration that the determination was
clearly in error, we will not disturb the determination” to
terminate reunification services. See id. (quotation simplified).
¶29 Second, Mother challenges the juvenile court’s decision to
award permanent custody and guardianship to Father, her fellow
parent. As part of this challenge, she takes issue with the court
setting slightly different permanency goals for each parent, and
with the court accomplishing two separate objectives—namely,
choosing among those goals and awarding permanent custody to
Father—all in connection with the same hearing. In the main,
Mother’s challenges in this regard involve questions of statutory
interpretation, which “are questions of law that we review for
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correctness.” In re S.Y.T., 2011 UT App 407, ¶ 9, 267 P.3d 930(quotation simplified). But to the extent that Mother here
challenges the court’s underlying factual findings, we adopt a
more deferential standard of review. See In re L.M., 2013 UT App
191, ¶ 6, 308 P.3d 553 (“We review the juvenile court’s factual
findings for clear error . . . .” (quotation simplified)), cert. denied,
320 P.3d 676 (Utah 2014). 5
ANALYSIS
I
¶30 Mother first challenges the juvenile court’s decision to
terminate reunification services. For the reasons discussed, we
discern no clear error in the court’s decision.
¶31 When a juvenile court removes a child from a parent’s
custody, it may afford the parent the opportunity to take
advantage of certain services—e.g., mental health counseling or
parenting classes—designed to address the problems that led to
removal and aimed at facilitating reunification between parent
and child. See Utah Code § 80-3-406. However, due to the need for
5. The GAL argues that Mother invited several of the errors she
now assails, and Father asserts that several of Mother’s issues are
not properly preserved for appellate review. We reject the GAL’s
arguments that Mother invited any error. And where “the merits
of a claim can easily be resolved in favor of the party asserting that
the claim was not preserved, we readily may opt to do so without
addressing preservation.” State v. Kitches, 2021 UT App 24, ¶ 28,
484 P.3d 415 (quotation simplified), cert. denied, 496 P.3d 718 (Utah
2021). We therefore proceed to address, and reject, Mother’s
arguments on their merits. And because we reject Mother’s
arguments, we need not address Father’s invitation that we affirm
on an alternative basis.
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swift permanence in child welfare cases, the duration of
reunification services may not ordinarily “exceed 12 months”
from the date of removal. See id. § 80-3-406(13)(a); see also id. § 80-
3-409(6). A juvenile court may, however, extend reunification
services by an additional “90 days”—for a total of fifteen
months—if the court finds, by a preponderance of the evidence, “that
(i) there has been substantial compliance with the child and family
plan; (ii) reunification is probable within that 90-day period; and
(iii) the extension is in the best interest of the minor.” Id. § 80-3-
409(7)(a). And in exceptional cases, the court may extend services
for a second ninety-day period—for a total of eighteen months—
but only if the court can make those same three findings by clear
and convincing evidence. Id. § 80-3-409(7)(c).
¶32 In this case, Child was removed from Mother’s custody at
a shelter hearing in March 2021. Thus, reunification services were
to presumptively end in March 2022, unless the court made
findings sufficient to support an extension. In early April 2022, the
court commenced an evidentiary hearing for the purpose of
determining whether reunification services should be terminated
or extended but, due to problems with witness subpoenas, the
evidentiary hearing needed to be postponed, which resulted in a
de facto extension of reunification services for another three
months, into June 2022. Finally, at the conclusion of the four-day
hearing that same month, the court ordered that reunification
services be terminated. In its order, the court—presumably out of
an abundance of caution given the timing of the hearing—stated
that it was “not able to find by a preponderance of the evidence,
and certainly not by clear and convincing evidence, that [Mother]
is in substantial compliance with [the Plan], that reunification . . .
is probable or likely within the next 90 days, or that extension of
services for [Mother] is in [Child’s] best interest.”
¶33 Mother challenges this decision, asserting that it goes
against the clear weight of the evidence because, she asserts, she
at least substantially complied with the Plan. We acknowledge
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that Mother did take certain actions that the Plan required, such
as completing the psychological evaluation and participating in
parenting classes and individual therapy, and we therefore agree
with Mother’s assertion that she complied with many—if not
necessarily all 6—of the Plan’s individual requirements.
¶34 But even taking Mother’s assertion—that she completed all
of the Plan’s individual subsidiary tasks—at face value, that does
not necessarily compel the conclusion that Mother substantially
complied with the Plan, because in this case Mother’s efforts did
not bear fruit. That is, at the end of fifteen months of reunification
services, Mother had not rectified the problem that led to the
removal of Child from her custody. The Plan explicitly stated that
its goals would be “achieved when [Child] is living at [Mother’s]
home [and] where Mother is providing a healthy, stable, and age-
appropriate environment . . . that supports a strong co-parenting
relationship with [Father].” Child was removed from Mother’s
custody because Child lacked “proper care by reason of the fault
or habits of [Mother]” due to Mother’s continued unsupported
reports to authorities that Father was sexually abusing Child.
After fifteen months of services, the court—based at least in part
on Mother’s own testimony at the evidentiary hearing—
determined that the original problem still existed, and that Child
could not therefore safely be returned to Mother’s custody. It is
far from clear error for a juvenile court to determine that a parent
who has completed many of a child and family plan’s individual
requirements, but who has still not meaningfully addressed the
6. For instance, the Plan required Mother to be honest with
Evaluator, but Evaluator testified that Mother “did not involve
herself in the evaluation in a forthright manner,” “withheld
relevant information that was requested of her,” and
“intentionally distorted information.” However, the juvenile
court made no specific finding regarding Mother’s honesty in her
dealings with Evaluator, so we do not further discuss this point.
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underlying problem the plan was designed to solve, has not
substantially complied with the plan.
¶35 Moreover, even if we were to assume, for the purposes of
the discussion, that Mother’s actions constituted substantial
compliance with the Plan, Mother must also grapple with the
juvenile court’s findings that reunification was not probable
within the next ninety days, and that another extension of
reunification services was not in Child’s best interest. See Utah
Code § 80-3-409(7)(a)(ii), (iii); see also In re H.C., 2022 UT App 146,
¶ 54, 523 P.3d 736 (“Although [the mother] subsequently
complied with the child and family plan, the court nonetheless
determined that [the child] could not safely be returned to her care
because it found that the return posed a substantial risk of
detriment to [the child’s] physical or emotional well-being.”), cert.
denied, 527 P.3d 1106 (Utah 2023). While Mother spends many
pages in her brief contesting the court’s “substantial compliance”
finding, she does not directly engage with the court’s findings
that, given her lack of progress on solving the underlying
problem, she had not shown—by either evidentiary standard—
that reunification was probable in the next ninety days or that
reunification was in Child’s best interest. And based on our
review of the record, we discern no clear error in these findings.
¶36 Accordingly, we discern no error, let alone reversible error,
in the juvenile court’s decision to terminate reunification services.
II
¶37 Next, Mother challenges the juvenile court’s decision to
award permanent custody and guardianship to Father. Her
challenge in this regard is multi-faceted. First, she challenges the
substance of the court’s decision, and asserts that the court—by
considering its options limited to those set forth in section 80-3-
409(4)(b) of the Utah Code—erred in its interpretation of the
governing statute. And in connection with this argument, Mother
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asks us to overrule one of our recent opinions. Second, Mother
challenges the procedure the court used in reaching its decision.
For the reasons discussed, we reject Mother’s arguments.
A
¶38 Under our law, in any case in which reunification services
are ordered, “the juvenile court shall, at the permanency hearing,
determine . . . whether the minor may safely be returned to the
custody of the minor’s parent.” See Utah Code § 80-3-409(2)(a).
And “[i]f the juvenile court finds, by a preponderance of the
evidence, that return of the minor to the minor’s parent would
create a substantial risk of detriment to the minor’s physical or
emotional well-being, the minor may not be returned to the
custody of the minor’s parent.” Id. § 80-3-409(2)(b).
¶39 In this case, as already discussed, the juvenile court
ordered reunification services for Mother, and therefore needed
to confront, at the permanency hearing, the question of whether
Child faced “substantial risk of detriment to her physical and
emotional well-being if returned to [Mother’s] care.” In its
findings and conclusions entered following that hearing, the court
specifically found, by “both a preponderance of the evidence” and
by “clear and convincing evidence, that return of [Child] to
[Mother’s] care would create a substantial risk of detriment to
[Child’s] physical or emotional well-being.” Mother does not
directly challenge that finding on appeal. 7
7. As noted already, Mother does challenge the court’s
termination of reunification services, thus implicitly arguing that,
given additional services, Mother could perhaps get to a point
where return of Child to her care would not pose a substantial risk
of detriment to Child’s well-being. But she mounts no direct
challenge to the court’s finding that, as of the date of the
(continued…)
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¶40 In situations where a juvenile court makes a finding of risk
and therefore determines that a child cannot be returned to the
parent’s custody, our law then requires the court to do certain
things: “(a) order termination of reunification services to the
parent; (b) make a final determination regarding whether
termination of parental rights, adoption, or permanent custody
and guardianship is the most appropriate final plan for the minor
. . . ; and (c) . . . establish a concurrent permanency plan that
identifies the second most appropriate final plan for the minor, if
appropriate.” Id. § 80-3-409(4). As discussed above, the court
terminated reunification services, and did not err by so doing.
¶41 The court then considered the three options presented by
the second part of the governing statute: termination of parental
rights, adoption, or permanent custody and guardianship. 8 See id.
§ 80-3-409(4)(b). The court determined that permanent custody
and guardianship with Father was the most appropriate of those
three options.
¶42 Mother challenges the substance of this determination, and
she makes two specific arguments. First, she asserts that the
statutory subsection the court believed governed the situation—
section 80-3-409(4) of the Utah Code—doesn’t actually govern,
because in Mother’s view Child was “returned to” a parent
permanency hearing, return of Child to her care would create a
substantial risk of detriment to Child’s well-being.
8. Mother asserts that these three options are, in reality, only two
options because, in order to facilitate an adoption, the parent’s
rights must first be terminated. The State acknowledges that, in
many cases, the three options will indeed collapse into just two,
but notes that this will not always be the case; it specifically points
to “cases in which termination of parental rights is warranted
even where no adoption is contemplated,” such as in cases of
sexual abuse by the parent in question.
20220645-CA 17 2023 UT App 126In re A.S.G.-R.
(Father) after the permanency hearing. Second, and relatedly,
Mother acknowledges that one of our recent decisions—In re H.C.,
2022 UT App 146, 523 P.3d 736, cert. denied, 527 P.3d 1106 (Utah
2023)—interpreted the governing statute in a manner unfavorable
to her, and she asks us to overrule that recent case. We find neither
of Mother’s arguments persuasive.
1
¶43 Mother’s first argument challenges the juvenile court’s
interpretation of statutory text. In particular, she notes that a
threshold requirement of the governing statute is that the minor
not be “returned to the minor’s parent or guardian at the
permanency hearing.” See Utah Code § 80-3-409(4). Only if a child
is not “returned to the minor’s parent” at the permanency hearing
does a court need to choose from one of the three options set forth
in subsection (4)(b): termination, adoption, or permanent custody
and guardianship. See id. If a child is “returned to the minor’s
parent,” then a court presumably could select some other option
not listed in subsection (4)(b). As Mother sees it, the statutory
reference to “the minor’s parent” includes not only the parent
from whom the child was removed and with regard to whom the
“substantial risk” determination is being made, but also the
child’s other parent. And she asserts that, because Child was
placed in the custody of Father—Child’s other parent—after the
permanency hearing, the court erred by considering itself limited
to the three options set out in subsection (4)(b).
¶44 Our “overarching goal” in interpreting a statute is “to
implement the intent of the legislature.” See State v. Rushton, 2017
UT 21, ¶ 11, 395 P.3d 92. In attempting to ascertain that intent, we
start with “the language and structure of the statute.” Id. “Often,
statutory text may not be plain when read in isolation, but may
become so in light of its linguistic, structural, and statutory
context.” Id. (quotation simplified). “The reverse is equally true:
words or phrases may appear unambiguous when read in
20220645-CA 18 2023 UT App 126In re A.S.G.-R.
isolation, but become ambiguous when read in context.” Id. For
this reason, “we read the plain language of the statute as a whole,
and interpret its provisions in harmony with other statutes in the
same chapter and related chapters, avoiding any interpretation
which renders parts or words in a statute inoperative or
superfluous in order to give effect to every word in the statute.”
Id. (quotation simplified).
¶45 In our view, the phrase “the minor’s parent,” as used in
section 80-3-409(4), refers only to the parent from whom the child
was removed, who was offered reunification services, and to
whom return of the child “would create a substantial risk of
detriment” to the child. It does not refer to another parent with
whom the child is currently placed, who has not been ordered to
complete any reunification services, and with regard to whom the
court has not made any “substantial risk” determination. Indeed,
the thrust of this entire statutory section has to do with whether a
child will be reunited with a parent from whom the child has
been removed and who has received reunification services.
See Utah Code § 80-3-409. As already noted, subsection (2)
requires a court to make a threshold determination about
whether the “minor may safely be returned to the custody of
the minor’s parent,” something that may not occur if “return
of the minor to the minor’s parent would create a substantial
risk of detriment” to the minor. Id. § 80-3-409(2)(a), (b). The
verb “returned” is meaningful here: one does not “return” to
a situation in which one has never been in the first
place. See Return, Merriam-Webster, https://www.merriam-
webster.com/dictionary/return [https://perma.cc/Y4YF-3ENP]
(defining “return” as “to go back or come back again”). In the
subsection (2) context, the phrase “the minor’s parent” clearly
refers to the parent from whom the minor was removed, who
received reunification services, and with regard to whom the
“substantial risk” determination is being made; indeed, the
statute instructs juvenile courts that are making the subsection (2)
20220645-CA 19 2023 UT App 126In re A.S.G.-R.
threshold determination to consider, among other things,
whether the parent in question has demonstrated “progress” and
whether the parent has “cooperated and used the services
provided.” See Utah Code § 80-3-409(3)(a)(iv), (v). In our view, it
would be nonsensical to apply this phrase to the minor’s other
parent in a situation where the child was already in the custody
of that parent at the time of the permanency hearing, where that
parent did not receive reunification services, and where the court
made no “substantial risk” determination concerning that parent
at that hearing. Indeed, at oral argument before this court, Mother
conceded that the phrase “the minor’s parent,” as used in
subsection (2), must refer solely to the parent who received
reunification services and with regard to whom the “substantial
risk” determination is being made.
¶46 That same phrase—“the minor’s parent”—used two
subsections later means the same thing. As noted, we read statutes
as a whole, including all of their subsections, and “interpret [their]
provisions in harmony with other statutes in the same chapter and
related chapters.” See Rushton, 2017 UT 21, ¶ 11 (quotation
simplified). Under “the canon of consistent meaning,” there is a
“presumption that the established meaning of a word in a given
body of law carries over to other uses of the same term used
elsewhere within that same law.” In re Childers-Gray, 2021 UT 13,
¶ 142, 487 P.3d 96 (Lee, J., dissenting). And the “canon of
consistent meaning is at its strongest when it is applied to a term
used in neighboring subparts of the same statutory provision.”
Irving Place Assocs. v. 628 Park Ave, LLC, 2015 UT 91, ¶ 21, 362 P.3d
1241; see also Barneck v. Utah Dep’t of Transp., 2015 UT 50, ¶ 31, 353
P.3d 140 (determining that a term “cannot properly mean one
thing as applied to two of the objects in a series . . . but something
else as applied to the other object in the same series”). Thus, when
assessing the meaning of the phrase “the minor’s parent” in
subsection (4), it is highly relevant how that phrase is used in
subsection (2). And we conclude that, interpreted in its proper
20220645-CA 20 2023 UT App 126In re A.S.G.-R.
context, the phrase—as used in subsection (4) as well as
subsection (2)—refers only to the parent from whom the child was
removed, who received reunification services, and with regard to
whom the court is making the “substantial risk” determination,
and not to another parent who does not fit those criteria.
¶47 Accordingly, we reject Mother’s argument that subsection
409(4) has no application to her situation. By the plain terms of
that statutory section, the juvenile court—as soon as it determined
that Child could not safely be returned to Mother—was obligated
to apply that statutory subsection according to its text.
2
¶48 Under the text of that statutory subsection, a court that has
made a “substantial risk” determination must terminate
reunification services. See Utah Code § 80-3-409(4)(a). At that
point, the statute requires the court to “make a final determination
regarding whether termination of parental rights, adoption, or
permanent custody and guardianship is the most appropriate
final plan for the minor.” Id. § 80-3-409(4)(b). The language of this
statutory subsection therefore speaks of only three options, and
requires the court in this situation to choose one of them. And we
have recently interpreted this language according to its text, even
as applied to disputes between parents. See In re H.C., 2022 UT
App 146, 523 P.3d 736, cert. denied, 527 P.3d 1106 (Utah 2023).
¶49 Yet here, Mother nevertheless asserts that, at least in cases
involving disputes between two parents, juvenile courts ought to
be allowed to choose a different option: entry of a simple custody
order that is controlled by the usual standards governing entry
and modification of custody orders in divorce court. Mother
asserts that awarding a parent the status of “guardian” makes no
sense, given that a parent already has all the rights that a guardian
has. And she asserts that entering orders of permanent
guardianship as between parents has the effect—one she posits
20220645-CA 21 2023 UT App 126In re A.S.G.-R.
was unintended—of preventing one parent from being able to
seek modification of the custody order.
¶50 To her credit, Mother recognizes that our recent holding in
In re H.C. forecloses her argument for a fourth option. In that case,
the parents of a child were divorced, with a parenting plan that
gave primary custody to the mother. Id. ¶ 2. But later, the juvenile
court determined that the child had been neglected by the mother,
and the child was placed in the care of the father. Id. ¶¶ 4, 8. After
the permanency hearing, the juvenile court determined that the
child would be at substantial risk if returned to the mother’s
custody, and the court placed the child with the father under an
order of permanent custody and guardianship. Id. ¶¶ 28, 38. On
appeal, we affirmed the juvenile court’s decision, and we
interpreted subsection 409(4)(b) as limiting the juvenile court to
the three options set forth therein. Id. ¶ 58. We held that
subsection 409(4)(b) “leaves a juvenile court judge with no
discretion” to do anything else, and we specifically stated that the
statute “does not vest the juvenile court with the authority to defer
to the district court” with regard to custody of the adjudicated
child. Id. (quotation simplified).
¶51 In an effort to get around this roadblock, Mother asks us to
overrule In re H.C. We do possess the authority to overrule our
own precedent in appropriate cases. See State v. Legg, 2018 UT 12,
¶ 11, 417 P.3d 592 (stating that one panel of this court “retains the
right to overrule another panel’s decision if the appropriate
standard is met”). “But we do not do so lightly,” given our respect
for the principle of stare decisis, which ordinarily requires us to
defer to “the first decision by a court on a particular question.” See
State v. Garcia-Lorenzo, 2022 UT App 101, ¶¶ 42, 44, 517 P.3d 424(quotation simplified), cert. granted, 525 P.3d 1263 (Utah 2022).
¶52 “Before we may overrule one of our precedents, we must
engage in the two-part exercise required by our supreme court in
such situations.” Id. ¶ 45. “First, we must assess the correctness of
20220645-CA 22 2023 UT App 126In re A.S.G.-R.
the precedent, and specifically examine the persuasiveness of the
authority and reasoning on which the precedent was originally
based.” Id. (quotation simplified). “Second, we must assess the
practical effect of the precedent, including considerations such as
the age of the precedent, how well it has worked in practice, its
consistency with other legal principles, and the extent to which
people’s reliance on the precedent would create injustice or
hardship if it were overturned.” Id. (quotation simplified). Both
parts of the test must be satisfied before we may overrule a
precedent. See id. In this case, we need not discuss the second part
because, in our view, the first one is not satisfied.
¶53 With regard to the first part—the correctness of the
precedent—Mother asserts that our decision in In re H.C. “upends
the district court’s jurisdiction over custody matters and imposes
an unnecessarily restrictive scheme on custody between two
parents.” She points out that, when a child is placed with the other
parent after a permanency hearing, “the child isn’t in ‘legal
limbo’” and “all that is left to determine is what [the] custody
[arrangement] between the parents will look like.” And she
maintains that, if subsection 409(4)(b) is interpreted to require
courts to order permanent custody and guardianship in favor of
one of the parents, that result would serve to “override[] district
court custody orders” and would create a “super sole custody”
arrangement in which “the non-guardian parent can never
modify the terms of the guardianship.” She asserts that this is an
“absurd result” that “cannot be what the legislature intended.”
¶54 But in our view, the panel’s reasoning in In re H.C. was
sound. There, the court analyzed the text of subsection 409(4)(b)
and concluded that the language used by the legislature limited
juvenile courts in this situation to the three options set forth in the
text of the statute. See In re H.C., 2022 UT App 146, ¶¶ 58–59. Our
analysis of that same text leads us to the same conclusion.
20220645-CA 23 2023 UT App 126In re A.S.G.-R.
¶55 Moreover, Mother overlooks the fact that the panel in In re
H.C. considered many of the same arguments that Mother is
advancing here. In that case, the appellant asserted that “juvenile
courts should not be deciding custody between two fit parents.”
Id. ¶ 52 (quotation simplified). And the appellant complained that
an order of permanent custody and guardianship in favor of the
other parent may prevent her “from petitioning for custodial
change in the future.” Id. ¶ 53. We rejected these arguments, in
part, by noting that, given the court’s adjudication rulings, “this
was not merely a custody proceeding ‘between two fit parents.’”
Id. ¶ 54. And we acknowledged the remainder of these arguments
in a footnote, editorializing that “it seems odd that, in a situation
such as this with two parents vying for custody of a minor child,
the statute authorizes the award of permanent guardianship to
one parent over the other, where both enjoy parental rights in the
minor child.” Id. ¶ 59 n.13. But we found these arguments
nevertheless unpersuasive in light of the text of the “statutory
regimen that we [were] called upon to interpret and apply.” Id.
¶56 We share the sentiment of the panel in In re H.C. that the
text of the governing statute compels the interpretation described
there. The text selected and enacted by our legislature limits
juvenile courts to just three options in this situation. See id. ¶¶ 58–
59 & n.13 (stating that “permanent custody and guardianship is
one of only three options available by the terms of the controlling
statute when parental neglect has triggered the juvenile court’s
jurisdiction and the case progresses to a permanency hearing at
which parental neglect is found and reunification services are
terminated”). If our legislature intended a different result, it can
always amend the statute to provide for additional options—for
instance, entry of a simple custody order awarding primary
physical custody to the other parent, and allowing the district
court to manage things from there—that a juvenile court might be
able to apply in cases involving disputes between two parents.
But for now, the text of the governing statute speaks of only three
20220645-CA 24 2023 UT App 126In re A.S.G.-R.
options, applicable in all cases, and we must apply the statute as
written, Mother’s policy arguments notwithstanding. 9
¶57 For all of these reasons, we decline Mother’s invitation to
overrule In re H.C. That case—and the statutory text interpreted
therein—compels the conclusion that the juvenile court, in this
case, had only three options after concluding that it could not
return Child to Mother’s custody: it had to either (a) terminate
Mother’s parental rights, (b) work toward adoption, or (c) enter
an order of permanent custody and guardianship with someone
other than the parent at issue. See Utah Code § 80-3-409(4)(b); see
also In re H.C., 2022 UT App 146, ¶¶ 58–59. The juvenile court, by
selecting permanent custody and guardianship in favor of Father,
chose one of the available options. 10 In so doing, the court
9. Contrary to Mother’s arguments, a legislative choice to limit a
juvenile court’s options in cases like this one does not strike us as
absurd. As noted, we already rejected—in In re H.C.—the notion
that these situations involve “two fit parents.” See In re H.C., 2022
UT App 146, ¶ 54, 523 P.3d 736, cert. denied, 527 P.3d 1106 (Utah
2023). Where the child in question is a child adjudicated to be
within the jurisdiction of the juvenile court by reason of abuse,
neglect, or dependency, there exist policy-based reasons to place
additional restrictions on a parent’s ability to reinitiate or resume
custody of the child in question. It is of course not our role, in
matters of statutory interpretation, to decide between reasonable
policy options; we note only that enactment of a statute
interpreted along the lines set forth by In re H.C. would be
supported by at least some reasonable policies, and would not be
a definitionally absurd policy choice.
10. Mother, for obvious reasons, does not challenge the juvenile
court’s choice, as between the three options. From her perspective,
imposing a permanent custody and guardianship arrangement is
preferable to termination of her parental rights.
20220645-CA 25 2023 UT App 126In re A.S.G.-R.
properly followed the governing statute, and did not misinterpret
it. We therefore reject Mother’s second substantive argument.
B
¶58 Finally, Mother makes two challenges to the procedure the
juvenile court employed in arriving at its conclusion to award
permanent custody and guardianship to Father. We reject both
challenges.
¶59 First, Mother claims that the court acted inappropriately
when it took the following two actions in the same ruling and after
the same hearing: (a) it changed Child’s final permanency goal to
permanent custody and guardianship and (b) it entered an order
effectuating the permanent custody and guardianship. As Mother
sees it, the court was required “to first change the permanency
goals . . . and then hold a review hearing (possibly another
evidentiary hearing) to determine whether the final permanency
goal is established.” Mother notes that “nothing in section 409
permits a juvenile court to” accomplish both things in the same
ruling and after the same hearing. But Mother cites no statute or
appellate opinion forbidding the court from doing so and, in this
situation, we see no reason why the court could not have
proceeded as it did.
¶60 Had the court chosen “adoption” as the primary
permanency goal following the permanency hearing, then
perhaps Mother would have a point: as a practical matter, setting
adoption as the goal entails a fair bit of extra work. To facilitate an
adoption, the parent’s rights would need to be terminated, and to
make that happen, the State (or another petitioner) would need to
file a petition for termination of parental rights, which would
need to be litigated. And the juvenile court would also need to
concern itself, in the event the parent’s rights were terminated,
with finding an appropriate adoptive placement for the child.
20220645-CA 26 2023 UT App 126In re A.S.G.-R.
¶61 But where the court selects permanent custody and
guardianship as the primary permanency goal, and the child is
already placed with the person to whom custody and
guardianship is to be given, there are not necessarily any
additional steps that the court needs to take before making that
goal a reality. Certainly, in this case Mother doesn’t identify any
additional work that needed to be done in the interim. And as
noted, Mother points to no statute or governing case forbidding
the juvenile court, in cases like this one, from proceeding
efficiently and entering the order of guardianship in the same
order as it selects the primary permanency goal. Mother has
therefore not carried her burden of demonstrating error.
¶62 Second, Mother takes issue with the juvenile court’s
decision, earlier in the case, to set different permanency goals for
each parent. As noted above, after adjudicating Child dependent
as to Father, the court initially set the primary permanency goal,
as to Father, as “Reunification/REMAIN HOME,” and the
concurrent permanency goal as “Remain Home with non-
custodial parent.” Later, after adjudicating Child neglected as to
Mother, the court set a primary permanency goal, as to Mother, of
“RETURN HOME” and a concurrent permanency goal of
“Permanent Custody and Guardianship with a Relative.” The
court explained that it was setting “different permanency goals
for each parent,” and that for Father, “the primary goal will be”
for Child to “remain[] home with him,” with “the concurrent goal
of reunification if she is removed from his care.” For Mother, the
primary permanency goal was “reunification, with the concurrent
goal of guardianship with [a] relative.” Mother challenges this
procedure as improper, asserting that this choice made “it
additionally difficult for any parent to determine what the effect
of abandoning one of the primary plans would be.” But Mother
cites no statute or governing case forbidding the court from
engaging in this procedure, and she overlooks the fact that she did
not object to these goals when they were set. In addition, Mother
20220645-CA 27 2023 UT App 126In re A.S.G.-R.
does not articulate how the court’s decision to set slightly
different permanency goals vis-à-vis each parent resulted in any
harm to her at the end of the case. Accordingly, Mother has not
carried her burden of demonstrating reversible error. 11
CONCLUSION
¶63 We discern no clear error in the juvenile court’s decision to
terminate reunification services. And we reject Mother’s
challenges—both substantive and procedural—to the court’s
award of permanent custody and guardianship to Father.
¶64 Affirmed.
11. After entering permanent custody and guardianship in favor
of Father, the court terminated its jurisdiction without making
any effort to quantify what Mother’s reasonable parent-time
might be. In this situation, where Mother’s parental rights were
not terminated but where permanent custody and guardianship
of Child was vested in Father, Mother retains residual parental
rights and duties, including “the right to reasonable parent-time.”
See Utah Code § 80-1-102(70)(a)(iv). But Mother does not
challenge the court’s failure to more specifically quantify her
“reasonable parent-time,” so we do not further discuss the matter.
20220645-CA 28 2023 UT App 126