In re H.M...

2023 UT App 122THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF H.M. AND D.M.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
G.B.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20220774-CA
Filed October 13, 2023
First District Juvenile Court, Logan Department
The Honorable Kirk M. Morgan
No. 1187751
Julie J. Nelson and Alexandra Mareschal,
Attorneys for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee State of Utah
Jonathan P. Thomas, Attorney for Father
Martha Pierce, Guardian ad Litem
JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.
TENNEY, Judge:
¶1 Mother and Father separated in 2015 and were divorced in
2018. They had two children during their marriage—D.M. and
H.M. (collectively, the Children). From 2015 until 2020, Mother
repeatedly told state authorities that Father had physically and
sexually abused the Children. In several instances, Mother
prompted the Children to make allegations against Father too.
In re H.M.
Although authorities investigated the reports, none of the
investigations resulted in a finding that Father had abused the
Children. Also, on two occasions in 2020, Mother absconded with
the Children during times in which she did not have custody.
Both times, law enforcement was involved in locating and
returning the Children to Father’s custody.
¶2 After Mother encouraged one of the Children to file a new
report of abuse against Father in January 2022, the Division of
Child and Family Services (DCFS) filed a petition to terminate
Mother’s parental rights. At the close of a several-day trial, the
juvenile court issued an order finding that Mother “cannot stop
her destructive behavior” of making “false allegations” against
Father. The court then terminated Mother’s parental rights.
¶3 Mother now appeals the termination decision. For the
reasons set forth below, we affirm.
BACKROUND
¶4 Mother and Father had two children during their marriage:
D.M., who was born in 2012, and H.M., who was born in late 2014.
Mother and Father separated in 2015 when H.M. was
approximately three months old, and their divorce was finalized
in 2018. Mother subsequently married another man (Stepfather).
Allegations of Abuse from 2015 Through 2020 1
¶5 The reports of abuse began in February 2015, when DCFS
received a referral alleging that during the marriage between
1. It’s appropriate at the outset to explain some of the word
choices and information gaps in our recitation of the history of
this case. As indicated in the introductory paragraphs of this
opinion, this case centers on a years-long history of reports of
(continued…)
20220774-CA 2 2023 UT App 122In re H.M.
Mother and Father, Father would “throw things, but not at
[Mother], and punch holes in the doors.” DCFS chose not to accept
this referral as a basis for action. In June 2015, DCFS received a
referral alleging that Father views pornography “including
teenaged girls.” This referral was unaccepted because there were
no allegations that the Children were being abused or neglected.
¶6 In May 2016, DCFS received a referral alleging that after
D.M. came back from parent-time with Father, he would not sit
down because “his bottom hurt” and his anus was “red and
inflamed.” The referral was not accepted because D.M. did not
make any disclosure that any abuse had occurred. In September
2016, DCFS received a referral alleging that the Children had
returned from parent-time with Father with black eyes and that
abuse that were made against Father. The reports themselves are
not in the record, so the record is limited to descriptions of those
reports that came from others (most commonly the juvenile court
in its various rulings).
In many instances, the passive voice was used when
describing who had made an individual report—i.e., the record
would say something like, “a referral was made.” To be faithful
to the record, we’ve proceeded similarly. Also, the record
sometimes says that a report was made but doesn’t then say what
DCFS or law enforcement did with that report. And in some
instances, the record makes passing reference to a reason a report
was unaccepted without then providing much (or even any)
explanatory detail. Our silence reflects those omissions too.
While acknowledging these caveats upfront, we note that
the clear implications of the record generally and of the juvenile
court’s termination decision more particularly are that (1) with
the exception of the reports that were made by the Children
themselves, it was Mother who was making most (if not all) of the
reports of abuse against Father and (2) none of the reports of
physical or sexual abuse that were made against Father were
corroborated or accepted by DCFS or law enforcement.
20220774-CA 3 2023 UT App 122In re H.M.
Father commonly yelled at the Children, which allegedly made
D.M. fearful to get out of bed to use the bathroom at night. The
referral was unaccepted because the Children did not report any
injuries from Father or provide specific details about what Father
was saying to the Children.
¶7 In early October 2016, DCFS received a referral alleging
that the Children were being physically abused by Father and that
H.M. had been sexually abused by Father. The referral was
accompanied by photographs of a bruise on H.M.’s leg. When a
DCFS worker interviewed D.M. about these allegations, D.M.
reported that Father had pushed him into a “monkey bag,” but
D.M. couldn’t explain what a “monkey bag” was. D.M. made no
disclosures of sexual abuse.
¶8 In late October 2016, Mother contacted law enforcement
and reported that H.M. had complained of his “bum hurting”
after returning from parent-time with Father. Mother also said
that she changed H.M.’s diaper and that there was blood present
and that she had also observed tearing on his anus. Mother told
law enforcement that H.M. had said that Father put his finger “in
there.” DCFS interviewed H.M. the following day. During that
interview, H.M. said that he had been “hurt” at “daddy’s house,”
but he made no other disclosures. Shortly thereafter, H.M.
underwent a physical examination at the Children’s Justice
Center (the CJC), but no evidence of sexual or physical abuse was
discovered during this examination.
¶9 In September 2017, DCFS received a referral alleging that
D.M. had been physically abused by his paternal grandfather.
When DCFS interviewed D.M., D.M. said that “grandpa pushed
him backwards and he fell on the rocks, because he didn’t
hear grandpa.” When the grandfather was then interviewed,
he acknowledged that he had accidentally knocked D.M.
over during a recent visit when moving him away from
something.
20220774-CA 4 2023 UT App 122In re H.M.
¶10 In June 2018, DCFS received a referral alleging that during
a parent-time exchange, Mother had pulled Father’s beard and
kicked him and that Father had ripped out one of Mother’s hair
extensions. This case was not accepted.
¶11 In November 2018, DCFS received a referral alleging that
Father attempted to hit Mother with his car and that Father had
threatened to kill Mother by loosening the screws on her car.
While investigating this referral, DCFS interviewed both of the
Children. H.M. reported that he gets “hurt” at “all of my parents’
houses,” that his parents get frustrated with each other, and that
Father punches Mother. D.M. reported that his parents are
“always fighting.”
¶12 In December 2018, March 2019, and April 2019, Father
made reports against Mother suggesting that she was using illegal
drugs and wasn’t taking proper care of the Children. None of the
referrals were accepted.
¶13 In April 2019, DCFS received a referral alleging that the
Children had been “sodomized” by both Father and the paternal
grandfather during visits with Father and that the paternal
grandmother was aware of the abuse but not intervening. The
referral also alleged that Father had punched D.M. in the stomach
and testicles. As part of an investigation into these allegations,
both of the Children were interviewed at the CJC. Though
somewhat unclear, the record suggests that D.M. said nothing
about abuse in his interview. H.M., however, said that his “old
dad” is “going to be in the car when it explodes” “because he was
mean to me.” H.M. also said that Father “put his penis in my
bum” and “spanks [my] bum.” H.M. said that Father did the same
thing to his cousins and that Mother told him this. When the
interviewer spoke to Mother about what the Children had said,
Mother asked the interviewer to talk to D.M. again, which the
interviewer declined to do. During this investigation, Mother was
“jittery and unable to finish sentences.”
20220774-CA 5 2023 UT App 122In re H.M.
¶14 In May 2019, Mother sought a protective order against
Father. The protective order request was later denied. Around this
same time, Mother informed DCFS that H.M. had bloody stools
and that H.M. had reported that Father had “punched and kicked
him.” Later that month, DCFS received information that H.M. had
allegedly said Father “peed in his butt.” Father denied all
allegations when interviewed by a detective from the Smithfield
City Police Department.
¶15 In June 2019, DCFS received another referral alleging that
the Children were being physically, sexually, and emotionally
abused by Father. DCFS visited with the Children and observed
no suspicious bruises. DCFS also found the accusations of
physical abuse to be without merit. As part of this investigation,
a DCFS caseworker and a Smithfield City Police Department
detective interviewed Mother. During this interview, Mother
alleged that the Children had told her that they “are being raped”
and “punched in the crotch” by Father.
¶16 On July 1, 2019, Mother brought the Children to the CJC
for an interview. At the outset of H.M.’s interview, and before the
DCFS interviewer had even finished explaining the nature of the
interview to him, H.M. said, “Well, my dad puts his penis in my
bum.” H.M. said that Mother was present when this occurred, and
that Father, paternal grandfather, and paternal grandmother “did
it.” H.M. further reported that Father punches him with a “real
hammer that is metal and black.” H.M. also reported that Father
punches him in the penis and “punches me with his butt.” When
asked what he saw when Father put his penis in his bottom, H.M.
said, “That’s all I needed to tell you. I didn’t see anything.” When
asked again what he saw, H.M. responded, “That’s all I have to
tell you.” D.M. was also interviewed at the CJC that day. D.M.
responded “nothing” and “I don’t know” to the majority of the
interviewer’s questions. He also said that “nothing happened” at
Father’s house and that “nothing happened to his brother that
hurt him.” In addition, D.M. told the interviewer that Mother
20220774-CA 6 2023 UT App 122In re H.M.
would talk to H.M. about events that happened at Father’s house.
After finishing the interviews with the Children, the interviewer
and a Smithfield City Police Department detective interviewed
Mother. They encouraged Mother “not to press” the Children “for
information and not to question them.”
¶17 Later that month, Mother contacted law enforcement
during a parent-time exchange with Father. Mother told law
enforcement that the Children wanted to share “their concerns”
regarding Father. The Children spoke to law enforcement, and
nothing further was reported to DCFS.
¶18 On February 21, 2020, DCFS received another referral
alleging that the Children were being physically, sexually, and
emotionally abused by Father. This referral alleged that Father
had threatened to kill the Children and Mother if the Children
reported the abuse. The referral further alleged that, within the
past few days, Father had touched the Children’s genitals and
“‘go[ne] inside’ their bums.” The referral also alleged that Father
would give D.M. medicine to induce vomiting when D.M. would
make a mistake on his homework and that Father would not allow
the Children to use the bathroom in the middle of the night.
¶19 While investigating this latest referral, a DCFS investigator
met with Father and the Children at Father’s home. Father denied
each allegation. The DCFS investigator also observed that the
Children interacted with her appropriately, appeared happy and
healthy, and had no marks or bruises. During this investigation,
DCFS came to believe that the Children were being emotionally
abused by Mother.
¶20 On February 25, 2020, DCFS received a report that Father
takes the Children to “drinking parties,” that Father stalks Mother
and Stepfather, and that Father “rapes” the Children. The
Smithfield City Police Department conducted a welfare check but
failed to find any support for the allegations or anything out of
20220774-CA 7 2023 UT App 122In re H.M.
the ordinary with the Children. At this point, the Smithfield City
Police Department informed DCFS that it would no longer
conduct welfare checks on the Children “because of the number
of reports made and lack of findings of concern.”
¶21 DCFS interviewed the Children again at the CJC on March
2, 2020. H.M. reported that Father and neighbors put cameras
outside his house and that the “cameras are made from poisonous
stuff that make[s] people go crazy and rip kids’ heads off.” H.M.
said that the cameras have speakers to “do bad stuff to [Mother].”
H.M. denied having ever been hurt and denied that anyone told
him what to say at the interview. In his interview, D.M. reported
that he didn’t “remember if anything has happened to him” and
that there was “nothing he needs to talk about” happening at
either parent’s house. D.M. also stated that no one told him what
to say at the interview.
¶22 On March 20, 2020, Mother obtained an ex parte protective
order against Father. A few days later, DCFS received a report
alleging that Father had been sexually inappropriate in front of
the Children, that Father had raped Mother in the presence of the
Children, and that Father had been telling the Children that there
are cameras at Mother’s house watching them. Father denied
these allegations.
¶23 On March 26, 2020, the court held a hearing on the ex parte
protective order. Less than an hour before it began, Mother texted
a DCFS employee and alleged that the Children wanted to tell her
about abuse from Father. Mother then brought a recording of the
Children alleging sexual abuse by Father to the court hearing, so
the hearing was continued. At a hearing that was held on April
30, the court ordered that despite Mother’s allegations, Father
could resume his previously ordered parent-time.
¶24 A few days later, Mother refused to bring the Children to
the exchange point, telling law enforcement that she believed the
20220774-CA 8 2023 UT App 122In re H.M.
Children were in danger. That same day, the Children were
interviewed at a DCFS office. Without prompting, and without
waiting for the interviewer to explain what the interview would
be about, H.M. said that Father had “choked him, peed in his
mouth, and put his penis in his bum and it bled, and that [H.M.’s]
neck was broken.” H.M. said that these things all occurred in the
middle of church and that “they” were wearing church clothes
when it all happened. When asked for more detail, H.M. said,
“that’s all I said, that’s all I needed to tell you about,” and he
continued to reply “that’s all” and “that’s all he did” to further
questions. H.M. then became emotional and visibly upset, and
when asked why, H.M. responded, “[B]ecause that’s what I
needed to say to you!” When asked if someone had told him what
to say, H.M. said that he and Mother had “talked on the iPad
about it.”
¶25 When Mother was asked about H.M.’s statements later that
day, Mother claimed that H.M. must have been referring to the
recorded disclosure he had previously made and which Mother
had previously brought to court. Following the interview, Mother
asked DCFS if she still needed to send the Children to Father for
parent-time the following day. DCFS informed Mother that there
was not enough information to support the allegations and that it
was not recommending any adjustment to parent-time.
¶26 On May 3, 2020, law enforcement was called to conduct a
welfare check at Mother’s home after she reported that she was
afraid Father was going to come shoot her and the Children. A
week later, DCFS received a report that Father had been unable to
retrieve the Children for his parent-time. Law enforcement soon
learned from the maternal grandfather that Mother and the
Children were staying at a local hotel, but he would not disclose
its location. On May 9, 2020, Mother brought the Children to the
Bountiful City Police Department to demonstrate to law
enforcement that the Children were physically safe.
20220774-CA 9 2023 UT App 122In re H.M.
¶27 On May 11, 2020, Mother called law enforcement in Tooele
to report that the Children’s paternal aunt and uncle were
sexually and physically abusing the Children. The next day, DCFS
received an additional report that Mother had told law
enforcement in Layton that the Children had been sexually
abused by Father and were being victimized by a sex trafficking
ring. Law enforcement stated that Mother was speaking rapidly
and that the conversation “went in circles.” Law enforcement was
concerned that Mother was under the influence of a substance or
was suffering from a mental illness. H.M. also called law
enforcement that day and reported that he had been abused.
¶28 On May 14, 2020, Father obtained a writ of assistance,
authorizing the help of law enforcement to retrieve the Children
from Mother. Mother refused to cooperate with this order, so
Father received a second writ of assistance on May 21, 2020,
authorizing law enforcement to locate Mother through cell phone
tracking. The Children were eventually recovered from a hotel by
law enforcement.
Protective Supervision Services Case
¶29 On May 26, 2020, the State filed an expedited verified
petition for protective supervision with the juvenile court. The
State requested that the Children remain in Father’s custody, with
DCFS providing protective supervision services. In June 2020, the
juvenile court ordered DCFS to supervise the Children’s visits
with Mother moving forward.
¶30 During a supervised visit at a DCFS office on July 2, 2020,
Mother, Stepfather, and a step-grandfather took the Children and
left the building. H.M. cried, yelled, and became upset when the
step-grandfather picked him up and carried him out. Mother and
the others left with the Children despite DCFS employees telling
Mother that law enforcement would be called. Law enforcement
soon located Mother, Stepfather, the step-grandfather, and the
20220774-CA 10 2023 UT App 122In re H.M.
Children in a nearby canyon and, pursuant to a warrant, returned
the Children to Father.
¶31 On July 13, 2020, the juvenile court found that Mother had
neglected the Children by attempting to alienate them from
Father and by making repeated reports that Father had abused the
Children. The court ordered the Children to remain in Father’s
custody, and it further ordered that Mother’s visits must be
supervised by a professional visit supervisor and a security
guard. The court also ordered Mother and Stepfather to
participate in psychological evaluations and receive treatment.
Mother and Stepfather subsequently participated in the ordered
psychological evaluations and participated in follow-up
treatment with a psychologist specializing in high-conflict
custody cases. The evaluating psychologist concluded that
Mother “is stuck in her narrative about what has transpired with
the Children” and that she “lacks insight into her own behaviors.”
¶32 The Children began receiving therapy from a trauma
therapist (Therapist). Therapist initially diagnosed both of the
Children with an acute stress disorder, though she later modified
the diagnoses to post-traumatic stress disorder. Therapist opined
that the Children had suffered cumulative and complex trauma
because of Mother’s actions, and Therapist noted that their
symptoms included intrusive thoughts, negative moods, sleep
disturbances, irritable behavior, angry outbursts, and physical
aggression. In an August 2020 letter to the court, Therapist said
that both Children, and more particularly H.M., had expressed
fear of being “stole[n]” by Mother again and of having the police
“chase [them] down.” Therapist also described D.M.’s stress
related to the May 2020 hotel stay.
¶33 As noted, Mother began having supervised visits with
Children in July 2020. DCFS’s progress notes indicate that Mother
asked “some inappropriate questions during the visits,” e.g., that
she had asked the Children “multiple times if they are ok or if
20220774-CA 11 2023 UT App 122In re H.M.
there is anything wrong” and that Mother also questioned the
Children about “where they live, who lives with them, and if
anyone is telling them not to tell her things.” Although Mother
had been told several times not to talk to the Children about the
case, Mother asked the Children in September 2020 “if they could
tell someone about the things they told her and the things she said
were not crazy,” and that if they did, “they could go home with
her because ‘they think that I’m lying.’” When the supervising
DCFS caseworker (Lead Caseworker) told Mother not to talk
about these things with the Children, Mother became defensive
and told Lead Caseworker to “back off.”
¶34 Mother’s supervised visits began proceeding without
serious incident, though, and in March 2021, the juvenile court
removed the requirement that a security guard be present. The
court also ruled that the Children could have visits in Mother’s
home if Mother provided a minimum of three negative drug tests
and was in compliance with all other provisions from a Child and
Family Plan. In April 2021, Therapist noted that D.M. had said
that he had “mixed up feelings” about the possibility of staying at
Mother’s home. D.M. said that he wanted to “stay overnight at
[his] mom’s house,” but he was “scared” that she would “ask
questions about [him] getting hurt” and felt like he had “to
answer those things she asks.” Therapist also noted that D.M. felt
pressured by Mother to say that “bad things” had happened at
Father’s house. Therapist noted that D.M. feels like he
“disappoint[ed]” Mother if he told her that he was safe at Father’s
house.
¶35 In May 2021 and again in July 2021, the juvenile court
increased the length of Mother’s visits with the Children. In
September 2021, the court began allowing unsupervised visits at
Mother’s home. In October 2021, however, the Children told
DCFS that Mother “was starting to ask questions” about Father’s
“house like before and they [didn’t] like it when” she did that. In
November 2021, the Children reported to DCFS that “the visits
20220774-CA 12 2023 UT App 122In re H.M.
have been going well” and that Mother “hasn’t asked them
questions about [Father’s] house anymore.”
¶36 At a December 8, 2021, review hearing, the Guardian Ad
Litem (the GAL) recommended closing the protective supervision
services case due to the substantial completion of services
provided to Mother and Stepfather. At the close of the hearing,
Father was awarded primary custody of the Children, and the
juvenile court ordered the Children to be released from the
protective supervision of DCFS. The case was then closed.
Mother’s Allegations Against Father Resume
¶37 Less than a month after the protective supervision case was
closed, a series of events occurred in rapid succession that again
involved Mother implicating Father in alleged abuse.
¶38 On January 3, 2022, D.M. reported to a school counselor
that Father was hitting him. D.M. was unable to provide any
further context or detail about the alleged abuse. On January 4,
DCFS received a referral that Mother was acting erratically and
had perhaps used methamphetamine. That same day, Mother
refused to return the Children to Father following a mid-week
visit. On January 5, DCFS received a referral alleging that Father
“may have” physically abused D.M. On January 6, Mother
attempted to take the Children from their school, even though
that day was not hers under the parent-time schedule. Law
enforcement was called, and in the presence of both the Children
and other school children, Mother accused Father of attempting
to kidnap the Children. The Children went home with Father.
¶39 On January 10, D.M. was interviewed at the CJC. During
the interview, DCFS received an additional report that Father was
physically abusing D.M. and sexually abusing him by putting “his
private parts in [D.M.’s] private parts.” When the interviewer
asked D.M. about this information, D.M. stated that Father “hits
20220774-CA 13 2023 UT App 122In re H.M.
[him], spanks [him], chokes [him], and hurts [him],” but he denied
that Father had done anything else to his body. When D.M. was
asked why he decided to talk about these things that day, D.M.
stated he “wanted to get it out” and was “too scared to talk about
it before.” H.M. was also interviewed at the CJC that day, but he
said nothing about any abuse.
¶40 That same day, DCFS learned that the Cache County
Sheriff’s Office had just received a letter that was written by D.M.
in which D.M. alleged that Father had physically and sexually
abused D.M. and H.M. When a detective spoke with Mother that
day, Mother told him that she had “no idea” that D.M. had written
the letter. On January 11, D.M. was interviewed at his school
regarding the letter by a detective (Detective). D.M. said that
“nobody knows about the letter” and that he had ridden his bike
to drop it off in a mailbox. When asked for further details, D.M.
responded, “I don’t know” and “I don’t remember.” D.M. also
said that he “knew” the address for the sheriff’s office and that he
had run a Google search and used YouTube on his tablet to learn
how to send a letter.
¶41 Detective obtained a search warrant allowing him to
examine the tablets used in Mother and Stepfather’s home.
Pursuant to this search, Detective found no evidence of any
searches like those described by D.M. But Detective did learn that
Mother had searched “when does Sheriff read the mail” on
January 10, 2022.
¶42 After obtaining this evidence, Detective interviewed
Mother again at the sheriff’s office. Mother now acknowledged
that she had taught D.M. how to “write this letter.” She also
admitted to having looked up the address of the sheriff’s office
and having taken D.M. to the post office to mail the letter. Mother
then said that D.M. had told her that Father has “hit, choked, and
sodomized” him and that H.M. had said that the first time Father
“sodomized him” was when he was three years old. Mother said
20220774-CA 14 2023 UT App 122In re H.M.
that H.M. couldn’t sit down because it hurt and that “something
came out of his butt when he went to the bathroom.” Mother said
she was having his underwear “tested for DNA” “in Florida,” but
she refused to give Detective any more information about the
alleged DNA testing. Mother said that she “knows this stuff is
true” and that the Children were being “put back with” a
“pedophile.”
¶43 On January 12, D.M. was again interviewed at school, this
time by Lead Caseworker. D.M. began crying and stated that
Mother “made me write that letter.” D.M. said that the “choking,
the spanking and the hitting” “didn’t really happen” and that
Mother had instructed him to write a letter about “something bad
about” Father and “all the mean stuff she thinks has happened”
to D.M. He said that he did not ride his bike to the post office but
that Mother had helped him address the envelope and had then
driven him there. Lead Caseworker also interviewed H.M. at
school that day. H.M. reported that Mother “forced” D.M. to write
a letter to the police because Mother “is trying to get dad arrested”
“so they can live with her forever.” At trial, Therapist testified that
both Children told her the same things about the events
surrounding this letter and that both Children had also told her
that as they were mailing the letter, Mother exclaimed, “This is a
day we will celebrate every year.”
Termination Proceedings
¶44 DCFS sought protective supervision services for the
Children on January 19, 2022. In February 2022, DCFS filed a
petition for the termination of Mother’s parental rights.
¶45 The Children soon resumed regular therapy with
Therapist. Therapist later testified that “D.M. came in very tearful,
very confused. He had been through four to five interviews” in
one week and was “wrestling with himself because he had lied
during some of them because he felt like that was the right thing
20220774-CA 15 2023 UT App 122In re H.M.
to do for” Mother. Therapist testified that D.M. was “having a lot
of shame towards himself” and that D.M. told her that he felt like
he had “to say that these things have happened in order to make
[Mother] happy.” Therapist said that H.M. told her that he was
“tired of all the asking stuff with [Mother].”
¶46 From January 2022 through the termination trial in July
2022, Mother was only allowed to have supervised visits with the
Children. Therapist later testified that H.M. was initially “very,
very vocal about not wanting to do the visits.” H.M. told
Therapist that Mother “just—she comes at me and comes at me. I
don’t want to go. I don’t want to deal with it.” After a March 2022
visit, H.M. reported to Therapist that he “didn’t like it and it
didn’t feel safe.” H.M. said that “it sort of made [his] stomach hurt
and like maybe she was going to take [him] again.”
¶47 Lead Caseworker later affirmed Therapist’s view that H.M.
was initially hesitant to have visits with Mother after the January
2022 incidents. She subsequently testified that H.M. refused to
attend one visit with Mother and that when he had visits with
Mother early on, he was “emotionally dysregulated.” But Lead
Caseworker also testified that H.M. eventually warmed up to the
visits and that by the time of trial, he would sit in Mother’s lap
and hug her. Lead Caseworker testified that D.M. was “very
good” with Mother and that they “like to play together.”
¶48 The GAL was still concerned, though, and requested that
Mother’s supervised visits be suspended. The court held a hearing
in May 2022 to consider this request. At the close of the hearing,
the juvenile court found that there was “no evidence whatsoever
of any harm or trauma being caused to D.M. from the visits with
[Mother] that have occurred subsequent” to January 2022 and that
“[s]upervised visitation is in the best interest of the Children.” The
court emphasized that it intended “for the visits between the
Children and [Mother] to occur, regardless of whether the
Children want to go or not.” Shortly before trial, D.M. indicated
20220774-CA 16 2023 UT App 122In re H.M.
that he wanted visits with Mother to “last longer,” and H.M.
indicated that he wanted the visits to be at Mother’s house.
Trial
¶49 In July 2022, the juvenile court held a four-day trial on
DCFS’s petition to terminate Mother’s parental rights. The court
heard testimony from 17 witnesses, including numerous
professionals.
¶50 The State called Mother as a witness on the first day of trial.
During her testimony, Mother claimed that she hadn’t personally
seen the letter that D.M. wrote to the sheriff in January 2022 and
that she was now seeing it in court for “the first time”; Mother also
claimed that she didn’t know what its contents were. But the State
introduced evidence showing that Mother’s assertions about the
letter were not true. For example, the State introduced a video of
Mother’s interview at the sheriff’s office, and this video showed
Mother reading the letter. The State also introduced an email that
Mother had written to her father (the Children’s maternal
grandfather) after the incident that showed that she was aware of
the letter’s contents.
¶51 As for the long-term allegations of abuse that had been
made against Father, Mother testified twice that she didn’t know
if Father had actually abused the Children. And with respect to
the allegations she’d made against Father, Mother testified that
she had “followed the rules” and that she had “made sure” she
didn’t talk to the Children about their disclosures to authorities.
¶52 Lead Caseworker testified at trial. She testified that the
Children had been traumatized by “the fear of them being taken,”
noting that H.M. has “dreams about a commander coming into a
hotel room,” which Lead Caseworker linked to the incident in
2020 in which law enforcement retrieved the Children from the
hotel. Lead Caseworker also testified that DCFS sought
20220774-CA 17 2023 UT App 122In re H.M.
termination of parental rights instead of another round of
protective supervised services because DCFS had “exhausted all
options.” She said that while Mother “in her own testimony has
said that she learned a lot [from the protective supervision
services case] and that she . . . knew at the time what to do in that
situation,” Lead Caseworker didn’t “know what more we could
provide.”
¶53 Therapist testified at trial too. According to Therapist,
when she began seeing the Children in January 2022, the Children
“expressed a fear” about “what possibly may happen again,”
wondered if Mother “would take [them] again,” and asked
whether they would “have to go to the hotel again.” When
Therapist was asked whether she thought there was “anything
less significant than the complete termination of [Mother’s] rights
that can adequately protect these Children,” she responded, “if
we look at adequate protection coupled with normalcy, the
answer to that is no.” Therapist further testified that her
recommendation for terminating Mother’s parental rights “was
based on the cumulative therapy [she] had done with the
[Children] in the last few years” and that she thought that
termination was in “their emotional best interest.” Therapist
testified that H.M.’s “exact words” to her were, “How would you
feel if this were always happening to you? I just want a normal
life.” When she was asked how Mother could be stopped from
continuing to traumatize the Children, Therapist testified, “We
stop the interaction.” She also testified that although DCFS “may
have talked about the possibility of supervised visitation,” “that’s
not really along the normal, natural developmental means, and so
I didn’t feel like that was the best option.”
¶54 In the GAL’s closing argument, she emphasized that
“[c]ontact that isn’t highly structured and supervised, holding
[Mother] accountable, results in trauma to these Children.
They’ve expressed discomfort about the idea of being in
[Mother’s] presence without a protective third party present.” The
20220774-CA 18 2023 UT App 122In re H.M.
GAL further asserted that Mother “cannot be trusted to follow a
court order. She cannot be trusted to act in the best interest of her
children. Supervising visits for the rest of these Children’s
childhood is not feasible, it’s not in their best interest, it’s not
appropriate. Nothing less than termination of this relationship
can adequately protect these Children now and into the long
term.”
¶55 After the GAL’s closing argument concluded, Mother’s
counsel asserted in her own closing argument that “[t]o presume
that—first of all, that there’s no other choice but termination in
this case, I don’t think it’s a reasonable position.” Mother’s
counsel argued that
there were no specific reasons given during trial as
to why these other options were not possible. Some
of these less—you know, short of termination
options would be to reopen the [protective
supervision services] case and to implement . . . a
reliable source for the kids to contact directly as to
eliminate . . . the possibility of them making reports
to either parent, to implementing a high-conflict
therapist/family counselor . . . . Or start a new
[protective supervision services] case . . . . Or
permanent legal custody and guardianship with the
dad, but which would allow the mom to remain in
the kids’ lives and continue playing an active role in
that. There are other options that would—that are
short of termination that would preserve—that
would enable the kids to continue having a
relationship with their mother.
Mother’s counsel asserted that Mother had “worked hard and
earnestly” to “be a better mom” and “did everything she was
asked to do.” Mother’s counsel admitted that after the close of the
protected supervision services case, “not all of the
20220774-CA 19 2023 UT App 122In re H.M.
recommendations made by the therapist were followed,” but
counsel suggested that if there had been “an assigned family
therapist in place . . . we wouldn’t be here today.” Counsel
concluded her argument by requesting that the court reopen the
prior protective supervised services case and “require the parties
to comply with the recommendations as given by the service
providers.”
Termination Decision
¶56 The juvenile court subsequently issued a written decision
terminating Mother’s parental rights to the Children.
¶57 Early in this ruling, the court found the testimony of
Therapist to be “both credible and helpful in provid[ing]
understanding of the harm done to the Children due to the actions
of [Mother].” By contrast, the court found that Mother’s testimony
at trial “was not credible and at times was simply untruthful.”
Specifically, the court contrasted Mother’s testimony that she had
never seen D.M.’s January 2022 letter and that she was unaware
of its contents with the video showing her reading the letter at the
sheriff’s office. The court also found that Mother had given
“different versions of her story of how [D.M.] wrote the letter and
how the letter was then mailed to the sheriff’s office.”
¶58 Addressing the January 2022 letter, the court found that
D.M. “first lied to the sheriff deputy and stated that he wrote the
letter without the help of his mother and rode himself to the post
office to mail the letter,” and the court opined that it “cannot find
any other reason for [D.M.] to lie about how the letter was written
and delivered to the post office other than [Mother] telling him to
do so.” The court found that “the allegations stated in the letter
were false and were contrived by [Mother] to cause harm to and
further alienate [Father] with his Children.”
¶59 The court then found that six grounds for termination had
been established: abuse, neglect, unfitness, failure to provide care,
20220774-CA 20 2023 UT App 122In re H.M.
token efforts, and “other.” As part of its unfitness analysis,
the court found that “[a]fter years of unsubstantiated
allegations of abuse against Father,” Mother “still fails to
show any real remorse for her actions and their consequences
on the Children. She simply testified that she ‘doesn’t know’
whether or not the Children have been or are being abused by”
Father. The court found that “[a]fter years of therapy and
services by DCFS, [Mother] refuses to take any responsibility
for her behavior.” The court concluded that Mother “has
shown that she cannot stop her destructive behavior
regarding false allegations and refuses to take any responsibility
regarding the Children’s statements to DCFS and law
enforcement.”
¶60 The court then determined it was in the Children’s best
interest to terminate Mother’s rights and that it was also strictly
necessary to do so. In its best interest determination, the court
found that Mother “is unable to accept any court order that does
not grant her primary care and custody of the children and will
distort facts and perceptions until it makes sense to her that she
should have custody.” The court found that Mother
has not demonstrated the ability to sustain progress
in treatment that shows that the Children would be
safe in her care. Her actions taken less than a month
after the protective supervision services case closed
demonstrates that she has not responded to the
extensive services provided to her. [Mother] has
shown that when she is not subject to the strict
oversight of DCFS and this Court, she reverts to
allegations of abuse against [Father].
¶61 Under a separate subheading devoted to the strictly
necessary determination, the court found it had “considered less-
restrictive alternatives than termination of [Mother’s] parental
rights” and that a “permanent custody and guardianship
20220774-CA 21 2023 UT App 122In re H.M.
arrangement is unworkable and not in the best interest of the
Children.” The court found that Mother “has made or caused to
be made a multitude of false allegations of physical and sexual
abuse against [Father] throughout a period [of] seven years,
causing the Children to be interviewed repeatedly and examined
and having their lives investigated.” The court further found that
“[a]ny contact” that Mother has with the Children “is likely to
result in an additional false allegation, necessitating additional
investigation, interviews, etc., all to the serious detriment of the
Children.” Finally, the court found that even when it “ordered
[Mother] to be restricted to supervised visits by DCFS with the
children, [Mother] absconded with the children. The Court cannot
perceive a less-restrictive alternative which would protect the
Children from further trauma without terminating [Mother’s]
parental rights.”
ISSUES AND STANDARDS OF REVIEW
¶62 Mother challenges the termination order on two
primary grounds. First, she argues that in its best interest
analysis, the juvenile court “failed to consider all the facts” and
improperly relied on past events rather than engaging in a
present-tense inquiry. Second, she argues that the court “did
not make findings as to why supervised visitation was not
feasible.”
¶63 This court applies “differing standards of review to
findings of fact, conclusions of law, and determinations of mixed
questions of law and fact.” In re E.R., 2021 UT 36, ¶ 14, 496 P.3d
58. “A best interest determination involves neither a pure finding
of fact nor an abstract conclusion of law. This is a mixed
determination of law and fact—in which the abstract law is
applied to a given set of facts.” Id. ¶ 17. “The juvenile court’s
decision can be overturned only if it either failed to consider all of
the facts or considered all of the facts and its decision was
20220774-CA 22 2023 UT App 122In re H.M.
nonetheless against the clear weight of the evidence.” Id. ¶ 31
(quotation simplified). 2
ANALYSIS
¶64 The Utah legislature has determined that “[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 § 80-4-104(8). In light of this, a
“juvenile court should only transfer custody of a child from the
child’s natural parent for compelling reasons and when there is a
jurisdictional basis to do so.” Id. “When the [juvenile] court
considers a child’s welfare and best interest, the court’s focus
should be firmly fixed on finding the outcome that best secures
the child’s well-being.” In re B.T.B., 2020 UT 60, ¶ 64, 472 P.3d 827.
¶65 To terminate a parent’s rights, a court must find that (1) a
statutory ground for termination exists and (2) termination is in
the child’s best interest. See id. ¶¶ 19–20. With one minor
exception that we address below in Part III, Mother’s appeal does
not challenge the court’s determination that there were grounds
to terminate her parental rights. Rather, Mother’s appeal is
focused on the best interest portion of the court’s ruling.
¶66 “The best-interest inquiry is wide-ranging and asks a court
to weigh the entirety of the circumstances of a child’s situation,
including the physical, intellectual, social, moral, and educational
training and general welfare and happiness of the child.” In re
J.J.W., 2022 UT App 116, ¶ 26, 520 P.3d 38 (quotation simplified).
By statute, a court can only find that termination is in the best
2. Mother also advances a few additional arguments relating to
the grounds for termination and the broader scope of the
allegations against her. These arguments are subject to this same
standard of review, and we address them together in Part III.
20220774-CA 23 2023 UT App 122In re H.M.
interest of a child if it also finds that “termination of parental
rights, from the child’s point of view, is strictly necessary.” Utah
Code § 80-4-301(1); accord In re B.T.B., 2020 UT 60, ¶ 66. The
“statutory language uses the verb ‘is,’ indicating that the best-
interest inquiry is to be undertaken in a present-tense fashion.” In
re Z.C.W., 2021 UT App 98, ¶ 13, 500 P.3d 94. Moreover, Utah law
presumes that “[i]t is in the best interest and welfare of a child to
be raised under the care and supervision of the child’s natural
parents.” Utah Code § 80-4-104(8). In light of this, a juvenile court
“must determine whether a feasible option short of imposing the
ultimate remedy of terminating the parent’s rights exists, and if it
does, the court must choose it.” In re K.Y., 2022 UT App 149, ¶ 34,
523 P.3d 1159 (quotation simplified).
¶67 As noted, Mother advances two main challenges to the
court’s ruling. First, Mother argues that the court did not
properly account for the present-tense best interest of the
Children, but that it instead improperly relied “on outdated
information.” And second, Mother argues that the court erred by
not determining on the record whether an order of ongoing
supervised visitation was a feasible non-termination option. We
reject both challenges.
I. Present-Tense Best Interest of the Children
¶68 Mother argues that the court’s conclusion that it was in the
best interest of the Children to terminate her parental rights was
“based on outdated information.” In Mother’s view, the court
failed to properly account for the fact “that between January 2022
and July 2022, Mother had supervised visits without incident.”
We disagree.
¶69 Again, it’s settled that “the best-interest inquiry is
to be undertaken in a present-tense fashion.” In re Z.C.W.,
2021 UT App 98, ¶ 13. “Because children inhabit dynamic
environments in which their needs and circumstances are
20220774-CA 24 2023 UT App 122In re H.M.
constantly evolving,” the best interest inquiry must “be
undertaken in a present-tense fashion, as of the date of the trial or
hearing held to decide the question.” In re A.H., 2022 UT App 114,
¶ 34, 518 P.3d 993 (quotation simplified), cert. granted, 525 P.3d
1279 (Utah 2023). “In a best-interest inquiry, the relevant question
is almost always this one: what outcome is in the child’s best
interest now?” In re Z.C.W., 2021 UT App 98, ¶ 12 (emphasis in
original).
¶70 The juvenile court’s order in this case was properly
couched in present-tense terms. In its findings on unfitness, for
example, the court found that Mother “still fails to show any real
remorse for her actions and their consequences on the children.”
(Emphasis added.) The court also found that Mother “has shown
that she cannot stop her destructive behavior regarding false
allegations and refuses to take any responsibility regarding the
children’s statements to DCFS and law enforcement.” (Emphases
added.) Then, in a subsection that was specifically directed at the
best interest determination, the court found that Mother’s “intent
and the effect of her actions is to disrupt any semblance of stability
the children might enjoy regarding [Father] while in his care,” and
it further found that Mother “is unable to accept any court order
that does not grant her primary care and custody of the children
and will distort facts and perceptions until it makes sense to her
that she should have custody.” (Emphases added.) And in
another subsection that was specifically devoted to the strictly
necessary determination, the court found that “any contact
[Mother] has with the children is likely to result in an additional
false allegation, necessitating additional investigation, interviews,
etc., all to the serious detriment of the children,” that “Mother has
not shown that she can stop the false allegations” against Father,
and that Mother “fails to even acknowledge that the allegations
are false or that she is in any way responsible for them.”
(Emphases added.) In these and other instances in the ruling, the
court made it clear that it was making a determination about the
present-tense best interest of the Children.
20220774-CA 25 2023 UT App 122In re H.M.
¶71 Given this, Mother’s argument is ultimately focused on the
alleged lack of evidentiary support for that conclusion. Mother
asserts that although the court’s ruling may have been written in
the present tense, the information that it relied on was so old or
stale that the court had no valid basis for concluding that
termination was in the Children’s present-tense best interest. We
disagree.
¶72 In virtually any decision that’s made in law or life,
questions about the present must in some measure be answered
through consideration of relevant events from the past. As
famously put by Faulkner, the “past is never dead. It’s not even
past.” William Faulkner, Requiem for a Nun 92 (1951).
¶73 Our cases have recognized as much in this very particular
legal context. Although it’s true that the best interest
determination is made in the present-tense, it’s also true that
“considering what a child’s best interest is at the time of trial does
not require ignoring historical patterns.” In re A.K., 2022 UT App
148, ¶ 8 n.3, 523 P.3d 1156 (quotation simplified), cert. denied, 527
P.3d 1106 (Utah 2023). Rather, “a juvenile court judge conducting
a best interests analysis must weigh evidence forecasting future
events in order to predict what course of action will best protect
and nurture the child.” In re C.L., 2007 UT 51, ¶ 22, 166 P.3d 608(quotation simplified). Since neither judges nor expert witnesses
are soothsayers, the evidence that a court would rely on to
“forecast[] future events” would naturally include evidence of
things that had happened in the past between the parent and the
children. In this sense, a court is tasked with “weigh[ing] a
parent’s past conduct with her present abilities” in order to make
the statutorily required determination. In re B.R., 2007 UT 82, ¶ 13,
171 P.3d 435.
¶74 Mother recognizes this, but she nevertheless argues that
there must be some point at which the evidence is too distant to
support a determination about a child’s present-tense best
20220774-CA 26 2023 UT App 122In re H.M.
interest. In concept, we agree. But in application, we disagree with
Mother’s suggestion that the evidence in this case was so remote
that it could not be relied on.
¶75 Mother first points out that much of the court’s ruling was
based on events that had occurred years before trial. And she’s
right—the court did make repeated reference to events that had
occurred years earlier. But even so, we think it significant that the
court was not focused on an isolated event or two that had
occurred in the far distant past. Rather, the court was focused on
a pattern of events that had unfolded over the course of several
years. As recounted at some length above, Mother began making
allegations of sexual and physical abuse against Father in 2015,
and she kept making such allegations over the course of the next
five years. Mother kept doing so despite the apparent lack of any
corroborating evidence. And she repeatedly encouraged her
young children to make allegations against Father as well, even
though this resulted in the Children being subject to repeated
interviews and even physical examinations, and she also did so
despite the transparently imaginative nature of some of the
allegations. 3 Given that the juvenile court’s inquiry in this case
was in some measure predictive, its focus on a pattern of behavior
that had extended over several years would of course have
probative value.
¶76 Even so, Mother points out that her behavior had
improved enough by the later months of 2021 to prompt the
juvenile court to close the protective supervision services case in
December 2021. But as the juvenile court stressed in its
termination order, within just a few weeks of that case being
closed, Mother encouraged D.M. to write a letter to law
3. As noted, the allegations included such things as an exploding
car, Father allegedly punching a child in the bottom with a
hammer, and Father somehow assaulting and even breaking a
child’s neck in the middle of a church service.
20220774-CA 27 2023 UT App 122In re H.M.
enforcement with yet another allegation of abuse, Mother lied to
authorities when questioned about her involvement in that letter,
and Mother publicly accused Father of attempting to kidnap the
Children during a confrontation at a school (and she did so in
front of other children, no less). These events certainly gave the
court some basis for reassessing its conclusion from December
2021 that Mother’s pattern of troubling behavior had come to an
end.
¶77 This leads to Mother’s final assertion, which is that the
January 2022 events could not support the termination order that
was entered in July 2022 because no further incidents occurred
during the January-to-July interim. As an initial matter, we have
some skepticism about Mother’s suggestion that events that
occurred five months before trial are indeed so remote that they
could not inform the court’s present-tense best interest
determination. And our skepticism of this argument is
particularly warranted here, where the events that occurred in
January 2022 are consistent with a prior pattern of events that had
stretched out over the course of several years. After all, even
during the 2015 through 2020 period, there were several stretches
of several months in which Mother didn’t make any allegations.
Yet each time, the period of dormancy was later interrupted by
new allegations of abuse.
¶78 But more importantly, we disagree with Mother’s
suggestion that nothing of note had occurred in the January-to-
July interim. In reviewing the juvenile court’s termination
decision, two things stand out.
¶79 First, at the time of the July trial, the court now had access
to new information (primarily from Therapist) about the harm
that Mother’s long-term behavior had inflicted on the Children.
On January 24, 2022, Therapist wrote that D.M. reported “feeling
very confused because [Father] never did that stuff” but that D.M.
did not want to disappoint Mother. Therapist said D.M. felt “sort
20220774-CA 28 2023 UT App 122In re H.M.
of unsafe” because of the events surrounding the January 2022
letter and “all the question asking.” And Therapist also said that
H.M. reported feeling “tired of all the asking stuff” with Mother
and that H.M. thought that life felt “sad and mad and scary” as a
result. In a June 2022 letter, Therapist then informed the court that
after a March 2022 visit with Mother, H.M. told her that he “didn’t
like it and it didn’t feel safe.” She said that H.M. told her that “it
sort of made [his] stomach hurt and like maybe she was going to
take [him] again.”
¶80 Therapist’s testimony at trial gave the court even more
insight into these harms. Therapist testified that D.M. was tearful
in his January 2022 session and that he was “wrestling with
himself because he had lied during some of [the interviews]
because he felt like that was the right thing to do for [Mother].”
Therapist testified that D.M. was “having a lot of shame towards
himself” and that D.M. had told her he felt like he had “to say that
these things have happened in order to make [Mother] happy.”
Therapist also testified that after the January 2022 incidents, H.M.
was “very, very vocal about not wanting to do the visits” with
Mother. She testified that H.M. told her that “[m]y mom just—she
comes at me and comes at me. I don’t want to go. I don’t want to
deal with it.” She further testified that H.M.’s “exact words” to
her were, “How would you feel if this were always happening to
you? I just want a normal life.”
¶81 The court didn’t have this information when it closed the
case in December 2021, but it did have this information at trial.
And this information could properly inform any decision about
what was in the best interest of the Children moving forward.
¶82 Second, the court also had new information about Mother’s
mindset. In its order, the court found that Mother’s trial testimony
“was not credible and at times was simply untruthful.” For
example, the court noted that Mother testified twice that she was
seeing D.M.’s January 2022 letter for the first time in the
20220774-CA 29 2023 UT App 122In re H.M.
courtroom, even though a video of an earlier interview with
law enforcement showed Mother reading that letter then. The
court also highlighted Mother’s contrasting stories about how
D.M. had written the letter. And the court further determined
that Mother’s “statements that she has no opinion on whether
she believes” that Father abused the Children were “not
credible[,] taking into account the history of her actions in this
matter.”
¶83 Based in part on Mother’s July 2022 trial testimony, the
court found that Mother “still fails to show any real remorse for
her actions and their consequences on the Children.” And the
court found that although Mother “believes it improves her
standing to now say that she ‘doesn’t know’ or has no opinion on
whether or not the Children have been abused,” she “continues to
deny responsibility for the continuous harm of false allegations.”
Mother’s testimony and the court’s observations of her mindset
were, of course, new information. And this new information
would have some proper bearing on the court’s assessment of
whether it was presently in the Children’s best interest to
terminate Mother’s parental rights.
¶84 Pushing back, Mother points to some contrary evidence
showing that there had been some improvement in her
relationship with the Children. For example, Lead Caseworker
testified that while H.M. initially showed some hesitancy at the
visits, by the time of trial he would “sit in mom’s lap now where
he wouldn’t do that before. You know, he’ll hug her. Things like
that.” Lead Caseworker also testified that “D.M. is very good with
his mom. I mean, it seems like they like to play together. And they
just have fun when he’s there.” And at trial, Lead Caseworker said
that she could not remember any time since January 2022 that the
Children expressed to her “any concerns or anxiety about contact
with their mom.” Also, minutes from a March 2022 hearing
indicate that Mother had “been appropriate on her visits.” And in
a DCFS Progress Report written a month before trial, D.M.
20220774-CA 30 2023 UT App 122In re H.M.
“report[ed] that he wants the visits to last longer and [H.M.] asked
to have the visits in [Mother’s] house.”
¶85 But again, a “juvenile court’s decision can be overturned
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, ¶ 31, 496 P.3d 58(quotation simplified). Here:
• The events that occurred from 2015 through 2020
gave the court ample reason to find that Mother had
a long-term and persistent desire to make
allegations of abuse against Father, that she was
willing to directly involve the Children in those
efforts, and that she was willing to ignore court
orders (such as those she ignored when absconding
with the Children on two occasions in 2020).
• The events of January 2022 and Mother’s non-
remorseful testimony at trial gave the court reason
to believe that Mother’s good behavior in late 2021
had been temporary, rather than permanent, and
that Mother still persisted in her beliefs about Father
and her willingness to manipulate the Children or
court processes to support her views.
• And the new evidence that the court received
leading up to trial and then at trial gave it additional
information about the harm that was being done to
the Children by Mother’s behavior.
¶86 In short, the court was tasked with making a present-tense
determination, and its decision reflects that it did. In making that
determination, the court could properly consider past and present
events together. Although the court had concluded in December
2021 that the protective supervision case should be closed, more
recent events had given the court reason to reassess its
20220774-CA 31 2023 UT App 122In re H.M.
conclusions about Mother’s ongoing danger to the Children.
Given the evidence that was before the court at trial, we see no
basis for concluding that the court’s decision was improperly
based on stale evidence. We therefore reject this argument.
II. Supervised Visitation
¶87 A court may only terminate a parent’s rights if it finds that
termination is in the child’s best interest and that “termination of
parental rights, from the child’s point of view, is strictly
necessary.” Utah Code § 80-4-301(1). “The strictly necessary
language is designed to ensure that the court pause long enough
to thoughtfully consider the range of available options that could
promote the child’s welfare and best interest.” In re B.T.B., 2020
UT 60, ¶ 69. “If the child can be equally protected and benefited
by an option other than termination, termination is not strictly
necessary” and “the court cannot order the parent’s rights
terminated.” Id. ¶ 66. Moreover, when a juvenile court is
presented with a readily apparent non-termination option, the
court must “state, on the record, its reasons for rejecting feasible
alternatives.” In re K.Y., 2022 UT App 149, ¶ 43 (quotation
simplified). This “leaves no room for implicit rejection.” Id.(quotation simplified).
¶88 As noted, the court heard both evidence and argument
suggesting that supervised visitation was not a viable solution
moving forward. Therapist testified that although DCFS “may
have talked about the possibility of supervised visitation,” “that’s
not really along the normal, natural developmental means, and so
I didn’t feel like that was the best option.” And in closing
argument, the GAL argued that “[s]upervising visits for the rest
of these children’s childhood is not feasible, it’s not in their best
interest, it’s not appropriate.” As also noted, the juvenile court
then made a series of findings about why it was strictly necessary
to terminate Mother’s parental rights. Despite these findings,
Mother argues that the juvenile court “erred as a matter of law
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when it did not make findings as to why supervised visitation”
was not a feasible alternative to termination. We disagree with
Mother’s claim that the ruling was lacking in this respect.
¶89 The cases in which we’ve found that a court erred by not
addressing a feasible alternative have involved termination
orders that were far less clear than the one at issue here. In In re
K.Y., for example, the court’s best interest analysis was just two
paragraphs long. See 2022 UT App 149, ¶ 28. After the State
asserted on appeal that the juvenile court had at least “implicitly”
rejected a potential guardianship within those two paragraphs, id.
¶ 42, we rejected that assertion, explaining that it was unclear to
us “which conclusion” the court would have even reached about
a potential guardianship, id. ¶ 44. The order at issue in In re J.J.W.
had similar infirmities. There, “the court’s best-interest analysis
consisted of a single paragraph.” 2022 UT App 116, ¶ 16. And
while we agreed that the court had “by necessity” implicitly
rejected guardianship as an option, id. ¶ 32, we still reversed
because we still saw no explanation for why the court thought that
guardianship was not a viable option, id. ¶ 35.
¶90 The ruling at issue in this case is decidedly different. The
court devoted nearly three pages of analysis to the best interest
inquiry alone, and it then devoted an additional page and a half
to the strictly necessary determination. In addition, the ruling as
a whole spans over 40 pages, and many of the court’s findings and
conclusions from the other sections were interconnected and had
obvious bearing on the best interest and strictly necessary
determinations. Thus, unlike the orders at issue in prior cases
where we’ve found this kind of error, the court here issued a
detailed order that gave clear insight into its thinking about the
relevant questions.
¶91 This leads to the question of whether the court’s ruling left
any room for ongoing supervised visits as a non-termination
option. Here, the subsection on the strictly necessary
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determination began with the court’s declaration that it “ha[d]
considered less-restrictive alternatives than termination of
[Mother’s] parental rights” and its conclusion that a “permanent
custody and guardianship arrangement is unworkable and not in
the best interest of the Children.” Under the same subheading, the
court recounted the incidents in which Mother had previously
absconded with the Children. The court specifically highlighted
the fact that the second absconding incident had occurred when
Mother “abducted the children from a division-supervised visit at
the Division’s offices in July 2020.” The court then stressed that
“[e]ven when the Court ordered the mother to be restricted to
supervised visits by DCFS with the children, mother absconded
with the children.” With this as something of a springboard, the
very next sentence read, “The Court cannot perceive a less-
restrictive alternative which would protect the children from
further trauma without terminating mother’s parental rights.”
The court’s focus was thus explicit and clear: the court had
concluded that the only way to protect the Children from Mother
inflicting “further trauma” on them by absconding with them
again was to terminate her parental rights.
¶92 Mother nevertheless stresses that she had not absconded
with the Children recently, and in light of this, she suggests that
it’s unclear why, or perhaps even whether, the court was ruling
out supervised visits as a viable option moving forward. But in
cases such as In re K.Y. or In re J.J.W., we were left guessing at the
court’s ruling or rationale. Here, however, it requires no
guesswork to see that the court had indeed rejected ongoing
visitation as an option, nor is there any question about why the
court had done so. Again, in the subsection of its ruling that
addressed the best interest determination, the court found that
Mother “is unable to accept any court order that does not grant
her primary care and custody of the children and will distort facts
and perceptions until it makes sense to her that she should have
custody.” And in the subsection that more particularly addressed
the strictly necessary inquiry, the court found that “Mother has
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not shown that she can stop the false allegations against” Father
and that “[a]ny contact the mother has with the children is likely
to result in an additional false allegation, necessitating additional
investigation, interviews, etc., all to the serious detriment to the
children.”
¶93 This ruling thus foreclosed the possibility of ongoing
supervised visits as a viable alternative to termination. Taking the
court at its word, the court’s express finding that “any contact”
carried the risk of causing potential harm to the Children by
definition ruled out ongoing supervised visits. And the court’s
focus on the prior absconding events, coupled with its findings
about Mother’s current lack of remorse, collectively explained
why the court thought that even supervised visits would still
present an unacceptable risk—whether it be of Mother
absconding with the Children again or of using any visits (even
supervised ones) to raise new allegations of abuse against Father.
All of this is drawn directly from the court’s ruling.
¶94 In short, the juvenile court was sufficiently clear about its
finding that termination was in the best interest of the Children
and that termination was also strictly necessary, and the
rationales given by the court directly foreclosed ongoing
supervision as a feasible option. We see no basis for reversing the
decision.
III. Mother’s Additional Arguments
¶95 Mother briefly raises three additional issues on appeal. But
none of them warrant reversal.
A. Adoption
¶96 At the back end of the best interest section of its ruling, the
juvenile court found, “It is in the children’s best interests to
terminate the parental rights of [Mother] so they may be free from
abuse and neglect, so they may receive the proper safety,
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parenting, bonding, love, affection and stability they need, and so
they may be adopted where they are safe, secure and stable.”
Mother now argues that the court should not have relied on
adoption in its best interest analysis because “adoption by a
stepparent is wholly unnecessary” since “Father has sole
custody.”
¶97 Our best interest cases have suggested that a court should
not terminate a parent’s rights based on the “categorical concern”
that adoption provides more stability to children than some other
non-termination option. See, e.g., In re J.A.L., 2022 UT 12, ¶ 25, 506
P.3d 606. But we disagree with Mother’s suggestion that the
ruling here was categorical in nature. The court’s ruling was not
only extensive, but it was focused on particular findings of the
harm inflicted on the Children by Mother. We see no basis for
overturning the decision based on the court’s stray reference to
adoption in a single portion of the ruling.
B. “Piling On”
¶98 Mother also argues that the court “piled on its grounds
rulings by basing all six of its grounds-related findings on the
same ‘emotional abuse.’” Mother argues that this practice violated
“the spirit of the ‘grounds’ statutes, if not the letter,” because
“[p]iling on multiple grounds based on the same subset of facts
simply renders the additional ‘grounds’ superfluous.”
¶99 But Mother concedes that this practice “do[es] not
provide independent grounds for relief on appeal.” And while
Mother points to some caselaw from the attorney discipline
context that might suggest that it’s problematic to “pile on”
multiple overlapping charges, Mother provides no authority that
supports her view that a juvenile court cannot base a termination
decision on multiple grounds if the statutorily defined elements
of those multiple grounds have some or even substantial overlap.
We’re aware of no such authority either, and we therefore see no
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basis for overturning this ruling as a result of this alleged
problem.
C. Mandatory Reporting
¶100 Finally, Mother argues that “the court’s findings of
emotional abuse are not supported by Utah law, where parents
have both a right and a responsibility to report perceived abuse to
authorities.” In Mother’s view, the “court’s decision sets up a
scenario that fails to protect” children from “physical abuse and
instead deems them ‘emotionally abused’ if one parent reports
repeated, suspected abuse by the other.” Mother thus argues that
the “court’s decision faults” her “for protecting [the] Children as
she thought best.”
¶101 But the juvenile court’s extensive findings in this case leave
no room for the conclusion that Mother’s rights have been
terminated for anything like a good faith effort to protect the
Children. The juvenile court found, with ample support, that
Mother has engaged in a years-long campaign of filing
unsupported or false reports of abuse against Father, that Mother
has co-opted her children into being participants in this campaign
(despite the fact that doing so caused them to be subjected to
multiple police interviews and even physical examinations),
that Mother has defied court orders and absconded with her
children on two occasions, and that Mother lied to law
enforcement and the court during the course of official interviews
and proceedings.
¶102 We thus emphasize that a parent’s rights should not be
terminated for making a good faith report of suspected abuse. But
we likewise emphasize that nothing like that happened here.
Rather, under the terms of the court’s order, Mother’s rights were
terminated because of her years-long pattern of abusive behavior
toward her children, not because of a good faith attempt to protect
them.
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CONCLUSION
¶103 The juvenile court did not err in relying on past events to
support its present-tense best interest analysis, nor did it fail to
account for the possibility of ordering ongoing supervised visits
in its strictly necessary determination. Its decision to terminate
Mother’s parental rights is accordingly affirmed.
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