In re E.R.

2019 UT App 208
THE UTAH COURT OF APPEALS
S TATE OF U TAH , IN THE INTEREST OF E.R.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.
J.R.,
Appellant,
v.
S TATE OF U TAH ,
Appellee.
Opinion
No. 20190184-CA
Filed December 19, 2019
Fourth District Juvenile Court, Provo Department
The Honorable F. Richards Smith
No. 1012098
Margaret P. Lindsay, Attorney for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
JUDGE M ICHELE M. C HRISTIANSEN F ORSTER authored this Opinion,
in which J UDGES GREGORY K. O RME and K ATE A PPLEBY concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 	J.R. (Mother) appeals the juvenile court’s termination of
her parental rights to E.R. We affirm.
BACKGROUND
¶2 	The Division of Child and Family Services (DCFS) has
been involved with Mother and her family on and off since 2008.
Between 2008 and Mother’s termination trial in 2018, DCFS

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made multiple supported findings of environmental neglect
against both Mother and her husband (Father) with respect to
their 	three 	children, 	as 	well 	as 	findings 	of 	emotional
maltreatment, emotional abuse, domestic-violence abuse, and
physical abuse against Father.
¶3 	E.R. is the youngest of Mother’s three children and was
eleven years old at the time of Mother’s termination trial. E.R.
“has 	been 	diagnosed 	with 	behavioral 	and 	emotional
dysregulation, secondary post-traumatic stress disorder (PTSD),
mood disorder and Asperger’s.” E.R. has severe behavioral
problems, including aggression and suicidal ideation.
¶4 	Mother and Father divorced in 2013. “The current case
was initiated in January 2016 when DCFS supported a finding of
dependency 	against 	the 	parents 	as 	to” 	E.R. 	after 	he 	was
hospitalized twice in the course of a month. The Utah State
Hospital accepted E.R. for admission but eventually withdrew
its 	placement 	offer 	after 	Father 	refused 	to 	consent 	to 	his
hospitalization. 	Subsequently, 	DCFS 	sought 	and 	obtained 	a
warrant to take E.R. into protective custody. The juvenile court
awarded legal custody and guardianship of E.R. to DCFS and set
concurrent 	goals 	for 	E.R. 	of 	reunification 	with 	Mother 	or
permanent custody and guardianship with a relative.1 DCFS first
placed E.R. at the Utah State Hospital and later placed him with
a foster family. On November 30, 2016, the court terminated
reunification services after finding that neither parent was in
substantial compliance with the reunification plan. The court
then “set a primary goal of adoption with a concurrent goal of
permanent custody and guardianship.” On September 28, 2017,
the State filed a petition to terminate Mother’s and Father’s
1. E.R.’s two older siblings continued to reside with Mother until
they 	were removed in 	October 	2016 	as a 	result 	of several
incidents of abuse and neglect by Mother.

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parental rights, which was later bifurcated. The court terminated
Father’s parental rights following a trial in March 2018.
¶5 	Mother’s 	termination 	trial 	was 	held 	in 	August 	and
November 2018, following which the court terminated Mother’s
parental rights. The court found that Mother had made “some
progress” in therapy but that she “continues to minimize her
own issues and the role she played in the difficulties in her
home.” The court attributed her progress “partly to her years of
treatment, and partly to the fact that she has not been parenting
[E.R.] for the last three years.” It further found that although E.R.
and Mother are bonded and have had appropriate contact in
their bi-weekly visits, Mother “does not possess the skills needed
to effectively parent [E.R.] over time.” The court found grounds
for termination based on its determination that Mother is “an
unfit or incompetent parent,” that there had “been a failure of
parental adjustment,” and that Mother had not remedied the
circumstances causing E.R. to be in an out-of-home placement
and was unlikely to be capable of exercising proper parental care
in 	the 	future. 	See 	Utah 	Code 	Ann. 	§ 	78A-6-507(1)(c)–(e)
(LexisNexis 2018).
¶6 	The court found that E.R. had made “significant progress”
through 	the 	“intense 	treatment 	he 	received 	at 	the 	State
Hospital,” “ongoing treatment,” and the skills and efforts of his
foster family. It found that E.R. was “bonded with his mother,
and desires to have ongoing contact with her,” and that the
“foster parents are supportive of appropriate ongoing contact
between [E.R.] and his now-adult siblings, and between [E.R.]
and his mother, and have encouraged such contact.” The court
believed that “[i]f the foster parents were to adopt [E.R.,] they
would continue to support that contact as long as it is healthy for
[E.R.] and in his best interest.”
¶7 	The court found that it was in E.R.’s best interest to be
adopted by the foster parents. It observed that E.R. “has a

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particular aversion to anything court related” and that court
proceedings cause him significant distress. For this reason, the
court determined that E.R. “has a significant need for stability in
his 	placement” 	and 	that 	awarding 	permanent 	custody 	and
guardianship 	to 	the 	foster 	parents, 	rather 	than 	terminating
Mother’s rights and permitting him to be adopted, “would be
detrimental to [him], and deny him the sense of permanency and
stability that he so desperately needs.” The court therefore
determined 	that 	terminating 	Mother’s 	parental 	rights 	was
strictly necessary to further E.R.’s best interest. Mother now
appeals the court’s termination decision.
ISSUE AND STANDARD OF REVIEW
¶8 	“The ultimate decision about whether to terminate a
parent’s rights presents a mixed question of law and fact.” In re
B.T.B., 2018 UT App 157, ¶ 8, 436 P.3d 206 (quotation simplified),
cert. granted, 440 P.3d 692 (Utah 2019). We review the court’s
factual findings for clear error and its legal conclusions for
correctness, “affording the court some discretion in applying the
law to the facts.” Id. (quotation simplified). Ultimately, due to
“the factually intense nature” of a termination decision, “the
juvenile court’s decision should be afforded a high degree of
deference,” and we should overturn it only if the result is
“against the clear weight of the evidence” or leaves us “with a
firm and definite conviction that a mistake has been made.”2 In
re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435 (quotation simplified).
2. Mother challenges this standard of review, asserting that
appellate courts should take a more active role in examining the
correctness of a juvenile court’s decision regarding termination
of parental rights in light of the important constitutional rights
involved. She asserts that the “standard of review that has
developed over time in termination of parental rights cases is so
(continued…)

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ANALYSIS
¶9 	Mother 	argues 	that 	the 	juvenile 	court 	exceeded 	its
discretion 	in 	terminating 	her 	parental 	rights. 	In 	assessing
whether termination of parental rights is appropriate, a court
must engage in a “two-part test.” In re B.T.B., 2018 UT App 157,
¶ 13, 436 P.3d 206, cert. granted, 440 P.3d 692 (Utah 2019). “First, a
trial court must find that one or more of the statutory grounds
for termination are present,” and second, “a trial court must find
(…continued)
deferential to the decision of the juvenile courts that . . . no
longer do these decisions concern mixed questions” and that the
standard of review “takes any responsibility and power in these
mixed questions of law and fact away from the appellate court
and affords total power and discretion to the individual juvenile
courts around the State.” Mother urges us to reexamine the
correct “spectrum of deference” for parental termination cases in
light of the factors outlined by our supreme court in State v.
Levin, 2006 UT 50, 144 P.3d 1096. Id. ¶¶ 25, 28.
However, 	we 	are 	not 	in 	a 	position 	to 	overturn 	the
supreme court’s articulated standard of review, see State v.
Tenorio, 2007 UT App 92, ¶ 9, 156 P.3d 854 (“Vertical stare decisis
compels a court to follow strictly the decisions rendered by a
higher court.” (quotation simplified)), which instructs us to
afford the juvenile court’s termination decision “a high degree of
deference,” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435. Moreover,
we have previously 	rejected the assertion that due process
requires a more stringent standard of review in termination
cases, In re S.Y.T., 2011 UT App 407, ¶¶ 31–37, 267 P.3d 930,
reaffirming 	the 	principle 	that 	the 	juvenile 	court’s 	superior
opportunity to make witness-credibility determinations entitles
it to a high degree of deference and that we should overturn
termination decisions only “if the clear weight of that evidence is
against the juvenile court’s determination,” id. ¶¶ 36–37.

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that termination of the parent’s rights is in the best interests of
the child.” Id. (quotation simplified). Mother does not contest the
juvenile court’s determination that grounds existed to support
termination, but she maintains that termination was not in E.R.’s
best interest.
¶10 	“[A] parent’s right to raise her child is a fundamental
right, and although courts must view the ‘best interest’ element
from the perspective of the child, in so doing courts should not
forget the constitutional dimension of the parental rights on the
other side of the ledger.” Id. ¶ 55. “[A]s part of the ‘best interest’
analysis required by the second element of the two-part test,
along with all of the other facts and circumstances relevant to the
case, trial courts should analyze whether termination of a child’s
parent’s rights is ‘strictly necessary.’” Id. ¶ 50; see also Utah Code
Ann. § 78A-6-507 (LexisNexis 2018) (“Subject to the protections
and requirements of Section 78A-6-503, and if the court finds
strictly necessary, the court may terminate all parental rights with
respect to a parent if the court finds any one of the following
[statutory factors] . . . .” (emphasis added)). An assessment of
whether termination is strictly necessary “requires courts to
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.” In re B.T.B., 2018 UT App 157, ¶ 55. “[I]f there is a
practical way to keep parents involved in the children’s lives
that is not contrary to the children’s best interests, a court should
seriously consider such an option.” Id. “After this consideration,
if a juvenile court determines that no such alternatives are
available 	or 	articulates 	supported 	reasons 	for 	rejecting
alternatives that do exist, such findings are entitled to deference
on appeal.” In re C.T., 2018 UT App 233, ¶ 16, 438 P.3d 100.
¶11 	Mother asserts that the court did not adequately explore
the feasibility of granting permanent custody and guardianship
to the foster parents while permitting her to continue having

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visitation rights. First, she points to the court’s observation that
“the only issue before the Court in this matter is whether
parental rights should be terminated” and that “[q]uestions of
. . . potential permanent custody and guardianship . . . are not
even before the Court at this time.” Mother contends that this
statement demonstrates that the juvenile court misunderstood its
duty to examine the feasibility of alternatives to termination.
However, 	in 	context, it 	is clear 	that the court 	was merely
explaining its inability to make a final ruling on other options at
the time of the termination trial. The court further clarified,
“[C]ertainly if parental rights are not terminated, it does not
mean an automatic change in status. In fact, all it means is status
quo until further decision by the Court. . . . I just didn’t want
anyone to have false expectations regarding the outcome of this
trial either way.” And the court’s written findings ultimately did
address the feasibility of alternatives in the context of its best
interest analysis.
¶12 	The 	court 	found 	that 	E.R. 	is 	an 	autistic 	child 	with
significant 	behavioral 	issues. 	He 	“has 	been 	diagnosed 	with
behavioral 	and 	emotional 	dysregulation, 	secondary 	post-
traumatic 	stress 	disorder 	(PTSD), 	mood 	disorder 	and
Asperger’s.” His behavioral issues require his foster parents to
“respond to [his] emotional dysregulation . . . , sometimes
multiple times a day, and help him work through it, get back to
rational thinking, and avoid escalation.” The court found that
E.R. was “weary” of “DCFS and court involvement” and that
“[p]articipation in court proceedings of any kind causes him
distress, to the point that he doesn’t even want to be aware of
when court hearings will occur.” The court found that E.R.
“needs the stability and peace that would come with closure of
the DCFS case and a permanent end to court involvement.” In
light 	of 	E.R.’s 	specific 	needs 	and 	his 	aversion 	to 	court
involvement, the court concluded, “[E.R.] has a significant need
for stability in his placement. He needs to know where he’s
going to stay, and who will be his permanent caretaker.” The

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court further concluded that “[a]warding permanent custody
and guardianship of [E.R.] to his foster parents . . . would leave
open the specter of repeated court involvement in the form of
orders to show cause, motions, hearings, and so forth, related to
visitation compliance issues, visitation modification requests,
etc.” and that this would be “detrimental to [E.R.], and deny him
the sense of permanency and stability that he so desperately
needs.”
¶13 	Mother 	challenges 	these 	findings, 	asserting 	that 	E.R.
would not need to be told about future court proceedings and
that it was by no means certain that further court proceedings
would 	actually 	occur 	once 	an 	order 	of 	guardianship 	and
visitation 	was 	entered. 	But 	Mother’s 	challenges 	do 	not
demonstrate that the juvenile court’s findings were against the
clear weight of the evidence. Having examined the specific
circumstances of this case and the individual needs of E.R., the
court 	concluded 	that 	even 	the 	“specter” 	of 	future 	court
involvement was detrimental to E.R. And even if a concerted
effort were made to shield E.R. from knowledge about court
dates, 	there 	is 	no 	guarantee 	that 	such 	efforts 	would 	be
successful, especially if a contentious order to show cause or
petition to modify were filed in the future. See In re J.P., 921 P.2d
1012, 	1019 	(Utah 	Ct. 	App. 	1996) 	(discussing 	the 	nature 	of
permanent guardianship and its lack of finality).
¶14 	Although we have previously made it clear that the need
for permanency “does not, by itself, establish that termination is
in a particular child’s best interest,” In re D.R.A., 2011 UT App
397, ¶ 14, 266 P.3d 844, the court’s emphasis of E.R.’s need for
permanency in this case was reasonable. The court did not rely
on the general desirability of permanency but on E.R.’s personal
need for permanency in light of his significant psychological
issues and his particular aversion to anything court-related.
These 	articulated 	reasons 	for 	rejecting 	the 	feasibility 	of
permanent guardianship were supported by the evidence and

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are entitled to deference. See In re C.T., 2018 UT App 233, ¶ 16.
Thus, we decline to disturb the juvenile court’s finding that
termination 	of 	Mother’s 	parental 	rights 	was 	in 	E.R.’s 	best
interest.
CONCLUSION
¶15 	The juvenile court adequately examined the feasibility of
alternatives to terminating Mother’s parental rights in assessing
E.R.’s best interest, and its finding that termination was strictly
necessary was not against the clear weight of the evidence.
Accordingly, 	we 	affirm 	the 	juvenile 	court’s 	termination 	of
Mother’s parental rights.