In re K.F.

2009 UT 4
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, in the interest of No. 20070893
K.F., a person under eighteen
years of age.
_____________________________
A.O.,
Appellant,
v.
F I L E D
State of Utah,
Appellee. January 23, 2009
---
Seventh District Juvenile, Moab Dep’t
The Honorable Mary Manley
No. 176986
Attorneys: K. Andrew Fitzgerald, Moab, for appellant
Mark L. Shurtleff, Att’y Gen., John M. Peterson,
Carol L.C. Verdoia, Asst. Att’ys Gen., Salt Lake
City, for appellee
Martha M. Pierce, Salt Lake City, for the Office of
the Guardian Ad Litem
---
On Certification from the Utah Court of Appeals
DURRANT, Associate Chief Justice:
INTRODUCTION
¶1 This case concerns a juvenile court order that changed
a minor’s (“K.F.”) permanency goal from reunification with her
mother (“mother”) to individualized permanency with a concurrent
goal of custody and guardianship. The mother appealed the
juvenile court’s order to the court of appeals, which then, on
its own motion, certified the case for transfer to this court.
¶2 The mother raises six issues on appeal:

1 2004 UT 72, 99 P.3d 801.
No. 20070893 2
(1) whether the juvenile court had subject matter
jurisdiction;
(2) whether the court order that changed K.F.’s permanency
goal from reunification to individualized permanency
constitutes a final order from which she may appeal as
a matter of right;
(3) whether the evidence was sufficient for the juvenile
court to determine that the mother failed to comply
with the service plan and that the Division of Child
and Family Services (“DCFS”) made reasonable efforts to
reunify K.F. with her mother;
(4) whether the mother was required to preserve a challenge
to the adequacy of the juvenile court’s findings to
enable this court to address the issue on appeal;
(5) whether the juvenile court’s findings were sufficiently
detailed to facilitate meaningful appellate review; and
(6) whether the juvenile court should have applied the
parental presumption.
¶3 The court of appeals certified the case based upon two
of these issues that it believed warranted consideration by this
court: whether the juvenile court order is final and appealable
and whether we ought to revisit our holding in 438 Main Street v.
Easy Heat, Inc.,1 which requires parties to preserve in the trial
court the adequacy of the court’s findings of fact.
¶4 For the reasons detailed below, we affirm the juvenile
court’s order and hold that (1) the juvenile court had subject
matter jurisdiction; (2) a permanency goal of individualized
permanency is a final and appealable order; (3) the evidence was
sufficient for the juvenile court to find that the mother failed
to comply with her service plan and that DCFS made reasonable
reunification efforts; (4) 438 Main Street is reaffirmed, and the
mother’s challenge to the adequacy of the detail in the juvenile
court’s findings is dismissed because she did not preserve the
challenge; and (5) because the mother lost the parental
presumption when she voluntarily placed K.F. in state custody,
the juvenile court acted properly when it did not apply the
parental presumption.

2 The mother claimed that the offender told her that his
conviction had been overturned. However, the offender had been
convicted of having sex with a 14-year-old girl when he was 26.
3 The State based the petition on allegations that K.F.
refused to stay home at night, associated with older boys and
girls, took her mother’s car joyriding, was cited for possession
of tobacco and curfew violation, stole money and credit cards,
(continued...)
3 No. 20070893
BACKGROUND
¶5 K.F. has been placed in state custody on two different
occasions, first in 2003 and again in 2006. In 2003, the
juvenile court determined K.F. was an “abused, neglected, and/or
dependent” child based on stipulated findings that K.F.’s mother
and father abused drugs in the home and the father committed acts
of domestic violence. After a short period with her grandmother,
K.F. was placed in foster care with the Smith family. Her
permanency goal was set as reunification with her mother.
Nearly a year later, the juvenile court ordered that K.F. be
returned home, contingent upon her mother’s compliance with
several conditions, including that she receive protective
supervision services (“protective services”) from DCFS. DCFS
continued protective services until July 22, 2005, whereupon the
juvenile court entered an order staying protective services for
the family.
¶6 In the summer of 2006, DCFS received a tip alleging
that the mother was drinking in the home and neglecting her
children. Based on these allegations, the State filed a motion
to lift the stay of protective services. On October 18, 2006,
the juvenile court held a hearing on the State’s motion. At the
hearing, the juvenile court noted that protective services had
been stayed on the condition that K.F. complete counseling, which
she failed to do. In furtherance of its motion, the State
pointed to the following: (1) the mother had recently begun
individual counseling and received medication for depression
based on an incident in which she cut herself to see if a man
cared for her; (2) K.F., then age 12, had stayed out all night
with a 19-year-old male, and while her mother knew K.F. was out
all night with a male, her mother did not know his age; and (3) a
registered sex offender was living in the family’s home.2 As a
result, the juvenile court lifted the stay.
¶7 On October 23, 2006, the State filed a new, verified
petition for custody alleging that K.F. was an “abused,
dependent, and/or neglected child.”3 At a shelter hearing two

3 (...continued)
smoked cigarettes, mistreated her younger siblings, and had
several boyfriends over the age of 16 years. In addition, the
petition alleged that the mother’s use of Lortab and Xanax
prevented her from properly caring for K.F. When the police
notified the mother that K.F. had taken the mother’s car, the
mother indicated that she had taken a Xanax pill and was never
aware the car was gone.
4 K.F. was also ordered to complete 119 hours of community
service, submit to random drug testing, and attend an END tobacco
cessation class.
5 The mother was found to have violated her service plan
because she failed to call in for drug testing. K.F. was found
to have violated her service plan because she stole from a
teacher and was communicating with older males via the internet.
No. 20070893 4
days later, K.F. admitted allegations in the petition regarding
her behavior. Because of K.F.’s ungovernable behavior, her
mother voluntarily placed K.F. in state custody, on the condition
that DCFS would again place K.F. with her former foster parents,
the Smiths. Subsequently, the juvenile court ordered K.F.’s
removal from her mother’s home and placed K.F. in the interim
custody of DCFS.4
¶8 On November 15, 2006, based on stipulated findings of
fact, the juvenile court found that K.F. was beyond her mother’s
control and that removal from her mother’s home was in K.F.’s
best interest. Consequently, the court ordered K.F.’s removal,
and she was placed again with the Smiths in foster care.
¶9 DCFS filed a service plan identifying K.F.’s permanency
goal as reunification with her mother. The service plan required
the mother to undergo drug testing and included a recommended
counseling plan for K.F. The mother was also expected to be in
contact with K.F. at least twice a week and participate in family
therapy sessions with K.F. as recommended by the therapist.
¶10 Throughout the year, K.F. and her mother attended
hearings at which the juvenile court found them in contempt of
their service plans.5 Nevertheless, K.F.’s permanency goal
remained reunification with her mother.
¶11 On October 17, 2007, the juvenile court held a
dispositional review/12-month hearing. The hearing was a full
evidentiary hearing at which K.F.’s therapist, the mother, and
DCFS case workers testified.

5 No. 20070893
¶12 K.F.’s therapist, Tammy Roberts, testified that K.F.
made only minimal progress with her mother because her mother
made herself unavailable by moving out of the state and attending
only three in-person therapy sessions, two of which were during
the same weekend. Additionally, during their therapy sessions,
K.F. and her mother discussed past incidents that had upset K.F.,
including K.F.’s claim that she had been sexually abused. In
response to K.F.’s allegations, the mother indicated that the
mother “must have been high” or was unaware of these incidents,
but the mother responded to K.F. generally with shock and doubt.
Nevertheless, Roberts believed that “things were starting to come
out and . . . that there was some work that they were starting to
do, had the capacity to do, and that there would be a need for
continued family therapy.” At the time of the hearing, Roberts
also believed that there was a “substantial risk of detriment to
[K.F.’s] emotional well[-]being if she returned to her home”
without at least six more months of bimonthly counseling between
K.F. and her mother. Roberts also indicated that she had tried
her best to accommodate the mother’s schedule so that therapy
sessions could occur.
¶13 The mother testified that she knew that the therapist
wanted her to participate in weekly family therapy sessions, but,
since moving from Wyoming to Grand Junction, Colorado in January
2007, she was unable to travel to Salt Lake to participate in
therapy sessions because of the financial burden associated with
travel. Additionally, the mother’s job, her other children’s
school schedules, and her own pregnancy, made it difficult for
her to attend therapy sessions. Finally, despite her struggles,
the mother claimed that she recognized her flaws and was in a
better place in her life.
¶14 Jennifer Ruggeri, a DCFS caseworker, testified that in
the beginning she was not aware of any financial difficulty the
mother had, as the mother had been traveling from Wyoming to
visit K.F. in Layton quite frequently. But after the mother
moved to Grand Junction in January, she rarely visited K.F. and
told Ruggeri that she could not afford to visit her daughter.
Ruggeri testified that DCFS responded by offering assistance to
enable the mother to visit K.F. and attend therapy sessions.
Ruggeri further testified that “no matter how hard we tried to
problem solve, there always was an obstacle that we just couldn’t
get past.”
¶15 DCFS case worker Leone Besinger testified that the
mother had indicated to her that she needed K.F. to be returned
to the mother by October 1 because she could no longer afford to
pay for K.F.’s foster care.

6 Suazo v. Salt Lake City Corp., 2007 UT App 282, ¶ 5, 168
P.3d 340.
7 State ex rel. S.M., 2007 UT 21, ¶ 15, 154 P.3d 835.
8 In re E.R., 2001 UT App 66, ¶ 11, 21 P.3d 680.
No. 20070893 6
¶16 At the close of the hearing, the juvenile court found
by a preponderance of the evidence that returning K.F. to her
mother’s home would “create a substantial risk of detriment to
[K.F.’s] well[-]being and that [she] cannot be returned home.”
The court also found that there was prima facie evidence that the
mother failed to comply with the court-ordered service plan,
which failure created a substantial risk of detriment to K.F.’s
well-being. Consequently, the juvenile court ordered that
reunification efforts be terminated, and the court changed K.F.’s
permanency goal from reunification with her mother to
individualized permanency with a secondary goal of custody and
guardianship. The juvenile court also ordered that DCFS continue
engaging the mother in family therapy and reimburse her for
travel expenses. The court noted that adoption is not an option
for K.F. because she is 13 years old, she desires a relationship
with her mother, and her mental health requires a relationship
with her mother. The juvenile court declared that the purpose of
family therapy “will not be one in which [K.F.] will return to
live with her mother, but will be one that is focused on helping”
K.F. resolve the issues she has with her mother. Further, the
judge told K.F. at the end of the hearing that the focus would no
longer be on reunification: “[M]y focus isn’t [on] returning you
home, and that won’t be my focus when we have other hearings.
And even if your mom engages in therapy, that won’t be my focus.”
¶17 The mother appealed this order to the court of appeals,
and, on its own motion, the court of appeals certified this case
for immediate transfer to this court. We have jurisdiction
pursuant to Utah Code section 78A-3-102(3)(b) (2008).
STANDARDS OF REVIEW
¶18 We apply a correction of error standard, giving no
deference to the juvenile court, in determining whether the
juvenile court had subject matter jurisdiction.6 We make an
original determination regarding whether the court’s permanency
order is final and appealable.7 We apply a clearly erroneous
standard in determining whether the juvenile court’s findings are
based upon sufficient evidence.8 In this area, “the juvenile
court in particular is given a ‘wide latitude of discretion as to

9 Id. (quoting In re F.D., 376 P.2d 948, 951 (Utah 1962)).
10 Laney v. Fairview City, 2002 UT 79, ¶ 45, 57 P.3d 1007
(citation and internal quotation marks omitted).
11 Utah Code Ann. § 62A-4a-201(1)(b) (Supp. 2008).
12 2004 UT 72, 99 P.3d 801.
13 Ameritemps, Inc. v. Labor Comm’n, 2005 UT App 491, ¶ 10,
128 P.3d 31.
7 No. 20070893
the judgments arrived at’ based upon not only the court’s
opportunity to judge credibility firsthand, but also based on the
juvenile court judges’ ‘special training, experience and interest
in this field, and . . . devoted . . . attention to such
matters.’”9
¶19 We overturn settled case law only when we are “clearly
convinced that the rule was originally erroneous or is no longer
sound because of changing conditions and that more good than harm
will come by departing from precedent.”10 Finally, we apply
strict scrutiny to the loss of the parental presumption.11
ANALYSIS
¶20 As threshold issues, we first address (1) whether the
juvenile court had subject matter jurisdiction and then (2)
whether the court’s order is final and appealable. Because we
hold that the court had subject matter jurisdiction and the order
is final and appealable, we then reach (3) whether the court had
sufficient evidence upon which to base its order, (4) whether we
should overturn 438 Main Street v. Easy Heat, Inc.12 to allow
adequacy of findings challenges to be heard on appeal without
preservation, and (5) whether the juvenile court should have
applied a parental presumption. Because we uphold 438 Main
Street, we do not reach the substance of the mother’s unpreserved
claim that the juvenile court’s findings were inadequate to
facilitate meaningful appellate review.
I. THE JUVENILE COURT HAD SUBJECT MATTER JURISDICTION
¶21 Whether subject matter jurisdiction exists is a
threshold issue that we must resolve before we may address the
appellant’s substantive issues.13 The mother contends that the
juvenile court lacked subject matter jurisdiction and, therefore,
the court’s order is void. While she is correct that a judgment
is void if the court that rendered it lacked subject matter

14 Brimhal v. Mecham, 494 P.2d 525, 526 (Utah 1972).
15 Utah Code Ann. § 78A-6-304(4)(c) (2008).
16 Id. § 78A-6-117(1)(a) (2008) (“The court shall make a
finding of the facts upon which it bases its jurisdiction over
the minor. But in cases within the provisions of Subsection 78A-
6-103(1), findings of fact are not necessary.”).
No. 20070893 8
jurisdiction,14 we hold that the juvenile court had subject
matter jurisdiction in this case because the mother voluntarily
placed K.F. in state custody.
¶22 Utah Code section 78A-6-103(1)(c) provides that the
juvenile court has exclusive jurisdiction in proceedings
concerning a minor who has been abused, neglected, or is
dependent. Before such proceedings may commence, the State must
file a petition with the juvenile court that not only alleges
that the minor has been abused, neglected, or is dependent, but
also supports that allegation with “a concise statement of facts,
separately stated.”15 In cases of abuse, neglect, or dependency,
the juvenile court need not make findings of fact to establish
its jurisdiction.16
¶23 In this case, the State filed a petition for custody on
October 23, 2006, alleging that K.F. was an “abused, dependent
and/or neglected child.” The petition included facts regarding
K.F.’s delinquent behavior, the mother’s ignorance of that
behavior, and the mother’s inability to parent K.F. due in part
to the mother’s use of Xanax. In addition, the mother not only
stipulated to these facts but also voluntarily placed K.F. in
state custody. This establishes a sufficient basis for subject
matter jurisdiction.
¶24 The mother argues that the stipulated findings did not
indicate that she had abused or neglected K.F., nor did they
indicate that K.F. was dependent. But she did stipulate to the
facts that supported the conclusion. Further, she stipulated
that the court had “jurisdiction pursuant to the Juvenile Court
Act of 1996.” Therefore, subject matter jurisdiction was proper
in the juvenile court.
II. AN ORDER SETTING A GOAL OF INDIVIDUALIZED PERMANENCY IS
FINAL AND APPEALABLE
¶25 Next we consider whether the order changing K.F.’s
permanency goal from reunification with her mother to
individualized permanency is a final appealable order. We hold
that an order of individualized permanency is a final appealable

17 See, e.g., Del A. v. Roemer, 777 F. Supp. 1297, 1313 (E.D.
La. 1991) (stating that foster care drift “refers to children
still in the foster care system after many years because
permanent goals were not established, maintained and carried
out”); In re R.D.B., 639 S.E.2d 565, 569 (Ga. Ct. App. 2006)
(“The policy of the law as outlined in its statutes addressing
children and foster care is to eliminate foster care drift and
promote stability and permanence for children whose parents are
unable or unwilling to provide for them. To allow this child to
continue in foster care awaiting the possibility that one day her
parents may be fit and she would then be wrenched from the care
and concern of responsible foster parents . . . would be a cruel
response to this child’s need and expectation of having from
society a home environment free of abuse and neglect regardless
of her status at birth. To await the parents[’] possible fitness
and leave this child with such an unstable future is likely to
cause serious physical, mental, emotional, or moral harm to
her.”).
18 Del A., 777 F. Supp. at 1313.
9 No. 20070893
order and is appropriate in situations where there is a
compelling reason to rule out goals of reunification, adoption,
guardianship, and kinship placements. We reach this conclusion
after a two-fold analysis: first, we analyze why individualized
permanency is a legitimate permanency goal, then we turn to why
an order setting a goal of individualized permanency is final and
appealable.
A. Individualized Permanency Is a Legitimate Permanency Goal
Only Where the Judge Who Sets the Goal Rules Out Statutory
Alternatives and Supports the Goal With a Compelling Reason
¶26 While the mother and the State agree that the order
ending reunification services and setting K.F.’s permanency goal
as individualized permanency is final and appealable, the
Guardian ad Litem (“GAL”) argues that the order is not final and
appealable, but rather interlocutory, because “it didn’t even
define what [K.F.’s] permanent status would be.” The GAL further
states that the goal of individualized permanency is not a
permanent goal but rather one that must be “narrowed down to a
specific permanent status.” The GAL further describes
individualized permanency as “foster care drift.”
¶27 The term “foster care drift” describes situations
wherein the temporary solution of foster care inadvertently
becomes a permanent solution.17 In these situations, a permanent
goal for the child is never properly established.18 But foster
care drift, with all that the term implies, is not an appropriate

19 Utah Code Ann. § 62A-4a-205(9)(b) (Supp. 2008) (stating
that there is an exception to the goals of adoption,
reunification, guardianship, and kinship placement as described
by Utah Code section 78A-6-306(6)(e)).
20 45 C.F.R. § 1356.21(h)(3) (2008). Although federal law is
not binding in this area, Utah chooses to follow it in order to
receive federal financial participation for foster care payments.
45 C.F.R. § 1256.21(a) (“To be eligible to receive Federal
financial participation (FFP) for foster care maintenance
payments . . . , a State must meet the requirements of this
(continued...)
No. 20070893 10
way to describe all goals that effectuate long-term foster care.
The Utah Legislature and the United States Congress have jointly
provided guidelines for the rare circumstances wherein a
permanency goal of long-term foster care, in this case labeled
individualized permanency, is in the best interest of the child.
¶28 Recognizing there are circumstances in which more
traditional goals of permanency are not appropriate, our
legislature has stated that when there “is a compelling reason”
that adoption, reunification, guardianship, or a kinship
placement are not in the child’s best interest, then “the court
may order another planned permanent living arrangement in
accordance with federal law.”19
¶29 Federal law, in turn, recognizes the need for
individualized permanency:
(3) If the State concludes, after considering
reunification, adoption, legal guardianship,
or permanent placement with a fit and willing
relative, that the most appropriate
permanency plan for a child is placement in
another planned permanent living arrangement,
the State must document to the court the
compelling reason for the alternate plan.
Examples of a compelling reason for
establishing such a permanency plan may
include:
. . .
(ii) The case of a parent and child who have
a significant bond but the parent is unable
to care for the child because of an emotional
or physical disability and the child’s foster
parents have committed to raising him/her to
the age of majority and to facilitate
visitation with the disabled parent . . . .20

20 (...continued)
section . . . .”); see also Utah Code Ann. § 62A-4a-105(6)
(requiring DCFS to “promote and enforce state and federal laws
enacted for the protection of abused, neglected, dependent,
delinquent, ungovernable, and runaway children, and status
offenders, in accordance with the requirements of this chapter”);
Utah Admin. Code r. 512-2-2 (2008) (“The Division of Child and
Family Services adopts the following federal requirements
applicable to Title IV-E Foster Care, Adoption, and Independent
Living . . . 45 CFR Part 1356, as updated through October 1, 1996
. . . .”).
21 Utah Code Ann. § 78A-6-314(2)(a)-(b).
22 The court indicated that the purpose of family therapy
“will not be one in which [K.F.] will return to live with her
(continued...)
11 No. 20070893
Thus, a goal of individualized permanency is in accordance with
federal law when the court seeking to establish the goal (1)
determines that reunification, adoption, guardianship, and a
kinship placement are not available options, and (2) articulates
a compelling reason for setting the goal of individualized
permanency.
¶30 In this case, the juvenile court met these
requirements. The court first ruled out the statutorily
preferred permanency goals, beginning with reunification. After
finding that the mother had not complied with her service plan,
the court was statutorily required to rule out reunification,21
which the court clearly did when it changed K.F.’s permanency
goal and stated that its focus would no longer be on
reunification. The court then determined that adoption was not
an option because K.F. was 13 years old, she desired a
relationship with her mother, and, based on expert testimony,
K.F.’s mental health required a relationship with her mother.
¶31 The court then articulated a compelling reason to
establish a goal of individualized permanency for K.F. K.F. was
residing with a foster care family with whom she had spent
considerable time. She not only lived with them for the year
prior to the permanency hearing, but she also lived with the
family at a previous time when she was in state custody.
Assessing K.F.’s need to maintain a relationship with her mother
despite the fact that the court could not reunite K.F. with her
mother, the juvenile court established a goal of individualized
permanency wherein K.F. will remain with her foster family and
DCFS will continue engaging the mother in family therapy with
K.F.22

22 (...continued)
mother, but will be one that is focused on helping the child to
overcome” the issues she has with her mother.
23 45 C.F.R. § 1356.21(h)(3)(ii).
24 In re Stuart S., 127 Cal. Rptr. 2d 856, 859 (Cal. Ct. App.
2002) (discussing 45 C.F.R. § 1356.21 (2002)).
25 In re A.G., 868 A.2d 692, 700 (Vt. 2004) (stating that
long-term foster care provided the child with permanency and
complied with the statute requiring that the court first rule out
reunification, adoption, guardianship, and a kinship placement).
No. 20070893 12
¶32 These facts closely resemble the federal regulation’s
example of a situation wherein long-term foster care is in the
child’s best interest--the parent and child have a significant
bond but reunification is impossible, and the child is living
with a foster family that is committed to raising the child to
majority and facilitating visitation between the parent and
child.23 For these reasons, we hold that the juvenile court’s
oral findings sufficiently stated a compelling reason to make
individualized permanency a permanent goal for K.F.
¶33 Other jurisdictions have reached similar conclusions.
California, reviewing similar facts, has held that long-term,
potentially-permanent foster care complies with federal
regulations:
Congress did not intend to dispense with
long-term foster care as a placement when
reunification efforts had failed but to
encourage regular review of the status of
foster children and permit creative solutions
for safe, permanent living arrangements for
minors who could no longer reside with their
parents. Of course, the periodic review of
the foster care placement permits the state
to adapt as circumstances change and consider
permanent plans which might not have been
available at the time reunification services
were terminated.24
Vermont has also found that long-term foster care is appropriate
when a child has a strong bond with a parent who is unable to
raise the child.25

26 Utah R. App. P. 3(a).
27 Id. at 5.
28 State ex rel. M.W., 2000 UT 79, ¶ 25, 12 P.3d 80.
29 State ex rel. S.M., 2007 UT 21, ¶ 18, 154 P.3d 835
(quoting State ex rel. E.M., 922 P.2d 1282, 1284 (Utah Ct. App.
1996)).
30 In re A.F., 2007 UT 69, ¶ 3, 167 P.3d 1070.
31 Id. (quoting In re W.A., 2002 UT 127, ¶ 22, 63 P.3d 607).
13 No. 20070893
¶34 Having determined that individualized permanency is a
legitimate permanent status and was properly ordered in this
case, we turn to whether an order setting a goal for
individualized permanency is a final order.
B. An Order Setting Individualized Permanency as a Minor’s
Permanency Goal Is a Final Appealable Order
¶35 An order is appealable as a matter of right if it is
final.26 All other orders may be appealed at the discretion of
the appellate court as interlocutory appeals.27
¶36 To be final, a juvenile court order must “end[] the
current juvenile proceedings, leaving no question open for
further judicial action.”28
[O]ur inquiry into whether an order leaves a
question open for further judicial action is
often unconcerned with the question of
whether the juvenile court’s jurisdiction
over a minor continues beyond its entry of
the order. Because “considerations regarding
a child’s welfare are rarely, if ever, static
and because the child’s environment is
constantly evolving,” the juvenile court
frequently retains jurisdiction over cases
after some of the issues have been finally
resolved.29
Therefore, “the determining factor in deciding if an order is
final and appealable is whether it effects a change in the
permanent status of the child.”30 A permanent change in the
child’s status vis-a-vis the child’s parent is sufficient.31

32 Id.
33 S.M., 2007 UT 21, ¶¶ 1, 17.
34 M.W., 2000 UT 79, ¶ 26.
35 In re M.V., 937 P.2d 1049, 1051 (Utah Ct. App. 1997).
36 A.F., 2007 UT 69, ¶ 7.
No. 20070893 14
Juvenile court orders that we have held are final and appealable
include orders terminating parental rights;32 orders that
simultaneously end reunification services, terminate DCFS’s
custody, and return the children to their parents;33 and orders
“entered upon disposition of an adjudicated petition of abuse,
neglect or dependency.”34
¶37 Juvenile court orders that we have held are not final
include shelter orders, which make an interim determination
pending additional proceedings,35 and orders that merely
terminate reunification services and change the child’s
permanency goal to adoption36--a goal that cannot be accomplished
without further judicial action.
¶38 This case provides us the first opportunity to address
whether an order resulting from a permanency hearing is final and
appealable if the order terminates reunification services and
changes a child’s permanency goal to “individualized permanency.”
At issue is whether individualized permanency requires additional
proceedings before the goal may be accomplished; that is, we must
determine whether setting a goal of individualized permanency
effectuates a permanent change in the child’s status. We hold
that it does.
¶39 K.F.’s mother argues that the goal of individualized
permanency set by the juvenile court at the permanency hearing
effectively transferred permanent custody from her. Unlike a
goal of adoption, further proceedings would not be necessary to
effectuate the goal because the court specifically ordered that
parental rights would not be terminated. Thus, the
individualized permanency order is the only order from which she
will be able to appeal the juvenile court’s decision to terminate
reunification efforts and keep K.F. in state custody.
¶40 The State agrees. It contends that the juvenile
court’s order effected a permanent change in K.F.’s status by
potentially denying the mother custody of K.F. for the rest of
K.F.’s minority. Further, the State observes that there likely
is not another order from which the mother may appeal the

37 S.M., 2007 UT 21, ¶ 18 (citation and internal quotation
marks omitted).
38 The mother did not preserve this issue in the juvenile
court, but pursuant to rule 52 of the Utah Rules of Civil
Procedure, she is not required to do so because this action was
tried by the court, not a jury.
15 No. 20070893
juvenile court’s decision to end reunification efforts in favor
of long-term state custody of K.F.
¶41 The GAL, on the other hand, argues that individualized
permanency is not a final order because it is subject to
revision. Although the GAL is correct in saying that by its very
nature individualized permanency is subject to revision, the GAL
is incorrect in assuming that the goal will necessarily be
revised. Its revision depends upon whether the relationship
between the parent and the child substantially changes, leaving
open the very real possibility that the relationship will not
substantially change. Therefore, individualized permanency may
remain the child’s permanency goal throughout the child’s
minority when such a goal is in the best interest of the child.
¶42 As such, it is possible that the mother will not have
another opportunity to appeal the court’s order if we do not
allow her to do so now. Perhaps in time, K.F.’s relationship
with her mother will change in such a way to enable the juvenile
court to re-examine the options of reunification or adoption.
Certainly, “considerations regarding a child’s welfare are
rarely, if ever static” because “the child’s environment is
constantly evolving.”37 But considering the very real
possibility that the relationship between the mother and K.F. may
not substantially change, this order must be considered final for
matters of appealability; otherwise, the mother may never have an
opportunity to appeal this order.
III. THE JUVENILE COURT HAD SUFFICIENT EVIDENCE TO FIND THAT THE
MOTHER FAILED TO COMPLY WITH HER SERVICE PLAN AND THAT DCFS
PROVIDED REASONABLE REUNIFICATION EFFORTS
¶43 We now turn to the mother’s substantive arguments.
Specifically, she contends that the evidence was insufficient for
the juvenile court to determine that she failed to comply with
her service plan and that DCFS provided reasonable efforts to
reunify her with K.F.38
¶44 We give the juvenile court wide discretion in
evaluating evidence because of the court’s opportunity to
evaluate credibility firsthand and the court’s training,

39 See State ex rel. S.M., 2007 UT 21, ¶ 12, 154 P.3d 835.
40 Wilson Supply v. Fradan Mfg. Corp., 2002 UT 94, ¶ 21, 54
P.3d 1177.
41 Utah Code Ann. § 78A-6-314(2)(b) (2008).
42 Id. § 78A-6-314(2)(c).
43 In re M.E.C., 942 P.2d 955, 958 (Utah Ct. App. 1997),
superseded by statute on other grounds, State ex rel. T.M., 2003
UT App 191, ¶ 18, 73 P.3d 959.
No. 20070893 16
experience, and interest in this area.39 To overturn a finding
of fact, we require the appellant to “marshal all the evidence in
support of the finding and then demonstrate that the evidence is
legally insufficient to support the finding when viewing it in a
light most favorable to the court below.”40
A. There Was Sufficient Evidence for the Juvenile Court to
Determine That the Mother Failed to Comply With Her Service Plan
¶45 At the dispositional hearing, the juvenile court found
that the mother had not complied with her service plan because
she attended only three family therapy sessions in twelve months.
The mother contends that because her service plan did not specify
a requisite number of therapy sessions she was to attend with
K.F., the juvenile court should not have found that she failed to
comply with the plan.
¶46 If, as here, a juvenile court finds by a preponderance
of the evidence that returning a child to a parent would create a
substantial risk of detriment to the child, the child may not be
returned home.41 Further, a parent’s failure to comply with a
service plan in whole or in part is prima facie evidence that
returning a child to a parent would create a substantial risk of
detriment to the minor.42 But the court of appeals has said that
“[w]here a service plan is not communicated to the parent, in
effect, no plan has been provided. Thus, the State cannot rely
on any alleged failure by the parent to comply with such a plan
in considering later action.”43
¶47 In this case, the service plan was communicated to the
mother. The service plan indicated that K.F. and her mother
“will participate in family therapy sessions if deemed necessary
by the therapist.” At trial, the family therapist testified that
originally she recommended two family therapy sessions per month.
She reduced her recommendation to a minimum of one session per
month when two sessions proved problematic for the mother.

44 Utah Code Ann. § 78A-6-312(2)(d)(ii)(A).
45 In re A.C., 2004 UT App 255, ¶ 14, 97 P.3d 706 (stating
that the court of appeals uses the dictionary definition of
“reasonable” and “efforts” to come to its definition of the term
(continued...)
17 No. 20070893
¶48 The mother contends that, despite the therapist’s
recommendation, DCFS did not articulate a requisite number of
visits for her to attend in order to be reunified with K.F.
Therefore, she argues, evidence that she attended only three
sessions is insufficient to find that she failed to comply with
her service plan. But there is sufficient evidence that the
mother knew of the recommendations for family therapy. For
example, she confirmed in her testimony that she was aware that
the family therapist wished to have weekly sessions and that the
mother knew it was important that she participate in person, not
just by telephone.
¶49 The purpose of family therapy in this case was to
assist K.F. and her mother in working through their issues so
that K.F. could trust her mother and feel safe if she were to
return home. K.F.’s therapist testified that there was a
substantial risk of detriment to K.F.’s emotional well-being if
she were to return home, due in part to the mother’s failure to
participate regularly in therapy. Therefore, the court had
sufficient evidence before it to find that the mother’s failure
to attend more than three in-person family therapy sessions in
twelve months constituted noncompliance with the service plan and
prevented K.F. from resolving the issues that brought her into
state custody.
B. There was Sufficient Evidence to Determine That DCFS Provided
Reasonable Reunification Efforts
¶50 The mother further contends that because DCFS did not
inform her of a specific number of therapy sessions that she
needed to attend, there was insufficient evidence for the
juvenile court to find that DCFS made reasonable reunification
efforts.
¶51 Utah Code section 78A-6-312(2)(d)(i)(A) requires DCFS
to make “reasonable efforts” to provide reunification services to
a minor for a specified period of time. The juvenile court has
the responsibility to determine whether the services offered
constitute reasonable efforts.44 A reasonable effort is “a fair
and serious attempt to reunify a parent with a child prior to
seeking to terminate parental rights.”45 Reasonableness in this

45 (...continued)
“reasonable efforts”).
46 Id.
47 Id. ¶ 10.
48 Id. ¶ 12.
49 Id. ¶ 20 (emphasis added).
50 Id. ¶ 17.
No. 20070893 18
context is an objective standard and depends upon a careful
consideration of the facts of each individual case.46
¶52 Trial courts are in the best position to evaluate the
credibility of witnesses, the parent’s level of participation in
reunification services, and whether services were appropriately
tailored to remedy the problems that led to the child’s removal.
Consequently, determining whether DCFS provided “reasonable
efforts” to reunify a parent with his or her child requires
juvenile court judges to observe facts “relevant to the
application of the law that cannot be accurately reflected in the
record available to appellate courts.”47 Thus, appellate courts
defer to juvenile courts on matters of credibility, and juvenile
courts have broad discretion in determining whether reasonable
reunification efforts were made.48 Accordingly, “absent a
demonstration that the determination was clearly in error, we
will not disturb the determination.”49
¶53 In State ex rel. A.C., the court of appeals held that
DCFS had provided reasonable efforts to a father who failed to
attend domestic violence treatment classes as required by his
service plan because it was “ultimately [the] Father’s
responsibility to ensure that he completed the treatment plan,
and he failed to do so.”50
¶54 In this case, the mother bases her claim that DCFS did
not make reasonable efforts to reunify her with K.F. on her
previously addressed argument that DCFS never informed her that
she needed to complete a certain number of therapy sessions
before K.F. would be returned to her.
¶55 Although DCFS did not communicate a precise number of
sessions she was required to attend to be eligible to reunite
with her daughter, the mother was aware that frequent family
therapy was an important part of her service plan. Further, the
therapist and the DCFS worker testified that they worked
diligently to arrange dates, times, and means so that the mother

51 2004 UT 72, ¶ 56, 99 P.3d 801.
19 No. 20070893
could be part of K.F.’s therapy on a regular basis. The
therapist worked to accommodate the mother’s schedule by holding
sessions in the late evening and on weekends. DCFS workers
testified that they had numerous conversations with the mother
about assisting her financially so that she could visit her
daughter frequently and participate in therapy sessions. DCFS
workers further testified that when they learned of the mother’s
financial situation, they immediately went to work to figure out
ways DCFS could help.
¶56 The mother put up roadblocks, however, to prevent
successful completion of the service plan. For example, she
moved out of the state, despite numerous warnings that this could
compromise reunification efforts. After moving, she did not
attend therapy sessions because she alleged that she could not
afford the cost of travel, but once she explained this to DCFS,
they offered to reimburse her for travel costs. Moreover, DCFS
testified that as soon as they got past one barrier, the mother
would always identify another. Consequently, the mother made
only two visits to see her daughter in the ten months after the
mother moved to Grand Junction.
¶57 This evidence was sufficient for the juvenile court to
determine that DCFS provided reasonable efforts to reunify K.F.
with her mother but that the mother failed to comply with the
service plan. Therefore, we will not disturb the juvenile
court’s finding that DCFS provided reasonable reunification
efforts.
IV. WE REAFFIRM 438 MAIN STREET AND, ACCORDINGLY, DO NOT REACH
THE MOTHER’S CLAIM THAT THE FINDINGS WERE INADEQUATELY DETAILED
BECAUSE SHE FAILED TO PRESERVE IT
¶58 In her brief, the mother argues that the juvenile
court’s findings of fact were inadequately detailed. She
acknowledges, however, that she did not object on this ground
during or after the permanency hearing.
¶59 Our holding in 438 Main Street v. Easy Heat, Inc.
requires a party to challenge in the trial court the adequacy of
the court’s factual findings to preserve an adequacy of the
findings issue for appeal.51 Under a 438 Main Street analysis,
the mother clearly did not preserve a challenge to the adequacy
of the juvenile court’s findings. She does not contest this
conclusion. Nevertheless, the mother contends that she was not
required to preserve the issue for appeal because, as she views
it, the holding in 438 Main Street contradicts rule 52 of the

52 In re K.H., 2004 UT App 483, ¶ 10 n.5, 105 P.3d 967.
53 Utah R. Civ. P. 52(a)-(b) (emphasis added).
54 438 Main St., 2004 UT 72, ¶ 56.
55 Id. ¶ 54.
No. 20070893 20
Utah Rules of Civil Procedure. To support her contention, she
cites the court of appeals’ opinion, In re K.H., in which that
court described 438 Main Street as “problematic,” “hyper
technical,” and imposing an “unduly heavy burden on counsel.”52
¶60 We take this opportunity to clarify and reaffirm our
decision in 438 Main Street. The requirement that a party raise
a challenge to the adequacy of the findings of fact at the trial
court before the challenge may be heard on appeal does not
conflict with rule 52 of the Utah Rules of Civil Procedure, which
provides in relevant part as follows:
(a) . . . Requests for findings are not
necessary for purposes of review.
(b) . . . When findings of fact are made in
actions tried by the court without a jury,
the question of the sufficiency of the
evidence to support the findings may
thereafter be raised whether or not the party
raising the question has made in the district
court an objection to such findings or has
made either a motion to amend them, a motion
for judgment, or a motion for a new trial.53
Clearly, rule 52 addresses sufficiency of the evidence
challenges. In 438 Main Street, however, we addressed challenges
to the adequacy of the detail in the findings of fact. There we
stated that a plaintiff “waive[s] any argument regarding whether
the district court’s findings of fact were sufficiently detailed”
when the plaintiff fails to challenge the detail, or adequacy, of
the findings with the district court.54
¶61 A challenge to the adequacy of the court’s findings is
notably different from a challenge to the sufficiency of
evidence. “It is one thing for a party to say that the judge’s
findings are erroneous because they are contrary to or
unsupported by the evidence, and quite another to say that the
findings are insufficiently detailed.”55 It would be superfluous
to demand that a party challenge the evidentiary support for a
court’s findings shortly after the court articulates them. But
it is quite a different matter and wholly necessary for a party

56 Id.
57 Id.
58 Id. ¶ 51 (citations and internal quotation marks omitted).
21 No. 20070893
to challenge and thus afford the trial court “an opportunity to
correct the alleged error” of inadequately detailed findings in
order to provide for meaningful appellate review of the court’s
decision.56
¶62 As we noted in 438 Main Street, we can envision
situations where “a court’s findings could be adequately
supported by the evidence but nevertheless insufficiently
detailed to disclose the steps by which the judge reached his or
her conclusions.”57 The reasoning behind the distinction is that
[i]n order to preserve an issue for appeal[,]
the issue must be presented to the trial
court in such a way that the trial court has
an opportunity to rule on that issue. This
requirement puts the trial judge on notice of
the asserted error and allows for correction
at that time in the course of the
proceeding.58
A trial court judge has the opportunity to address the
sufficiency of the evidence to support the findings in his or her
judgment. But a trial judge does not have the chance to address
the adequacy of the findings themselves, unless that issue is
brought before him or her. Therefore, requiring a party to
object to the adequacy of the detail of the trial court’s
findings before appeal allows the trial judge to address and
correct, if necessary, the level of detail in his or her findings
before the case moves forward.
¶63 Judicial economy would be disserved if we permitted a
challenge to the adequacy of the detail in the findings to be
heard for the first time on appeal. Not only is an error in the
detail in the findings easy for a trial judge to correct, but it
is an error that is best corrected when the judge’s findings are
fresh in the judge’s mind. Further, it is a waste of judicial
resources for an appellate court to entertain such a challenge
when the only likely remedy is merely a remand to the trial court
for more detailed findings. We decline to offer such a remedy
unless the petitioner first provided the trial court the
opportunity to correct the error.

59 See In re J.M.V., 958 P.2d 943, 947 (Utah Ct. App. 1998);
see also Troxel v. Granville, 530 U.S. 57, 66 (2000).
60 In re H.R.V., 906 P.2d 913, 917 (Utah Ct. App. 1995).
61 Hutchison v. Hutchison, 649 P.2d 38, 41 (Utah 1982).
62 Id.
No. 20070893 22
¶64 Accordingly, we affirm 438 Main Street, and we decline
to address the mother’s challenge to the detail of the juvenile
court’s findings because she did not preserve the issue for
appeal.
V. THE MOTHER LOST HER PARENTAL PRESUMPTION WHEN SHE VOLUNTARILY
PLACED K.F. IN STATE CUSTODY
¶65 The mother argues that the juvenile court erred when
the court changed K.F.’s permanency plan to individualized
permanency without considering her parental presumption.
Although the record does not indicate that the juvenile court
explicitly considered the mother’s parental presumption when the
court decided to terminate reunification efforts, the mother lost
the presumption when she voluntarily placed K.F. in state custody
the year before.
¶66 Utah law recognizes that in a custody dispute between a
parent and a non-parent, there is a presumption that it is in the
best interest of the child to be under the care, custody, and
control of the child’s natural parent.59 It has been recognized
that “every natural parent has a right to rely on the parental
presumption to prevent the transfer of his or her child’s custody
to a nonparent, unless the presumption has been rebutted or
otherwise lost.”60 If the parental presumption is overcome, the
parent and non-parent “compete on equal footing” and the court
will consider other factors when determining custody.61
¶67 In Hutchison v. Hutchison, we held that the presumption
may be rebutted by evidence demonstrating that the parent lacks
all three of the characteristics giving rise to the presumption:
(1) that no strong mutual bond exists, (2) that the parent has
not demonstrated a willingness to sacrifice his or her own
interest and welfare for the child’s, and (3) that the parent
lacks the sympathy for and understanding of the child that is
characteristic of parents generally.62
¶68 The parental presumption is lost where a parent has had
his or her parental rights terminated or has previously lost

63 State ex rel. M.W., 2000 UT 79, ¶ 18, 12 P.3d 80.
64 Id.
65 S.V., 906 P.2d at 917 (emphasis added).
66 In re J.M.V., 958 P.2d 943, 948 (Utah Ct. App. 1998).
67 Id.
68 2001 UT App 225, ¶ 10, 29 P.3d 676.
23 No. 20070893
custody of a child.63 The “loss of custody, whether temporary or
permanent, must be the result of a final factual determination on
the merits of an underlying petition.”64 The loss of the
parental presumption denies the parent the right “to reassert the
parental presumption at a later date unless custody has since
been restored to the parent.”65
¶69 The parental presumption does not apply, as the court
of appeals has correctly held, to cases “brought before the
[juvenile] court on abuse, neglect, or dependency petitions.”66
In such cases, the petition alone is sufficient to overcome the
parental presumption for purposes of adjudicating the allegations
in the petition.67
¶70 In Davis v. Davis, the court of appeals concluded that
by signing a custody stipulation that only reserved visitation,
the father had implicitly agreed that his parental presumption
had been rebutted and that the best interests of the child
dictated that he not receive custody.68 We agree. The parental
presumption does not apply to a parent who has lost or
voluntarily relinquished custody of his or her child. We need
not, therefore, address whether the mother’s presumption was
rebutted under the Hutchison analysis because she lost her
presumption when she voluntarily placed K.F. in state custody.
CONCLUSION
¶71 We hold that the juvenile court had subject matter
jurisdiction to issue a permanency order for K.F.; the court’s
order terminating reunification and setting a goal of
individualized permanency is final and appealable; the juvenile
court had sufficient evidence upon which to base findings that
the mother failed to comply with her service plan and that DCFS
made reasonable efforts to reunify K.F. with her mother; the
mother failed to preserve a challenge to the adequacy of the
findings, as required by 438 Main Street; and because the mother
lost the parental presumption when she voluntarily placed K.F. in

No. 20070893 24
state custody, the juvenile court was correct in not applying the
parental presumption.
¶72 Affirmed.
---
¶73 Chief Justice Durham, Justice Wilkins, Justice Parrish,
and Justice Nehring concur in Associate Chief Justice Durrant’s
opinion.