In re N.E.

2026 UT App 24

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF N.E.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.

N.E.,
Appellant,
v.
STATE OF UTAH AND J.L.P.,
Appellees.

Amended Opinion *
No. 20240672-CA
Filed February 12, 2026

Fourth District Juvenile Court, Provo Department
The Honorable Suchada P. Bazzelle
No. 1213360

Martha Pierce, Alisha Giles, and Heath Haacke,
Guardians ad Litem Attorneys for Appellant
Derek E. Brown, Deborah A. Wood, and John M.
Peterson, Attorneys for Appellee State of Utah
Kirstin Norman, Alexandra Mareschal, and Debra
Nelson, Attorneys for Appellee J.L.P.,
assisted by law student Sonya Chechik 1

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES RYAN D. TENNEY and JOHN D. LUTHY concurred.

*
This Amended Opinion replaces the Opinion in Case No.
20240672-CA issued on October 23, 2025. In response to a petition
for rehearing by Appellee J.L.P., we have added footnote 3.

1. See Utah R. Jud. Admin. 14-807 (governing law student practice
in the courts of Utah).
In re N.E.

CHRISTIANSEN FORSTER, Judge:

¶1 Sometime after being removed from the custody of her
mother, J.L.P. (Mother), N.E. (Child) was placed in the care of her
biological grandfather (Grandfather) and his domestic partner of
about thirty years (Grandmother). 2 The State later petitioned for
termination of Mother’s parental rights. After a trial on the matter,
the juvenile court denied the petition, determining that although
there were grounds for termination of Mother’s parental rights,
termination was not strictly necessary. The guardian ad litem (the
GAL) now appeals, arguing that the juvenile court’s
misinterpretation of the applicable statutory requirements and
relevant appellate case law led it to ignore certain of its own
findings regarding Child’s best interest. We agree that the juvenile
court’s best-interest analysis was based upon a misapplication of
the law, and we remand this case to the juvenile court to revisit
the best-interest determination based on the further guidance
contained herein.

BACKGROUND

¶2 When Child was six years old, she was removed from
Mother’s care due to Mother’s “substance abuse problem that
affect[ed] her ability to parent.” The juvenile court thereafter
“concluded that [Child] was neglected as to [Mother],” and
reunification services commenced. Although Child was initially
placed with a foster family, she was later moved to a kinship
placement with Grandfather and Grandmother. Grandfather is
Child’s paternal grandfather. And while Grandmother is neither

2. Child’s biological father entered a Voluntary Relinquishment of
Parental Rights. The juvenile court accepted his relinquishment
and permanently terminated his parental rights, and he is
therefore no longer involved in this case.

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In re N.E.

a biological nor legal relative of Child, “she has known [Child] her
entire life” and “considers herself [Child’s] grandmother.”

¶3 Thirteen months after Child’s initial removal, the State
filed a Verified Petition for Termination of Parental Rights,
arguing that Mother’s “unresolved substance abuse issues, her
inability to demonstrate compliance with the service plan and
with [the juvenile court’s] other orders, and her ongoing legal
troubles” left her “unable to provide proper parental care to
[Child].” The State asserted that it was “in the best interest of
[Child] that [Mother’s] parental rights be terminated so [Child
could] be adopted by an appropriate placement who [could]
provide [her] with a secure and stable home and who [could] love
and protect [her] from abuse and neglect.”

¶4 After a trial, the juvenile court issued a written order
denying the petition to terminate Mother’s parental rights. First,
the court determined that the State had “met its burden of proof
by clear and convincing evidence” that several grounds existed
for the termination of Mother’s parental rights. And the court also
determined that reasonable reunification efforts had been made.
Next, the court addressed the best interest of Child, making the
following findings: that it was “probably in [Child’s] best interests
to have some ongoing contact with [Mother],” that visits with
Mother had “been going well,” that Mother had “been consistent
in having contact with [Child’s] custodians and caregivers,” that
Mother had “made only token efforts to pay a reasonable portion
of child support,” that Mother “continued to use dangerous drugs
throughout the case” and “continued to engage in criminal
behavior through the entire reunification period,” that the court
“was not convinced” that Mother was “in long-term recovery”
from her substance abuse and “future relapses [were therefore]
likely,” that Child’s needs would “be best served by the highest
level of stability and legal protection for her permanent
placement,” and that “[a]doption would put [Grandfather] and
[Grandmother] in firm control.” As a result of these factors, the
court concluded, “[T]ermination of parental rights and adoption

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is in [Child’s] best interests. However, the term ‘strictly necessary’
speaks against it.”

¶5 The juvenile court then proceeded, in a final section of the
analysis set off with the subheading “Alternate Options & Strictly
Necessary,” to address the fact that Child’s placement with
Grandfather and Grandmother “provides a less restrictive
alternative to termination of parental rights, namely permanent
custody and guardianship with a relative.” The court determined
that due to this situation, “there [was] a strong argument under
the current case law that a permanent custody and guardianship
arrangement [would] serve [Child] just as well as an adoption”
and that termination of Mother’s parental rights was not strictly
necessary. The reasoning of the court was as follows:

This Court has extensive experience in
working with children who have been abused or
neglected by parents who are addicted to
substances and with the familial dysfunction that
surrounds these parents and their children. The
dynamic identified by the State [that the option of
permanent custody and guardianship with
Grandfather and Grandmother would relegate
them to many more years of cat-and-mouse] is real
and it is detrimental to the long-term stability and
wellbeing of children. The Court has observed this
dynamic in its own interactions with [Mother]
during reunification efforts in this very case and
foresees that it will continue as long as [she has] any
hold on [Child] and [Child’s] guardians. . . .

This Court is convinced by the arguments of
the State and [the GAL], but the current status of
case law speaks against them. The appellate courts
have made determinations reflecting how much
weight should be assigned to certain facts presented
to the Juvenile Court. In this case, the fact that

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[Child] is with relatives who are willing to accept
permanent custody and guardianship and who
believe, at least at this moment, that they can work
cooperatively with [Mother] will be given far more
weight on appeal than will be given to [Child’s]
need for enhanced stability and protection from
conflict. [The State] believes adoption would
provide the most control and stability for both the
guardians and [Child] and that this is beneficial in
heading off future conflict and triangulation as
[Child] ages. The Court believes this is true.
However, prevailing case law has deemed these
factors to be “categorical” and [has] specifically
rejected them when used in favor of adoption. The
Court disagrees with this analysis.

In this Court’s experience, when working
with the long-term placement and wellbeing of
children who have been harmed by the conduct of
unreliable, unfit and/or incompetent parents, in
most cases stability is the point. Children who have
experienced such trauma need stability in order to
heal and develop a trusting, reliable relationship
with their caregivers. Those caregivers need the
legal protection to make decisions unencumbered
by a parent who may or may not be healthy enough
to make safe, appropriate, child-focused decisions
and participate in a positive relationship with the
child and guardians. The situation becomes more
difficult as children age and are more susceptible to
the influence of unhealthy parents who may
attempt to undermine or otherwise detract from the
authority of the guardian and/or their relationship
with the child. The Court has often observed this
type of subterfuge leading to the demise of good
and stable placements and landing children back in

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the foster care system, or at least in litigation. In
spite of these concerns, this Court is bound by case
law and, even though it seems to be a nullification
of the [juvenile] court’s role, must weigh the
evidence as directed.

. . . [G]iven the current state of the case law
and the directive to disregard enhanced stability as
a categorical factor in favor of adoption, [Child’s]
placement with [Grandfather and Grandmother] is
a feasible alternative short of terminating [Mother’s]
rights. Furthermore, they are the only available
placement at this time and they are willing to accept
either adoption or permanent custody and
guardianship. While the Court believes this
outcome to be an unfair prioritization of the desires
of an unfit parent above the best interests of the
child, the Court is bound by the law as it currently
exists. In considering alternative options short of
terminating [Mother’s] rights and in giving full and
careful consideration to all of the facts set forth
above, the Court does believe that it is in the best
interests of [Child] to terminate the parental rights
of [Mother]. However, the Court cannot find by
clear and convincing evidence that it is strictly
necessary to do so.

¶6 Accordingly, the juvenile court denied the petition to
terminate Mother’s parental rights and, instead, vested
permanent legal and physical custody and guardianship of Child
in Grandfather and Grandmother. At the close of its order, the
court indicated that “[a]dditional orders regarding parent time
and child support and other issues pertaining to residual parental
rights [would] be entered at a future date,” but it also specified,
“This is a final order on the State’s [termination petition] and the
Court’s determination of permanent custody and guardianship.

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There will be no further orders after this regarding the parental
rights of [Mother] . . . .”

¶7 The GAL now appeals the juvenile court’s denial of the
termination petition, arguing that the court misapplied the
relevant law in its best-interest determination.

ISSUES AND STANDARDS OF REVIEW

¶8 In response to the GAL’s appeal, Mother argues that this
court does not have appellate jurisdiction because the order
appealed from is not a final order. See Utah R. App. P. 3(a)(1)
(providing for the appeal of “a final order or judgment” of the
juvenile court). We therefore must, as an initial matter, determine
whether we have jurisdiction to adjudicate the GAL’s appeal.
“The question of whether an order is final and appealable is a
question of law.” Powell v. Cannon, 2008 UT 19, ¶ 9, 179 P.3d 799
(footnote omitted).

¶9 As to the merits of the appeal itself, the GAL argues that
the juvenile court misinterpreted the analytical framework for a
best-interest analysis and ignored some of its own findings when
considering the factors bearing on the best-interest analysis. A
best-interest analysis “is a wide-ranging inquiry that asks a court
to weigh the entirety of the circumstances, including a parent’s
past behavior, to determine what is in the best interest of the child
under all of the circumstances,” In re J.M., 2020 UT App 52, ¶ 35,
463 P.3d 66, and “[w]e review deferentially a lower court’s best-
interest determination,” In re J.J.W., 2022 UT App 116, ¶ 18, 520
P.3d 38. However, “when [juvenile] courts have discretion to
weigh factors or balance competing interests, those discretionary
determinations must rest upon sound legal principles. A
misapplication of the law constitutes an abuse of discretion. Thus,
when a legal conclusion is embedded in a [juvenile] court’s
discretionary determination, we peel back the abuse of discretion
standard and look to make sure that the court applied the correct

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law.” In re adoption of M.A., 2024 UT 6, ¶ 10, 545 P.3d 241
(quotation simplified).

ANALYSIS

I. Jurisdiction

¶10 We must first address Mother’s argument that this court
does not have jurisdiction to consider the GAL’s appeal because
the juvenile court’s order was not a final, appealable order. “A
final order is one that ends the current juvenile proceedings,
leaving no question open for further judicial action.” In re S.M.,
2007 UT 21, ¶ 18, 154 P.3d 835 (quotation simplified). However,
“our 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.” Id. Indeed, “the juvenile court
frequently retains jurisdiction over cases after some of the issues
have been finally resolved.” Id.; see also Ross v. Kracht, 2025 UT 22,
¶ 13 (explaining that “juvenile court finality is different from
district court finality” and that this difference stems “from the
unique nature of juvenile court jurisdiction, which often continues
after a final judgment is rendered” (quotation simplified)).

¶11 “For instance, the juvenile court retains jurisdiction over a
child whose custody is awarded in a neglect proceeding, but that
does not mean the neglect adjudication is not final. . . . [A neglect
adjudication is a final order] because it ends the current juvenile
proceedings begun by the [neglect] petition, and is a final factual
determination of the underlying petition.” In re S.M., 2007 UT 21,
¶ 18 (quotation simplified). “On the other hand, shelter orders
and orders denying motions for temporary custody of children
are not final because they make an interim determination pending
additional proceedings.” Id.

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In re N.E.

¶12 Thus, “in appeals from juvenile court, finality is viewed
somewhat more flexibly than in the district court context,” and
“we evaluate appellate finality based on a pragmatic analysis of
the challenged order rather than rigid application of the final
judgment rule.” Ross, 2025 UT 22, ¶ 11 (quotation simplified). “We
take this anomalous approach in the juvenile court context to
honor the considerations specific to child welfare cases: We draw
the definition of an action narrowly because the best interests of
the child outweigh the interests of judicial economy.” Id.
(quotation simplified).

¶13 Here, once Child was adjudicated neglected, “the juvenile
court had exclusive, continuing subject matter jurisdiction over
[Child], and it was free to apply any of the dispositional options
available to it.” In re M.J., 2011 UT App 398, ¶ 50, 266 P.3d 850
(citation omitted). While that broader action was pending, the
State filed a petition seeking to terminate Mother’s parental rights.
The juvenile court’s ultimate denial of that petition entirely ended
the proceedings begun by the termination petition and was “a
final factual determination of the underlying petition.” In re S.M.,
2007 UT 21, ¶ 18 (quotation simplified). The court emphasized this
point by stating that there would “be no further orders . . .
regarding the parental rights of [Mother].” And the additional
issues that remained pending—parent-time, child support, “and
other issues pertaining to residual parental rights”—were not
related to the issue of whether the parental rights of Mother
would be terminated. Instead, these were issues related to the
broader, underlying adjudication action. Thus, the juvenile
court’s order was a final determination as to the State’s
termination petition and qualified as a final, appealable order. We
therefore have jurisdiction to consider the juvenile court’s order
and to address the issue raised in the GAL’s appeal. 3

3. As noted, after issuance of the decision in this case, Mother filed
a petition for rehearing, asserting that this court’s finality
(continued…)

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In re N.E.

¶14 Mother pushes back, arguing that answering the question
on appeal—namely, whether the juvenile court abused its
discretion by determining that termination of her parental rights
was not strictly necessary to promote Child’s best interest—
requires an examination of the particular guardianship
arrangement ultimately ordered by the court, including its
parent-time and child support parameters. Because of that
asserted intertwining of the termination inquiry and the as-yet-
unresolved parent-time and child support inquires, Mother
asserts that the juvenile court’s termination determination is not
final and appealable. Specifically, she says, “[I]t is too early to tell
if the juvenile court erred in determining that the permanent
custody and guardianship . . . can equally benefit and protect
[Child] because, at the time of the appealed order, we did not yet
know what the [permanent custody and guardianship] would

determination ignored operative precedent and erroneously
extended appellate jurisdiction over non-final dispositional
orders. Mother contends that the order denying the State’s
petition to terminate Mother’s parental rights did not effect a
change in Child’s permanent status and is thus not a final order.
Mother is correct that Utah appellate courts have repeatedly
determined that “when the effect of an order is to immediately
implement a change in the permanent status of the child and
requires no further judicial action to be final, the action before the
lower court has concluded and the order may be appealed.” In re
R.P., 2024 UT App 106, ¶ 11, 554 P.3d 1183 (quotation simplified);
see also, e.g., Ross v. Kracht, 2025 UT 22, ¶ 13; In re A.C.M., 2009 UT
30, ¶ 11, 221 P.3d 185; In re A.F., 2007 UT 69, ¶ 6, 167 P.3d 1070.
However, it is well-established that “whether [a juvenile court’s]
order is final and appealable turns on the substance and effect of
an order.” In re R.P., 2024 UT App 106, ¶ 11 (quotation simplified).
Here, “the substance and effect” of the denial order was a final
factual determination of the State’s termination petition, which
ended the controversy between the litigants. Thus, the denial
order is a final appealable order.

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In re N.E.

look like.” Thus, she urges that we “must dismiss the appeal for
lack of finality.” However, Mother has cited no case where
appellate review of a termination decision turned on the contours
of the particular guardianship ultimately ordered. Moreover, our
supreme court has directed that the proper inquiry in response to
a termination petition is “whether a permanent guardianship can
equally protect and benefit the child[] in the case before [us],” In
re J.A.L., 2022 UT 12, ¶ 25, 506 P.3d 606 (emphasis added)
(quotation simplified), not a hindsight determination of whether
the guardianship granted can equally protect and benefit the
child. Accordingly, we reject Mother’s proposed approach to
finality in this context and, instead, note that the juvenile court’s
final orders setting the contours of the guardianship in this matter
may be separately appealed.

II. The Best-Interest Analysis

¶15 “To terminate parental rights, a juvenile court must make
two separate findings. First, it must find that there are grounds
for termination under Utah Code subsection 80-4-301(1).[4] . . .
Second, . . . it must find that termination of parental rights is
strictly necessary to promote the child’s best interest.” In re A.H.,
2024 UT 26, ¶ 31, 554 P.3d 969 (quotation simplified); see also Utah
Code § 80-4-104(12)(a) (“[I]f a parent is found, by reason of the
parent’s conduct or condition, to be unfit or incompetent based
upon any of the grounds for termination described in this part,
the juvenile court shall then consider the welfare and best interest
of the child of paramount importance in determining whether
termination of parental rights shall be ordered.”); id. § 80-4-
104(12)(b) (providing that “determining whether termination is in
the best interest of the child” includes “finding, based on the
totality of the circumstances, that termination of parental rights,
from the child’s point of view, is strictly necessary to promote the
child’s best interest”). “As part of the strictly necessary

4. No party challenges the juvenile court’s determination that
several grounds for termination were proved here.

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In re N.E.

determination, the juvenile court must explore whether other
feasible options exist that could address the specific problems or
issues facing the family, short of imposing the ultimate remedy of
terminating the parent’s rights. If the child can be equally
protected and benefited by an option other than termination,
termination is not strictly necessary.” In re A.H., 2024 UT 26, ¶ 32
(quotation simplified); see also Utah Code § 80-4-104(12)(b)(ii)
(stating that one factor the juvenile court must consider in its
strictly necessary determination is whether “due weight” was
given to “the efforts to place the child with a relative who has, or
is willing to come forward to care for the child”).

¶16 The GAL argues that, in two respects, the juvenile court
misinterpreted and misapplied this analytical framework. First,
the GAL asserts that the juvenile court construed the “strictly
necessary” determination “as a separate and decisive element,” as
opposed to it being a part of the best-interest determination.
Second, the GAL asserts that “the juvenile court erroneously
ignored its own findings going to Child’s heightened need for
stability out of an erroneous belief that it could not consider the
benefits of adoption as applied to Child’s particularized needs.”
We agree that the juvenile court misapplied the law relevant to its
best-interest determination.

¶17 On the first point, we agree that there is at least some
indication in the juvenile court’s order that the court incorrectly
considered the strictly necessary determination to be separate
from the best-interest determination. As we have previously
recognized, “a court’s inquiry into the strict necessity of
termination should take place as part of the best-interest inquiry
that comprises the second part of the termination test.” In re J.J.W,
2022 UT App 116, ¶ 28, 520 P.3d 38. But the very structure of the
court’s order gives the impression that the two were considered
as separate questions, addressing best interest and strict necessity
in entirely separate sections. Additionally, the court made several
statements indicating that it believed Child’s best interest was
served by terminating Mother’s parental rights and, thus, making

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Child available for adoption, but it then denied the State’s
termination petition anyway because it thought the strictly
necessary determination “sp[oke] against it.”

¶18 On the second point, it is quite clear that the juvenile court
incorrectly subordinated its findings related to Child’s increased
stability needs based upon its misunderstanding of appellate case
law. In its decision, the juvenile court discussed the troubling
dynamic that it had seen in its interactions with Mother (and that
it anticipated would continue to occur in the future) wherein
Mother used her position to create “conflict and triangulation.”
Due to this situation, the court considered Child to have a “need
for enhanced stability and protection from conflict.” However, the
court also noted that “appellate courts have made determinations
reflecting how much weight should be assigned to certain
[factors].” Based on this, the court then reasoned that these factors
were outweighed by “the fact that [Child] is with relatives who
are willing to accept permanent custody and guardianship and
who believe, at least at this moment, that they can work
cooperatively with [Mother].” The court therefore concluded that
notwithstanding its determination that there was a heightened
need for control and stability in Child’s life, and a heightened
probability that Mother’s conduct going forward would likely
undermine the guardians’ control and efforts to provide stability,
“prevailing case law has deemed these factors to be ‘categorical,’
and [has] specifically rejected them when used in favor of
adoption.” We agree with the GAL that this is an incorrect
expression of Utah law and does not accurately reflect the extent
to which stability concerns may appropriately factor into a best-
interest analysis.

¶19 In In re J.A.L., 2022 UT 12, 506 P.3d 606, the Utah Supreme
Court determined that the juvenile court erred when it rejected a
permanent guardianship “on the ground that it would not offer
the same degree of permanency as an adoption, given that a
permanent guardianship could be terminated at the request of the
guardian or at least subject to visitation by the father.” Id. ¶¶ 23–

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In re N.E.

24 (quotation simplified). The supreme court acknowledged that
“[a] permanent guardianship by definition does not offer the
same degree of permanency as an adoption” but noted that “[i]f
these categorical concerns were enough, termination and
adoption would be strictly necessary across the board.” Id. ¶ 24.
The supreme court concluded, “[The relevant] standard is not met
by the categorical concern that a permanent guardianship is not
as stable or permanent as an adoption. It requires analysis of the
particularized circumstances of the case before the court.” Id. ¶ 25.

¶20 More recently, the supreme court has provided further
explanation regarding In re J.A.L., describing the language used in
that opinion as “caution[ing] juvenile courts against relying on the
categorical benefits of adoption—i.e., greater stability and
permanency—in the best interest analysis.” In re D.S., 2025 UT 11,
¶ 49, 568 P.3d 1060 (quotation simplified). But the supreme court
clarified that it has “never precluded juvenile courts from taking
the differences between permanent guardianship and adoption
into account, so long as the reasoning is case specific.” Id. ¶ 50
(quotation simplified); see also In re A.H., 2024 UT 26, ¶ 69, 554 P.3d
969 (“In re J.A.L. did not prohibit courts from taking the
differences between permanent guardianship and adoption into
account when making the termination decision. These categorical
differences cannot be dispositive in and of themselves, but they
can be one of the many factors evaluated in the particularized best
interest analysis.”). And the supreme court, in considering the
specific juvenile court order before it in that case, emphasized that
“the juvenile court’s recognition of the children’s particular need
for the stability that adoption by [the grandmother] would
provide was a valid, individualized ground for the court’s best
interest determination.” In re D.S., 2025 UT 11, ¶ 51.

¶21 Thus, the juvenile court here incorrectly determined that it
could not consider the case-specific reasoning wherein it found
that Child, due to past circumstances in this case, had a need for
“enhanced stability and protection from conflict” and that this
specific need was best served under the circumstances of this case

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by the permanency of termination and adoption. Several of the
court’s case-specific subsidiary findings supported this
assessment: (1) Mother “is more likely to comply with boundaries
. . . when she is sober” but “is deceitful, evasive, volatile and non-
compliant” when “she is engaged in substance use”; (2) “there is
a strong likelihood that [Mother] will relapse”; and (3) “[i]f this
occurs, it will pose significant risk and difficulties for
[Grandfather], [Grandmother,] and [Child].” And so long as the
court’s reasoning regarding stability and permanency was case-
specific and based on the specific needs of Child, the categorical
differences between adoption and permanent guardianship could
be considered as part of the court’s best-interest analysis. 5

5. Mother argues that any error the juvenile court made is
harmless here because the court subsequently denied the GAL’s
rule 60(b) motion for relief from judgment, which pointed out the
supreme court’s later clarification of the In re J.A.L. language.
Mother argues that we know from this second denial that “the
juvenile court has considered the grounds on which this [c]ourt
would reverse and saw no reason to change its ruling.”
But the juvenile court’s denial of the motion was not based
on a reconsideration of its best-interest analysis when taking the
clarified In re J.A.L. language into account. Instead, the denial was
based on the juvenile court’s reasoning that, notwithstanding the
later supreme court clarification, “no prior judgment has been
reversed that affects the [c]ourt’s legal analysis in the order,
making the motion improperly before the court under rule
60(b)(5).” See Utah R. Civ. P. 60(b)(5) (providing that a court may
relieve a party from an order where “a prior judgment upon
which it is based has been reversed or vacated”). We cannot infer
from this what the court would decide if allowed to conduct the
best-interest determination anew, while considering its case-
specific reasoning for Child’s need for “enhanced stability and
protection from conflict.”

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¶22 Although we agree with the GAL that the juvenile court
misapplied the law when conducting its best-interest analysis, we
do not agree with the GAL’s further argument that, had the
juvenile court not so erred, it “would have been compelled to
grant the termination petition.” In reviewing the various facts
found by the court, it is simply not clear to us what the court’s
ultimate decision would have been had it not misinterpreted the
law—that is, it is at least somewhat questionable whether the
court would have determined by clear and convincing evidence
that termination was strictly necessary to promote Child’s best
interest. See generally In re A.H., 2024 UT 26, ¶ 31 (“All of these
findings [underlying the termination of parental rights] must be
made by clear and convincing evidence.”). Our uncertainty here
rests on the fact that while the court made plain that it thought
adoption was ideal for Child, the court could not allow both
Grandfather and Grandmother to adopt Child.

¶23 Under Utah law, “it is not in a minor child’s best interest to
be adopted by a person or persons who are cohabiting in a
relationship that is not a legally valid and binding marriage under
the laws of this state.” Utah Code § 81-13-202(4)(a). Accordingly,
Grandfather and Grandmother may not both adopt Child due to
their nonmarried status. In light of this reality, it is not clear that
the juvenile court would have determined adoption to be in
Child’s best interest. 6 The juvenile court’s findings reflect that

6. The GAL argues that the juvenile court did consider this fact
when making its ultimate determination. While we agree that the
court did note in its lengthy order both the unmarried status of
Grandfather and Grandmother and the fact Grandfather was “the
proposed adoptive placement of the State,” the court also found
that “[a]doption would put [Grandfather] and [Grandmother] in
firm control” and that “they are willing to adopt.” Thus, we are
not entirely convinced that the couple’s unmarried status was
consistently taken into account in all of the court’s findings and
conclusions.

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In re N.E.

while Grandfather is involved in making important decisions
regarding Child’s care and has “a good relationship” with Child,
it is Grandmother that “does most of the caretaking of [Child]”
and has the closer relationship with her. Indeed, the juvenile court
remarked that the fact that Grandfather did not even testify at the
termination trial was “curious.” Additionally, the court made
many positive findings specifically in regard to Grandmother and
her beneficial impact on Child’s life, such as (1) that Child trusts
her and opens up to her, (2) that she and Child “communicate well
together,” (3) that she has been “teaching [Child] coping skills to
manage what is happening in her life,” and (4) that due to past
events specific to her, she “feels confident that she will know if
[Mother] resumes using drugs” and visitation with her
consequently becomes less safe.

¶24 Where the court’s findings both focused on the positive
impact of Grandmother on Child’s life and considered that
relationship particularly important to provide “the highest level
of stability and legal protection for [Child’s] permanent
placement,” and where adoption by both Grandfather and
Grandmother is simply not an option, we are uncertain whether
the juvenile court would have determined, by clear and
convincing evidence, that permanent custody and guardianship
(which can reside in both Grandfather and Grandmother) would
not equally protect and benefit Child—and her enhanced need for
stability—as would the option of adoption only by Grandfather.

¶25 Furthermore, even if we did agree with the GAL that “the
unchallenged findings can only support one outcome” (which, to
be clear, we do not), Utah law would preclude our applying the
remedy that the GAL requests—that we “order the juvenile court”
to terminate Mother’s parental rights. Such a resolution is at odds
with the recent relevant precedent established by In re Z.C.W.,
2021 UT App 98, 500 P.3d 94. There, the juvenile court, when
considering a petition filed by a mother to terminate the father’s
parental rights in their children, had concluded that there were
statutory grounds for termination but that termination had not

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In re N.E.

been shown to be in the best interest of the children. See id. ¶ 4.
This court thereafter determined on appeal “that the juvenile
court’s best-interest analysis was materially flawed” because it
had failed to consider the father’s “history of domestic violence
toward other adults” as applicable to the analysis. Id. ¶ 5
(quotation simplified). We therefore vacated the juvenile court’s
denial of the termination petition and “remanded for the juvenile
court to reconsider its best-interest inquiry,” specifically
instructing the court “to adequately consider all of the proper
factors.” Id. (quotation simplified).

¶26 Upon remand, the juvenile court renewed its best-interest
analysis, this time considering the father’s history of domestic
violence as part of that analysis, and the court again concluded
that it had not been shown that the termination of the father’s
parental rights would be in the children’s best interest. See id. ¶ 7.
However, the court made its renewed assessment based on the
evidence presented at the trial two years prior, and it refused to
“consider[] any evidence regarding events that allegedly occurred
between” the time of the trial and the time of the renewed
assessment. Id. ¶¶ 6–7. The mother and the children’s guardian ad
litem thereafter “asked the court for a new trial, contending that
the court should re-open the evidence because it was impossible
for the court to properly consider best interest without
considering evidence of events that ha[d] occurred in the two and
a half years since the trial.” Id. ¶ 8 (quotation simplified). The
juvenile court denied the motions, and the mother again
appealed. See id. ¶¶ 8–9.

¶27 In the second appeal, this court noted that “the best-
interest inquiry requires courts to examine all of the relevant facts
and circumstances surrounding the child’s situation,” that “a
child’s best interest can be determined only by considering the
physical, mental, or emotional condition and needs of the child,”
and that “considerations regarding a child’s welfare are rarely, if
ever, static.” Id. ¶¶ 11–12 (quotation simplified). We also
reiterated that the court’s focus is “firmly fixed on finding the

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In re N.E.

outcome that best secures the child’s well-being” and that,
therefore, “concerns about judicial economy” do not “limit the
scope of the best-interest inquiry.” Id. ¶ 11 (quotation simplified).
“For these reasons,” we continued, “the best-interest inquiry is
generally to be conducted in present-tense fashion, with the
effective date of the inquiry being the date of the hearing, trial, or
other judicial determination. In a best-interest inquiry, the
relevant question is almost always this one: what outcome is in
the child’s best interest now?” Id. ¶ 12. We then concluded as
follows:

[A] proper best-interest inquiry requires evaluating
all relevant past and present circumstances bearing
on a child’s welfare as of the date of the proceeding.
Where an appellate court remands a case for a
[juvenile] court to redo its best-interest analysis, that
analysis should generally be conducted as of the
date of the post-remand proceedings, and the court
must consider, in some fashion, any new evidence
proffered by the parties.

Id. ¶ 19.

¶28 Therefore, based on In re Z.C.W. and its very similar factual
pattern, we have no hesitation in stating that the best-interest
determination upon remand should be approached in a present-
tense fashion, evaluating what outcome is currently in Child’s
best interest.

¶29 The GAL, however, argues that In re Z.C.W. is not
applicable here because the GAL has not challenged any factual
findings on appeal. The only authority that the GAL cites in
support of its position that we may order termination here is In re
G.J.C., 2016 UT App 147, 379 P.3d 58, abrogated by In re B.T.B., 2018
UT App 157, 436 P.3d 206. In that case, this court determined,
“The juvenile court’s oral and written findings as they stand can
support only a best-interest determination that termination is

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In re N.E.

appropriate.” Id. ¶ 32 (quotation simplified). We concluded that
the juvenile court’s determination to the contrary was “against the
clear weight of the evidence, and le[ft] this court with a firm
conviction that a mistake ha[d] been made.” Id. ¶ 33. And we
accordingly “reverse[d] the juvenile court’s decision not to
terminate” and “remand[ed] with the directive to enter an order
consistent with [the appellate] opinion.” Id.

¶30 In re G.J.C., however, was later abrogated by In re B.T.B.,
2018 UT App 157, 436 P.3d 206. There, this court recognized that
prior appellate cases (including In re G.J.C.) had incorrectly
extended a statement applicable to child abandonment cases to
“categorically declare[] that where grounds for termination are
established, the conclusion that termination will be in a child’s
best interest follows almost automatically.” Id. ¶ 20 (quotation
simplified). We explained that the unwarranted reliance on the
“almost automatically” language had, “subtly but meaningfully,
shifted the burden of proof in termination of parental rights
cases,” imposing an extra burden on parents that was “contrary
to statutory command.” Id. ¶ 31. Further, we determined that the
prior cases applying the “almost automatically” language were
“inconsistent with the relatively new statutory language that
allows termination of parental rights only when it is strictly
necessary to do so.” Id. ¶ 32 (quotation simplified). Thus, we are
unconvinced that In re G.J.C., which essentially employed an
unwarranted presumption of termination once grounds for
termination were established, supports the GAL’s assertion that
we can instruct the juvenile court to order the termination of
Mother’s parental rights here.

¶31 Hence, based on the above analysis, we reverse the juvenile
court’s denial of the termination petition, and we remand this case
for the juvenile court to reassess whether the termination of
Mother’s parental rights is strictly necessary to promote Child’s
best interest—this time considering the strictly necessary analysis
as part of the overall best-interest determination, as well as
considering any case-specific reasoning related to stability or

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In re N.E.

permanency as part of that analysis. And this reassessment of
Child’s best interest should be made in present-tense fashion, as
of the time of the proceedings on remand.

CONCLUSION

¶32 Because the GAL’s appeal is taken from a final order of the
juvenile court, we have jurisdiction in this matter. And because
the juvenile court misapplied the law underlying its best-interest
determination, we reverse the court’s order and remand for a new
best-interest determination consistent with this opinion.

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