In re C.C.W.

2019 UT App 34
THE UTAH COURT OF APPEALS
I N THE INTEREST OF C.C.W. AND Z.C.W.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
R.D.T. AND G UARDIAN AD LITEM ,
Appellants,
v.
C.L.W.,
Appellee.
Opinion
No. 20170360-CA
Filed March 7, 2019
Third District Juvenile Court, West Jordan Department
The Honorable Renee M. Jimenez
No. 1135445
Troy L. Booher, Julie J. Nelson, Erin B. Hull, and
Shane A. Marx, Attorneys for Appellant R.D.T.
Martha Pierce, Attorney for Appellant
Guardian ad Litem
David Pedrazas, Attorney for Appellee
JUDGES R YAN M. HARRIS and M ICHELE M. C HRISTIANSEN F ORSTER
jointly authored this Opinion. JUDGE GREGORY K. O RME
concurred in the result.
HARRIS and CHRISTIANSEN FORSTER, Judges:
¶1 	R.D.T. (Mother) petitioned the juvenile court to terminate
the parental rights of her ex-husband, C.L.W. (Father), as to their
children, C.C.W. and Z.C.W. (collectively, the Children). After
Mother presented her case-in-chief, Father asked the court to
dismiss Mother’s petition. The court granted the motion on the
ground that—although Father had abandoned the Children and

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20170360-CA 	2 	2019 UT App 34
had twice been incarcerated for violently attacking Mother and,
later, another woman—it was not in the Children’s best interest
to terminate Father’s parental rights. Mother and the Guardian
ad Litem (the GAL) appeal, contending that the court misapplied
the law to the facts. In one significant respect, we agree, and
therefore vacate the juvenile court’s determination and remand
for further proceedings consistent with this opinion.
BACKGROUND
¶2 	Mother and Father married in September 2005. Z.C.W.
was born in August 2006 and C.C.W. in January 2009. Shortly
after C.C.W. was born, and when Z.C.W. was three years old,
Father brutally attacked Mother and threatened to kill her at
gunpoint 	after 	the 	two 	had 	an 	argument 	about 	Father’s
infidelity. Father was charged with aggravated kidnapping and
two counts of aggravated assault, and ultimately pled guilty to
kidnapping and aggravated assault. The court presiding over his
criminal 	case 	sentenced 	him 	to 	prison, 	where 	he 	was
incarcerated from April 2010 to March 2013.
¶3 	While Father was incarcerated, Mother filed for divorce,
and a divorce decree was entered in 2010 that awarded Mother
sole physical custody of the Children. Mother and Father have
each remarried thereafter.
¶4 	In 2014, one year after his release from prison, Father
violated his parole by leaving the state, attacked another woman
in Missouri, and later pled guilty to domestic assault. For this
crime, 	he 	was 	incarcerated 	in 	Missouri 	from 	May 	2014 	to
December 2016.
¶5 	In October 2016, just before Father was released from
prison for the second time, Mother petitioned the juvenile court
to terminate Father’s parental rights. Mother filed the petition
because 	she 	believed, 	among 	other 	things, 	that 	Father 	had

In re C.C.W.
20170360-CA 	3 	2019 UT App 34
abandoned 	the 	Children, 	and 	because 	she 	believed 	that
reintroducing 	Father 	into 	the 	Children’s 	lives 	would 	be
disruptive and potentially violent. The case proceeded to trial.
¶6 	After Mother presented her case-in-chief, but before he
put on any evidence of his own, Father asked the court to
dismiss Mother’s petition. The juvenile court granted Father’s
motion and entered findings of fact and conclusions of law,
wherein it found that Father had abandoned the Children but
that Mother had not shown that it was in the Children’s best
interest to terminate Father’s parental rights.
¶7 	The juvenile court first found that there were grounds for
termination because Father did not attempt to communicate at
all 	with 	the 	Children 	beginning 	in 	2012, 	during 	his 	first
incarceration, 	and 	through 	2016 	when 	Mother 	filed 	her
termination petition. Significantly, Father did not attempt to
communicate with the Children during the year between his two
terms of incarceration, even though an order of therapeutic
reintroduction 	had 	been 	entered 	to 	reestablish 	Father’s
relationship with the Children. The court found that, rather than
take advantage of this opportunity, Father left the state, violated
his parole, and committed another assault. As a result of Father’s
neglect of his parental responsibilities, the court found that he
destroyed the parent-child relationship. Accordingly, the court
found that Father had abandoned the Children.
¶8 	The court also found that Mother’s testimony regarding
Father’s 	attack 	on 	her 	was 	credible. 	In 	the 	court’s 	words,
“Father’s crimes were extremely violent, and they caused his
victims, 	[Mother] 	in 	particular, 	unthinkable 	physical 	and
emotional injuries.”1 Notwithstanding this determination, the
1. While the juvenile court’s finding is accurate, it lacks detail
and uses relative terms. Mother’s testimony regarding the attack,
credited by the juvenile court, bears fuller explication. The attack
(continued…)

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20170360-CA 	4 	2019 UT App 34
court found that Father’s history of violence toward women did
not make him an unfit parent because those acts were against
adults, not children. In particular, the juvenile court stated that,
while Father’s “crimes may have made him a terrible husband,
. . . 	assaulting 	your 	spouse 	or 	another 	person[] 	does 	not
necessarily mean that you are unable to fulfill your duties as a
parent.” 	The 	court 	found 	it 	significant 	that 	“[t]here 	is 	no
evidence that [Father] is an inherently violent person or that he
has been violent with his own or other children.”
¶9 	Having found that there were grounds for termination—
namely, 	abandonment—the 	court 	began 	its 	best-interest
analysis. The court found that under Mother’s care, the Children
were good students, excelled in extracurricular activities, and
enjoyed “security and stability.” Somewhat contradictorily, the
court 	then 	stated 	that 	Mother 	“has 	not 	necessarily 	had
consistently stable relationships in her own life which [h]as
resulted in some instability or inconsistency in the [C]hildren’s
lives.” The court added that the Children “have experienced a
changing landscape of parental figures during their entire lives,
(…continued)
lasted over two hours, during which Father (1) grabbed Mother
by the neck and threw her against a wall “from one place to the
other,” denting the sheetrock; (2) repeatedly choked Mother to
the point that she could not breathe, causing her to gasp for air
and briefly lose consciousness; (3) ordered her to the basement,
where he interrogated her at gunpoint; (4) punched, slapped,
and hit Mother in the face and head with a gun; (5) threatened to
kill Mother with the gun; (6) smothered Mother’s face in a
pillow, causing Mother to gasp for air, and pressed the gun
against the pillow and asked, “Now that you think you’re going
to die, are you finally going to tell me the truth?”; and (7) after
leaving the house in a car with Mother to take formula and
diapers to Mother’s parents who were watching the Children,
threatened to kill Mother if she left the car.

In re C.C.W.
20170360-CA 	5 	2019 UT App 34
and two of these significant changes have nothing to do with
[Father].” The court stressed that, at the time, there was no plan
for Mother’s current spouse to adopt the Children, and therefore
“there is no other individual, step-parent or otherwise, available
to take over that legal parental role.” However, the court also
found 	that 	Mother’s 	spouse 	was 	“developing 	a 	parent
relationship” with the Children.
¶10 	The court found that the Children have not asked about
Father and “have no information” about him. But the court
expressed its view that “Father’s circumstances are different
now.” Although Father suffers from post-traumatic stress and
bipolar disorders, he “obtained treatment for his mental health
needs while incarcerated and he currently receives therapy and
medication 	management” 	through 	the 	federal 	government’s
Department 	of 	Veterans 	Affairs. 	Since 	being 	released 	from
prison, 	Father 	has 	been 	“a 	coach 	and 	a 	mentor 	to 	other
children.” Father now resides with his second wife and two
stepchildren. He has also maintained contact with his older
daughter 	who 	is 	the 	Children’s 	half-sister 	and 	whom 	the
Children know. The court stressed that Father “does not have
the ability to ever assume full custody of the [C]hildren,” that he
is willing to participate in reunification services, and that he
“desires the opportunity to provide love, support and guidance
to the [C]hildren.” The court specifically found that, if the
reunification process were “done properly, Father could be a
positive person in the [C]hildren’s lives . . . . There are adequate
and protective measures built into the reunification process that
take 	into 	consideration 	the 	[C]hildren’s 	needs.” 	The 	court
concluded that “[t]here is insufficient evidence that [Father]
exercising 	parent-time 	with 	the 	[C]hildren 	would 	cause
significant harm or risk of harm to the [C]hildren’s physical,
mental or emotional well-being.”
¶11 	Also, during 	its best-interest determination, the court
found it significant that the Children might be eligible to receive
support payments from the federal government as a result of

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20170360-CA 	6 	2019 UT App 34
Father’s military service. While Father was incarcerated, Mother
was able to apply for an apportionment of his benefits to be used
as support for the Children. During Father’s incarcerations, the
Children obtained approximately $38,000 in support. The court
found that these payments amounted to child support.
¶12 	After considering all of its findings, the court concluded
that there were no “compelling reasons to terminate [Father’s]
parental 	rights 	and 	that 	it 	[was] 	not 	strictly 	necessary 	to
terminate [Father’s] parental rights.”
ISSUE AND STANDARD OF REVIEW
¶13 	Mother and the GAL contend that the juvenile court erred
in granting Father’s motion to dismiss, asserting that Mother
presented clear and convincing evidence that Father’s parental
rights should be terminated. A court may grant such a motion “if
(1) the claimant has failed to introduce sufficient evidence to
establish a prima facie case, or (2) the trial court is not persuaded
by that evidence.” In re J.A., 2018 UT App 29, ¶ 26, 424 P.3d 913
(quotation simplified).2
2. At the time he made his motion, Father cited rule 41(b) of the
Utah Rules of Civil Procedure. A previous version of that rule
stated that, “[i]n a bench trial, after the plaintiff ‘has completed
the presentation of [her] evidence, the defendant . . . may move
for dismissal on the ground that upon the facts and the law the
plaintiff has shown no right to relief.’” See In re J.A., 2018 UT
App 29, ¶ 26, 424 P.3d 913 (quoting the 2015 version of rule 41 of
the Utah Rules of Civil Procedure). As we noted in In re J.A., rule
41(b) was amended in 2016, and now speaks only of motions to
dismiss for failure to prosecute. Id. ¶ 26 n.4; see also Utah R. Civ.
P. 41(b). Under the current version of the rules, it is rule 52(e) of
the Utah Rules of Civil Procedure that allows a party to move for
(continued…)

In re C.C.W.
20170360-CA 	7 	2019 UT App 34
¶14 	In this case, although the juvenile court determined that
statutory grounds existed to terminate Father’s parental rights,
the court granted Father’s motion on best-interest grounds,
concluding that the evidence Mother presented in her case-in-
chief did not provide “compelling reasons” to terminate Father’s
rights. Because termination decisions “rely heavily on the [trial]
court’s assessment and weighing of the facts in any given case,”
its decision “should be afforded a high degree of deference.”
In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435. For us “to overturn the
[trial] court’s decision the result must be against the clear weight
of the evidence or leave [us] with a firm and definite conviction
that a mistake has been made.” Id. (quotation simplified).
ANALYSIS
¶15 	Mother and the GAL contend that the juvenile court
misapplied the law to the facts. While expressing no opinion on
the ultimate decision to be made in this case, we agree that the
juvenile court’s analysis was materially flawed and that remand
is therefore required.
¶16 	Under 	Utah 	law, 	before 	terminating 	a 	parent-child
relationship, a court must find (1) that there are grounds for
termination and (2) that terminating parental rights is in the
child’s best interest. Utah Code Ann. § 78A-6-506(3) (LexisNexis
(…continued)
dismissal at the close of the other side’s evidence. See Utah R.
Civ. P. 52(e); see also id. advisory committee note (stating that
“the 2016 amendments move a provision found in Rule 41(b) to
this rule”). In this case, the parties and the juvenile court appear
to have been applying the 2015 version of the rules in making
and adjudicating the motions at issue. But in any event, the
standard of review is the same, regardless of whether the motion
is grounded in rule 41(b) or rule 52(e).

In re C.C.W.
20170360-CA 	8 	2019 UT App 34
2018). There is no dispute that the juvenile court properly found
that, as a result of Father’s abandonment of the Children, there
were grounds for termination. The dispute solely concerns the
court’s best-interest analysis.
¶17 	Mother first argues that it “is well settled” that where
grounds 	for 	termination 	are 	established, 	it 	is 	“almost
automatically” in the child’s best interest to terminate parental
rights. 	Because 	the 	juvenile 	court 	found 	that 	Father 	had
abandoned the Children, she asserts that the court should have
automatically 	concluded 	that 	it 	was 	in 	the 	Children’s 	best
interest to terminate Father’s parental rights.
¶18 	We have indeed previously stated that “where grounds
for termination are established, the conclusion that termination
will be in a child’s best interest follows almost automatically.” In re
G.J.C., 2016 UT App 147, ¶ 25, 379 P.3d 58 (emphasis added)
(quotation simplified), abrogated by In re B.T.B., 2018 UT App 157.
But, as we recently concluded in In re B.T.B., our “almost
automatically” line of cases was not supported by statutory
language or Utah Supreme Court case law, and we disavowed
all of our cases that had relied upon the concept. 2018 UT App
157, ¶ 44 & n.12.3 We noted that the “almost automatically”
characterization had gone too far, and that the “‘best interest’
inquiry requires courts to examine all of the relevant facts and
circumstances surrounding the child’s situation, not just the
specific 	statutory 	grounds 	for 	termination.” 	Id. 	¶ 55. 	We
therefore determined that “the ‘best interest’ inquiry should be
applied in a more thorough and independent manner than some
3. The briefing and argument in this case took place prior to the
issuance of our opinion in In re B.T.B., 2018 UT App 157. After
that opinion issued, the GAL filed a motion (which Mother
joined) for “emergency relief” asking us to stay proceedings in
this case “pending resolution” of petitions for rehearing in In re
B.T.B. We decline that invitation, and hereby deny the motion.

In re C.C.W.
20170360-CA 	9 	2019 UT App 34
of our cases might suggest.” Id. ¶ 2. We therefore reject Mother’s
contention 	that, 	after 	determining 	there 	were 	grounds 	for
termination, 	the 	juvenile 	court 	should 	have 	automatically
concluded that it was in the Children’s best interests to terminate
Father’s parental rights.
¶19 	It does not follow, however, that Mother’s appeal is
unsuccessful. In particular, we are troubled by the juvenile
court’s 	treatment 	of 	Father’s 	history 	of 	domestic 	violence.
Although it recognized that “Father’s crimes were extremely
violent, and they caused his victims, [Mother] in particular,
unthinkable physical and emotional injuries,” the juvenile court
concluded that “assaulting your spouse or another person[] does
not necessarily mean that you are unable to fulfill your duties as
a parent,” and that “when assessing the issue of unfitness to
parent . . . the focus is on the parent’s interactions with children”
rather than on the parent’s interactions with other adults.4 While
4. In the context of assessing the severity of Father’s violent acts
toward Mother, the juvenile court also mentioned that, after
Father assaulted Mother, Father “continued to reside in the
family home with” Mother and the Children for another few
weeks, and that even after their separation, Father and Mother
“continued in a sexual and/or romantic relationship” for a while,
and noted that “[a]t no time” during this period did Mother
“prohibit [Father] from taking the [C]hildren” or “seek a child
protective order prohibiting” Father from exercising parent-time.
We caution trial courts to avoid unnecessarily drawing negative
inferences 	from 	a 	battered 	spouse’s 	decision 	to 	maintain 	a
relationship 	with 	the 	batterer, 	or 	from 	a 	battered 	spouse’s
decision to decline to immediately seek help. In many instances,
victims of domestic violence stay in abusive relationships, at
least for a time, because they may not feel like they have any
other option, or because they may feel they are at least partly to
blame for the violence. See Mary Ann Dutton, Understanding
Women’s Responses to Domestic Violence: A Redefinition of Battered
(continued…)

In re C.C.W.
20170360-CA 	10 	2019 UT App 34
it is true that a history of domestic violence does not necessarily
lead to parental termination in every case, we nevertheless find
the 	juvenile 	court’s 	statements 	problematic, 	and 	emphasize
that—even 	where 	there 	is 	no 	evidence 	of 	violence 	toward
children—it 	is 	inappropriate 	to 	completely 	separate 	or
compartmentalize a parent’s history of domestic violence toward
other 	adults 	from 	the 	best-interest 	inquiry 	regarding 	that
parent’s child.5
(…continued)
Woman Syndrome, 21 Hofstra L. Rev. 1191 (1993); Martha R.
Mahoney, Legal Images of Battered Women: Redefining the Issue of
Separation, 90 Mich. L. Rev. 1, 6 (1991).
5. We recognize that the juvenile court made these comments in
the context of analyzing whether Father was “unfit” to parent
the 	Children, 	which 	is 	one 	of 	the 	statutory 	grounds 	for
termination, 	Utah 	Code 	Ann. 	§ 	78A-6-507(1)(c) 	(LexisNexis
2018), 	rather 	than 	in 	the 	context 	of 	analyzing 	whether
termination 	of 	Father’s 	parental 	rights 	would 	be 	in 	the
Children’s best interest. The juvenile court was incorrect in
refusing 	to 	take 	Father’s 	history 	of 	domestic 	violence 	into
account 	when 	considering 	Father’s 	fitness 	to 	parent 	the
Children, because our legislature expressly requires courts to
consider 	a 	parent’s 	“history 	of 	violent 	behavior” 	against
anyone—not just children—in assessing a parent’s fitness. See id.
§ 78A-6-508(2)(f) (mandating that, “[i]n determining whether a
parent . . . [is] unfit . . . the court shall consider . . . [the parent’s]
history of violent behavior”); see also, e.g., In re A.C.M., 2009 UT
30, ¶ 27, 221 P.3d 185 (affirming a juvenile court’s decision to
take into account a parent’s violence toward his “domestic
partner[s],” even though there was no evidence of violence
toward children); In re K.C., 2014 UT App 8, ¶ 4, 318 P.3d 1195
(per curiam) (affirming a juvenile court’s decision to take into
account a parent’s commission of “domestic violence in the
(continued…)

In re C.C.W.
20170360-CA 	11 	2019 UT App 34
¶20 	Such compartmentalization conflicts with the statutory
view that a history of violent behavior has relevance, especially
when committed against “the other parent of the child.” See Utah
Code Ann. § 78A-6-316(2)(iv); cf. id. § 76-5-109.1 (criminalizing
actions of domestic violence committed “in the presence of a
child,” even if the child is not the direct victim). And both
common sense and expert opinion indicate that a parent’s acts of
domestic violence can have adverse impacts on a child, even if
that child is not the direct object of such violence, and even if the
child does not directly witness the violence. See Winston J. v. State
Dep’t of Health & Social Services, Office of Children’s Services, 134
P.3d 343, 348 (Alaska 2006) (concluding that a father’s acts of
domestic violence against his children’s mother, coupled with
his 	history 	of 	violence 	against 	other 	women, 	created 	a
substantial risk of harm even though the children had not yet
been born when the acts occurred); In re V.V., 349 S.W.3d 548,
555 (Tex. Ct. App. 2010) (en banc) (concluding that a parent’s
history of domestic violence, even if not directed at his child,
provided 	support 	for 	the 	trial 	court’s 	termination 	decision
because this conduct placed his child in jeopardy); Marjory D.
Fields, The Impact of Spouse Abuse on Children and Its Relevance in
Custody and Visitation Decisions in New York State, 3 Cornell J.L.
& Pub. Pol’y 221, 228 (1994) (“Studies show that violence by one
parent against another harms children even if they do not
(…continued)
presence of the children,” even though no mention was made of
violence toward the children themselves). But in addition, for the
reasons 	we 	explain 	herein, 	a 	parent’s 	history 	of 	domestic
violence, even against other adults, is a factor that the court
should consider as part of the “best interest” analysis, even if
that history might also be relevant to one or more of the
statutory grounds for termination. Cf., e.g., In re B.T.B., 2018 UT
App 157, ¶ 55 (stating that “[t]he ‘best interest’ inquiry requires
courts to examine all of the relevant facts and circumstances
surrounding the child’s situation”).

In re C.C.W.
20170360-CA 	12 	2019 UT App 34
witness 	it.”). 	Indeed, 	numerous 	studies 	clearly 	show 	that
violence directed at a parent—even where not directed at the
children—can have a significant impact on the abused parent’s
children, especially when the abused parent is the children’s
primary 	caretaker. 	See 	Michal 	Gilad, 	Abraham 	Gutman
& Stephen P. Chawaga, The Snowball Effect of Crime and Violence:
Measuring the Triple-C Impact, 46 Fordham Urb. L.J. 1, 4, 9–10
(2019); Karen Czapanskiy, Domestic Violence, The Family, and the
Lawyering Process: Lessons from Studies on Gender Bias in the
Courts, 27 Fam. L.Q. 247 (1993); see also Naomi R. Cahn, Civil
Images of Battered Women: The Impact of Domestic Violence on Child
Custody Decisions, 44 Vand. L. Rev. 1041, 1055–56 (1991) (stating
that, “even if they are not physically harmed, children suffer
enormously from simply witnessing the violence between their
parents,” and that “children of abusive fathers are likely to be
physically abused themselves”). These notions are not new;
more than three decades ago, health professionals were making
efforts 	to 	tell 	judges about 	the 	potential 	impact 	a 	parent’s
domestic violence could have on children, emphasizing that
children who are exposed to abuse may be taught that violence
is an acceptable way to handle issues with loved ones:
Children learn several lessons in witnessing the
abuse of one of their parents. First, they learn that
such behavior appears to be approved by their
most important role models and that the violence
toward a loved one is acceptable. Children also fail
to grasp the full range of negative consequences for
the violent behavior and observe, instead, the short
term reinforcements, namely compliance by the
victim. Thus, they learn the use of coercive power
and violence as a way to influence loved ones
without being exposed to other more constructive
alternatives.
. . . .

In re C.C.W.
20170360-CA 	13 	2019 UT App 34
Spouse abuse results not only in direct physical
and psychological injuries to the children, but, of
greatest long-term importance, it breeds a culture
of violence in future generations. Up to 80 percent
of 	men 	who 	abuse 	their 	wives 	witnessed 	or
experienced abuse in their family of origin. Abused
children are at great risk of becoming abusive
parents.
Patricia Ann S. v. James Daniel S., 435 S.E.2d 6, 18 (W. Va. 1993)
(Workman, C.J., dissenting) (quoting L. Crites & D. Coker, What
Therapists See That Judges May Miss, The Judges’ Journal, 9, 11–12,
(Spring 1988)).6
¶21 	When a parent whose parental rights are subject to being
terminated 	has 	a 	history 	of 	violence, 	particularly 	domestic
6. Relevant literature indicates that men who saw their mothers
abused are more than twice as likely to abuse their spouses as
adults, and that women who saw their mothers abused are twice
as likely to be victimized as adults. See Matthew Robins, State of
Fear: Domestic Violence in South Carolina, 68 S.C. L. Rev. 629, 661
(2017) 	(citing 	Charles 	L. 	Whitfield 	et 	al., 	Violent 	Childhood
Experiences and the Risk of Intimate Partner Violence in Adults, 18 J.
Interpersonal Violence 166, 178 (2003)); see also Michal Gilad,
Abraham Gutman & Stephen P. Chawaga, The Snowball Effect of
Crime and Violence: Measuring the Triple-C Impact, 46 Fordham
Urb. L.J. 1, 10 (2019) (“The rattling presence of violence in the
home can also lead to erroneous beliefs: the conceptualization
that aggression is a functional and legitimate part of intimate
relationships and family dynamics, and the belief that men are
intrinsically 	dominant 	and 	privileged.”) 	(citing 	Sandra 	A.
Graham-Bermann & Victoria Brescoll, Gender, Power and Violence:
Assessing the Family Stereotypes of the Children of Batterers, 14 J.
Fam. Psychol. 600, 605 (2000)).

In re C.C.W.
20170360-CA 	14 	2019 UT App 34
violence, trial courts should carefully weigh the potential impact
of that violence on the children as part of considering whether
termination of the parent’s rights would be in the best interest of
the children, even if the parent has not visited any of that
violence directly upon the children. See In re B.T.B., 2018 UT App
157, ¶ 47 (stating that “the ‘best interest’ inquiry is broad, and is
intended 	as 	a 	holistic 	examination 	of 	all 	of 	the 	relevant
circumstances that might affect a child’s situation”); see also In re
K.K., 2017 UT App 58, ¶ 4, 397 P.3d 745 (per curiam) (explaining
that Mother’s “unresolved domestic violence issues” made it
“unsafe for the children to be around her”); In re R.T., 2013 UT
App 108, ¶ 7, 300 P.3d 767 (per curiam) (concluding that it was
in the children’s best interest to terminate their father’s parental
rights given his history of violence and anger issues).
¶22 	In this case, Father not only attacked two women, but he
brutally beat Mother, choked her to the point of momentary
unconsciousness, and threatened to kill her at gunpoint. Yet in
its findings, the juvenile court brushed aside Father’s violent
history and the risk that Father’s conduct might pose to the
Children, emphasizing the fact that there was no evidence that
Father had ever been violent toward children. We find such
compartmentalization troubling, especially given the fact that
individuals prone to domestic violence tend to reoffend.7 See
United States v. Bryant, 136 S. Ct. 1954, 1959 (2016) (“As this
Court 	has 	noted, 	domestic 	abusers 	exhibit 	high 	rates 	of
recidivism, and their violence ‘often escalates in severity over
time.’”) (quoting United States v. Castleman, 572 U.S. 157, 160
(2014)); see also Linell A. Letendre, Beating Again and Again and
Again: Why Washington Needs a New Rule of Evidence Admitting
Prior Acts of Domestic Violence, 75 Wash. L. Rev. 973, 977–78
(2000) (stating that a person’s past violent behavior is “the best
predictor of future violence,” because “studies demonstrate that
7. In this case, as noted above, Father did reoffend, and did so
within one year of his release from prison on his first offense.

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20170360-CA 	15 	2019 UT App 34
once violence occurs in a relationship, the use of force will
reoccur in 63% of these relationships,” and that “even if a
batterer moves on to another relationship, he will continue to
use physical force as a means of controlling his new partner”
(quotation simplified)).
¶23 	Of course, not every parent who has committed an act of
domestic violence deserves to have his or her parental rights
terminated. Each case must be judged on its own merits, and in
appropriate cases a trial court might reasonably find, among
other things, that the domestic violence issues in the case are not
sufficient to counsel in favor of termination; that the parent in
question has taken meaningful steps to change his or her life and
make amends; that under the circumstances presented there is
no significant risk of continued violence; or that, even when all
incidents of past violence are fully considered, the children
would be better off with the parent still playing an active role in
their 	lives 	than 	they 	would 	be 	if 	the 	parent’s 	rights 	were
terminated. But the trial court must carefully explain its reasons
for so finding, and it is not sufficient to say, as the juvenile court
essentially did here, that acts of domestic violence are not
relevant 	in 	a 	termination 	case 	simply 	because 	none 	of 	the
violence was directly visited upon the Children.
¶24 	Again, we recognize that the juvenile court made these
comments in the context of assessing Father’s fitness as a parent
under statutory grounds. While the juvenile court did not repeat
these comments in the “best interest” portion of its analysis, and
while the juvenile court did make general findings that Father’s
“circumstances are different now” because, among other things,
Father has “obtained treatment for his mental health needs” and
“currently receives therapy,” the juvenile court never directly
grappled 	with 	Father’s 	violent 	history 	in 	its 	best 	interest
analysis. It may be that the juvenile court espouses the view that,
in this case, the steps Father has taken to address his situation
have ameliorated any risk that his violent past might pose to his
successful 	reintroduction 	into 	the 	Children’s 	lives. 	But 	the

In re C.C.W.
20170360-CA 	16 	2019 UT App 34
juvenile court did not expressly explain why it believes this is so
and, evaluated against the backdrop of the compartmentalizing
comments it made in the course of its “fitness” analysis, we
cannot construe the juvenile court’s best-interest discussion as
containing adequately articulated reasons for its decision.8
8. Mother raises two other potential flaws with the juvenile
court’s analysis. First, she asserts that the juvenile court focused
too heavily on Mother’s fitness as a parent, in violation of our
earlier pronouncement that “the best interests prong of the
termination statute does not anticipate an evaluation of a parent
whose fitness has not been challenged by a cross-petition to
terminate parental rights.” See In re A.M., 2009 UT App 118, ¶ 23,
208 P.3d 1058. At issue in that case was an effort by the parent
whose rights were at issue to subpoena 	the other parent’s
“health records” in an effort to prove her unfitness. Id. ¶¶ 18, 21.
We affirmed the juvenile court’s order quashing that subpoena,
on the grounds that those health records were irrelevant because
the other parent’s fitness was not at issue. Id. ¶ 23. That case is
easily distinguishable from this one, in that here, the juvenile
court’s 	discussion 	of 	Mother’s 	living 	situation 	came 	in 	the
context of assessing whether the Children were “stable,” and in
evaluating Mother’s own argument that adding Father back into
their lives would affect their stability. Taking such things into
account as part of the holistic “best interest” inquiry is entirely
proper, and a far cry from, for instance, giving the respondent in
a termination case access to the petitioner’s health records.
Second, Mother asserts that the juvenile court relied too
heavily on the possibility that termination of Father’s parental
rights might result in the Children losing any right to receive
any of Father’s veterans’ benefits. This issue was not well briefed
by the parties from a legal standpoint, and its resolution also
depends 	upon 	factual 	issues 	not 	specifically 	found 	by 	the
juvenile 	court, 	which 	phrased 	its 	findings 	on 	this 	issue 	in
hypothetical, 	conditional 	terms 	(e.g., 	the 	Children 	“would
(continued…)

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20170360-CA 	17 	2019 UT App 34
CONCLUSION
¶25 	Accordingly, we conclude that the juvenile court’s best-
interest determination was materially flawed, because the court
did 	not appropriately consider what effect, if any, Father’s
history of domestic violence might have on his efforts to re-
establish a relationship with the Children. We therefore vacate
the juvenile court’s order dismissing Mother’s petition, and
remand for proceedings consistent with this opinion. We do not,
however, make any effort to urge the juvenile court to reach one
conclusion or another upon reconsideration. Given the juvenile
court’s superior position and specialized training and experience
in matters involving children, supported factual findings from
the 	juvenile 	court 	on 	remand, 	entered 	after 	adequately
considering all of the proper factors, are, of course, always
entitled to deference by appellate courts.
(…continued)
potentially” lose veterans’ benefits because Father “could object”
to their receiving them). To the extent this issue remains relevant
on remand, the juvenile court may invite the parties to explore it
in a more meaningful way.