In re J.J.W.

2022 UT App 116
THE UTAH C OURT OF APPEALS
S TATE OF U TAH , IN THE INTEREST OF J.J.W.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.
M.E.S. AND D.C.S.,
Appellees,
v.
J.V.W.,
Appellant.
Opinion
No. 20210706-CA
Filed October 14, 2022
Eighth District Court, Vernal Department
The Honorable Samuel P. Chiara
No. 163800064
Alexandra Mareschal, Attorney for Appellant
John D. Hancock, Attorney for Appellees
JUDGE R YAN M. HARRIS authored this Opinion, in which
JUDGES M ICHELE M. C HRISTIANSEN F ORSTER and DAVID N.
M ORTENSEN concurred.
HARRIS, Judge:
¶1 	J.J.W.’s (Child) maternal grandmother (Grandmother) and
her husband filed a petition for adoption of Child, along with a
petition seeking the termination of the parental rights of child’s
father, J.V.W (Father). After a bench trial, the district court found
that multiple statutory grounds for termination were present, and
that it was in Child’s best interest for Father’s rights to be
terminated. 	Father 	now 	appeals 	the 	court’s 	best-interest
determination, 	asserting 	that 	the 	court’s 	analysis 	was, 	at 	a
minimum, incomplete, because the court did not adequately
consider other possible options short of termination. We agree

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with Father, and therefore vacate the court’s termination order
and remand for further proceedings consistent with this opinion.
BACKGROUND
¶2 	Child—who was born in 2011—lived with his mother
(Mother), his half-brother (Brother, who was Mother’s child from
a previous relationship), and Father in Vernal, Utah without
relevant incident until 2016. By that point, Father and Mother—
who both had a history of involvement with illegal drug use—had
relapsed, and they made the voluntary decision to have both boys
(collectively, the Children) go and live with Grandmother while
they made an effort to get clean. They made this decision, in part,
because they preferred to make their own choice regarding
placement of the Children, and because they wished to avoid
involving the state’s Division of Child and Family Services, which
they feared might separate the Children. They agreed to the entry
of a court order placing the Children in the guardianship of
Grandmother and a maternal uncle (Uncle). The guardianship
order gave Father and Mother the right to three hours of parent-
time each week. The general idea behind the guardianship—
apparently shared by all involved at the time—was that the
Children would be returned to Father and Mother if they were
able to get clean. Indeed, Mother stated that, in her view, “the
guardianship was more of a safety net” in case she and Father
relapsed again.
¶3 	Father and Mother made genuine efforts to improve their
situation and, just a few months later, toward the end of 2016,
Grandmother returned the Children to Father and Mother. For
about the next year, the Children lived with Father and Mother
without apparent incident.
¶4 	Toward the end of 2017, however, Father and Mother
relapsed again, and this led to problems in the home. For instance,

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living conditions in the home had become substandard—the
district court later found, in an unchallenged finding, that “the
home was in [an] uninhabitable condition”—and the Children
were missing a lot of school. On January 1, 2018, the Children
returned to Grandmother’s care, with the previous guardianship
arrangement still in place. Father believed that, if he and Mother
“could get some clean time, [they] would get the [C]hildren back”
as they had before.
¶5 	In 2018, shortly after the Children went to live with
Grandmother for the second time, Father was charged with drug
crimes and spent several months incarcerated. After his release,
Father entered a sixty-day inpatient drug rehabilitation program
in the Salt Lake area. After that, Father spent four months in “day
treatment,” during which time he spent some six hours per day in
a combination of drug treatment programs and therapy. He then
spent another few months in a nearby “sober living” situation,
which included “aftercare” sessions with his treatment provider.
He 	“coined 	out 	of 	all 	three” 	programs, 	meaning 	that 	he
successfully completed them at the “highest” level; indeed, the
district court later found that Father had “graduated with high
honors from his drug treatment programs.” He was also released
from court-supervised probation some two years early, because
the judge overseeing his criminal case recognized that Father had
“satisfactorily complied with the conditions of” his probation.
¶6 	During this time, however, Father had no contact—even
telephonic or written contact—with Child at all. And Father did
not attempt to make any financial contribution toward Child’s
care and well-being. At one point during his therapeutic process,
Father reached out to Grandmother via text message to “let [her]
know where [he] was in [his] therapy,” but received no reply.
¶7 	In February 2020, after completing his drug treatment
programs, Father moved back to Vernal because he “wanted to be
closer 	to 	where 	the 	kids 	were.” 	At 	this point, 	Father 	was

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apparently 	clean 	and 	drug-free, 	but 	was 	still 	working 	on
obtaining a job and permanent housing. He reached out to
Grandmother, in an attempt to start the process of reunifying with
Child, but Grandmother resisted these efforts, telling him that
“nothing was going to change” and that he was not allowed to see
or even send gifts to the Children. Grandmother eventually
stopped responding to Father’s messages.
¶8 	In 	August 	2020, 	Grandmother 	and 	her 	husband
(Grandparents) filed a petition to terminate all parents’ rights to
the Children, including—as relevant to this appeal—Father’s
rights with regard to Child.1 Soon after receiving notice of the
petition, Father moved to intervene in the case, and in addition
filed a motion seeking to assert his three-hour-per-week parent-
time that the 2016 guardianship agreement allowed. The court
granted Father’s motion to intervene but, upon Grandparents’
request, deferred the hearing on Father’s motion for parent-time
and decided to combine it with the termination trial. As a result,
Father was not afforded any parent-time during the pendency of
the case, and by the time of trial he had not seen Child for over
three years (since January 2018).
¶9 	The district court held a one-day trial in August 2021 to
consider Grandparents’ petition. At trial, Grandparents testified
and presented testimony from Uncle, Uncle’s wife, and Father. In
addition to presenting his own testimony, Father called Mother as
a witness, as well as his own mother; he also attempted to call his
current girlfriend, with whom he was living at the time of trial,
but the court refused to allow her to testify because Father failed
to list her in his pretrial disclosures.
1. Specifically, the petition sought to terminate Mother’s rights to
both Children, Father’s rights to Child, and also the rights of
Brother’s father to Brother.

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¶10 	Grandmother testified that she considers the Children to
be her own, believes they have a strong sibling bond, and feels
that adoption is in their best interest because they “need and
deserve [the] stability of a good home.” Grandmother described
the developmental delays Child was experiencing when he first
came to live with her, explaining how he had trouble regulating
his emotions and using his motor skills. She testified about how
she is still working with Child to improve his motor skills by
making him practice his handwriting and by playing Legos with
him. And she testified that Child had never indicated any desire
to have contact with Father and that whenever the possibility is
mentioned 	“[h]e 	withdraws 	into 	himself,” 	“rubs 	his 	hands
together in a nervous motion,” and “just kind of shuts down.”
¶11 	Grandmother’s 	husband 	testified 	that 	he 	and
Grandmother were financially able to provide for the Children
and 	that 	the 	boys 	shared 	a 	close 	sibling 	bond. 	On 	cross-
examination, he stated that he was open to letting Child see
Mother and Father even if the adoption were approved, but also
offered his view that it was in Child’s best interest for Child “to
stay at my place” rather than “bounce back and forth between”
Grandparents’ custody and his parents’ custody.
¶12 	Uncle, the co-guardian, then testified about the instances in
which he and his wife picked up the Children from their home
after the two relapses. He recalled that, during the 2016 removal,
there was a “stench” in the house that made him want to vomit,
and he described the situation as “wrecked squalor.” He also
recalled that, during the 2018 removal, there were mountains of
moldy laundry and giant water stains on the laundry room floor,
broken glass and some sort of oily liquid on the kitchen floor, and
a sink overflowing with dishes and rotten food. He testified that,
despite snow on the ground, the Children came outside in sandals
with no coats. Uncle explained that he currently lives next door
to, and shares a yard with, Grandparents, and that his children
are more like siblings than cousins to Child. He also testified that

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Child 	is 	actively 	involved 	in 	hockey 	and 	has 	thrived 	in
Grandparents’ care. Uncle’s wife corroborated Uncle’s testimony
about the poor condition of the house during both pickups.
¶13 	At the close of the evidentiary presentation, the district
court made an oral ruling terminating Father’s parental rights.2
The court made extensive findings—generally not challenged
here—that at least two statutory grounds for termination existed:
abandonment and past neglect. In particular, the court found that
Father had abandoned Child by failing to make sufficient efforts
to communicate with him from January 2018 until at least August
2020. See Utah Code Ann. § 80-4-302(1)(b)–(c) (LexisNexis Supp.
2022) (stating that a parent’s failure to communicate with a child
“by mail, telephone, or otherwise for six months” constitutes
“prima facie evidence of abandonment”). The court explained
that abandonment also includes the failure “to show the normal
interests of a natural parent without just cause,” and concluded
that Father’s failure to provide for Child “emotionally [and]
financially” and his lack of “attempts to communicate with
[Child] for such a long period of time” constituted clear evidence
of abandonment. The court also discussed Father’s history of
illegal drug use, and noted that Father’s “continuous failure . . .
since 2016 to provide [Child] with adequate food, clothing,
shelter, 	and 	education” 	meant 	that 	Father 	had, 	during 	his
relapses, been “unfit” and had “neglected [Child].”
¶14 	After determining that statutory grounds for termination
were 	present, 	the 	court 	turned 	to 	the 	question 	of 	whether
termination of Father’s parental rights was in Child’s best interest.
On this score, the court’s analysis was not as extensive. During its
2. The court also terminated Mother’s parental rights to both
Children, as well as Brother’s father’s rights to Brother. Neither
Mother nor Brother’s father appeals the court’s termination order,
and therefore the court’s termination orders as to those other
individuals are not at issue in this appeal.

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oral ruling, the court commented that the Children “were in really
bad shape” when they came to live with Grandmother, and noted
that “they are now in good condition.” The court offered “kudos”
to Father “for the incredible amount of effort” he had made “to
try and sort things out,” but noted that Father had been clean once
before “for a period of five years” (from 2011 through 2016) and
yet had nevertheless later “relapsed.” The court offered its view
that “the biggest risk” in the case “would be that I flip-flop their
current custody, that I create a situation where they eventually go
back into the custody of these parents, and then they end up being
neglected and abused again.” The court concluded that the
Children “are in a safe home where they are healthy and well
cared for,” and that it is “in their best interest to not be exposed to
the abuse and neglect that they faced several years ago.”
¶15 	The court also determined that “termination of parental
rights [was] strictly necessary,” stating that “the reason that it’s
strictly necessary is that, if I don’t terminate the parental rights in
this case, then the adoption cannot go forward. And the adoption
is in the best interest of the children . . . so that they can have
permanency 	in 	their 	life.” 	The 	court 	commented 	that 	the
“stability” of Father’s living situation was “questionable” because
“he’s not even paying rent in the home that he lives in right now”
and that “[h]e has no rights to that home” because “he’s not
married to the person that he’s with and so I don’t know how
stable that relationship is.”
¶16 	In its written ruling, which followed the oral ruling, the
court made a factual finding—somewhat at odds with its oral
ruling3—that Father’s “situation is stable and because of his living
situation he is not required to pay rent.” And the court’s best-
3. “Where a court’s oral ruling differs from a final written order,
the latter controls.” Haskell v. Wakefield & Assocs. Inc., 2021 UT App
123, ¶ 19, 500 P.3d 950 (quotation simplified).

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interest analysis consisted of a single paragraph, set forth here in
its entirety:
The Court finds that the [C]hildren were in really
bad shape in 2016 before [Grandparents] assumed
care of the [C]hildren. The Court finds that the
[C]hildren were again in really bad shape in 2018
before 	[Grandparents] 	assumed 	care 	of 	the
[C]hildren for the second time. The [C]hildren are
now happy, well adjusted, well cared for and their
needs 	are 	being 	met. 	The 	biggest 	risk 	to 	[the
Children] is if the Court make[s] a decision that puts
the [C]hildren at risk of going through what they
have gone through again. The Court concludes that
it is in the [C]hildren’s best interest that the parental
rights of the natural parents be terminated. The
termination 	of 	the 	parental 	rights 	is 	strictly
necessary and it is in the best interests of the
[C]hildren that they be adopted by [Grandparents].
If the Court does not terminate parental rights the
adoption cannot occur. The Court will not create a
situation where the [C]hildren may be bounced
back and forth between different homes.
ISSUE AND STANDARD OF REVIEW
¶17 	Father appeals the district court’s order terminating his
parental rights, but does not challenge the court’s determination
that statutory grounds for termination exist here. Instead, Father
limits 	his 	challenge 	to 	the 	court’s 	best-interest 	analysis. 	In
particular, 	he 	takes 	issue 	with 	the 	court’s 	conclusion 	that
termination of his parental rights was “strictly necessary” to
further Child’s best interest, and with the court’s apparent failure
to assess whether a permanent guardianship with Grandparents
would serve Child’s best interest as well as adoption would.

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¶18 	We 	review 	deferentially 	a 	lower 	court’s 	best-interest
determination, and will overturn it “only if it either failed to
consider all of the facts or considered all of the facts and its
decision 	was 	nonetheless 	against 	the 	clear 	weight 	of 	the
evidence.” In re E.R., 2021 UT 36, ¶ 31, 496 P.3d 58 (quotation
simplified). But we do not afford “a high degree of deference” to
such determinations; rather, we simply apply “the same level of
deference given to all lower court findings of fact and ‘fact-like’
determinations of mixed questions,” id. ¶¶ 29, 30, and follow the
“clear and convincing standard of proof” that is the relevant
evidentiary standard in termination of parental rights cases, see In
re G.D., 2021 UT 19, ¶ 73, 491 P.3d 867.
ANALYSIS
I. Preservation
¶19 	Before addressing the merits of Father’s challenge to the
district 	court’s 	best-interest 	analysis, 	we 	must 	consider
Grandparents’ assertion that Father failed to adequately preserve
for 	appellate 	review 	the 	issue 	of 	whether 	a 	permanent
guardianship arrangement would serve Child’s best interest at
least as well as adoption would. In particular, Grandparents point
out that Father did not make a specific request for the court to
consider permanent guardianship as an alternative option. We
acknowledge that it would have perhaps been better if Father had
more expressly asked the court to consider particular enumerated
options short of termination, and we agree with Grandparents
that, in some instances (e.g., where the existence of a particular
option would not be readily apparent to the court), a parent may
need to expressly ask a trial court to consider a specific non-
termination option in order to properly preserve the right to
argue, on appeal, that the court did not adequately consider that
option. But on the facts presented here, we find Grandparents’
preservation arguments unpersuasive.

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¶20 	As an initial matter, it is important to remember that
Grandparents—as the petitioners—bear the burden of proof on all
elements of their termination request, including the best-interest
question. See In re G.D., 2021 UT 19, ¶ 43, 491 P.3d 867 (stating that
“petitioners in termination proceedings must prove termination
is warranted”). In this context, Grandparents bear the burden of—
among other things—demonstrating that termination of Father’s
parental rights was strictly necessary to serve Child’s best interest.
And as part of that showing, Grandparents must demonstrate that
no other option short of termination would serve Child’s best
interest as well as termination would. See In re B.T.B., 2020 UT 60,
¶ 66, 472 P.3d 827 (“If the child can be equally protected and
benefited by an option other than termination, termination is not
strictly necessary.”).
¶21 	Moreover, in assessing best interest, a court is obligated to
“consider whether other less-permanent arrangements might
serve the child’s needs just as well” as termination would. Id. ¶ 67
(quotation simplified). As we discuss more fully below, courts
that order termination of parental rights without appropriately
exploring “feasible alternatives to termination” have not properly
applied the second part of the two-part termination test. See In re
H.F., 2019 UT App 204, ¶ 17, 455 P.3d 1098 (reversing and
remanding a juvenile court’s termination order because, among
other things, “the court’s determination that termination was
strictly 	necessary 	was 	not 	supported 	by 	an 	appropriate
exploration of feasible alternatives to termination”).
¶22 	In this case, the court was—or, at a minimum, certainly
should have been—aware of the existence of a viable alternative
guardianship 	option: 	after 	all, 	Child 	had 	been 	living 	with
Grandmother 	pursuant 	to 	a 	court-ordered 	guardianship
arrangement off and on since 2016. At the time of trial, a
guardianship arrangement was the status quo; indeed, Father had
filed a motion—still pending as of the time of trial—seeking to
enforce the parent-time provisions of the court’s guardianship

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order. In this situation, for Grandparents’ petition to succeed, they
needed to persuade the court to alter that status quo, upset the
guardianship arrangement that was then in place, terminate the
parents’ rights, and facilitate an adoption. Any grant of that
petition would therefore have to be accompanied by at least an
implicit rejection of a guardianship alternative.
¶23 	Under these circumstances, the question of whether a
permanent guardianship arrangement with Grandparents might
serve Child’s best interest as well as adoption was necessarily
presented to the court. See In re D.B., 2012 UT 65, ¶ 17, 289 P.3d
459 (stating that “an issue is preserved for appeal when it has been
presented to the court in such a way that the court has an
opportunity to rule on it” (quotation simplified)). On these facts,
we discern no preservation infirmity, and therefore do not view
this as an appropriate case for exercise of our discretionary
preservation requirement. See Fort Pierce Indus. Park Phases II, III,
& IV Owners Ass’n v. Shakespeare, 2016 UT 28, ¶ 13, 379 P.3d 1218
(stating that “our preservation requirement is self-imposed and is
therefore one of prudence rather than jurisdiction,” and that
appellate courts “exercise wide discretion when deciding whether
to entertain or reject matters that are first raised on appeal”
(quotation simplified)).
II. Best Interest and Strict Necessity
¶24 	Next, 	we 	proceed 	to 	address 	the 	merits 	of 	Father’s
challenge 	to 	the 	district 	court’s 	termination 	order. 	Before
terminating a parent’s rights, a court must be satisfied that both
parts of a two-part test are met. First, the court must find that one
or more statutory grounds for termination are present. See Utah
Code Ann. § 80-4-301 (LexisNexis Supp. 2022). In this case, the
court found that at least two such statutory grounds were
present—abandonment and past neglect—and Father does not
challenge the court’s findings in that regard.

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¶25 	But Father does challenge the court’s determination with
regard to the second part of the test: that termination of his
parental rights was in Child’s best interest. See In re B.T.B., 2020
UT 60, ¶¶ 19–20, 472 P.3d 827. Specifically, Father challenges that
determination as being, at a minimum, incomplete, asserting that
the district court did not adequately explore potential options
short of termination that might serve Child’s best interest just as
well as termination would. On this point, we agree with Father.
¶26 	The best-interest inquiry is “wide-ranging” and “asks a
court to weigh the entirety of the circumstances” of a child’s
situation, including “the physical, intellectual, social, moral, and
educational training and general welfare and happiness of the
child.” See In re J.M., 2020 UT App 52, ¶¶ 35, 37, 463 P.3d 66
(quotation simplified); see also In re H.F., 2019 UT App 204, ¶ 14,
455 P.3d 1098 (“The ‘best-interest’ test is broad, and is intended as
a holistic examination of all the relevant circumstances that might
affect a child’s situation.” (quotation simplified)).
¶27 	Our 	legislature 	has 	provided 	two 	related 	pieces 	of
important guidance on the best-interest question. See In re A.H.,
2022 UT App 114, ¶¶ 35–36. First, it has expressed a strong
preference for families to remain together, stating that “[i]t is in
the best interest and welfare of a child to be raised under the care
and supervision of the child’s natural parents” and that “[a]
child’s need for a normal family life in a permanent home, and for
positive, nurturing family relationships is usually best met by the
child’s 	natural 	parents.” 	See 	Utah 	Code 	Ann. 	§ 	80-4-104(8)
(LexisNexis Supp. 2022).
¶28 	Second, our legislature has mandated that termination of
parental rights is permissible only when such termination is
“strictly necessary.” See id. § 80-4-301(1). Our supreme court has
interpreted this statutory requirement to mean that “termination
must be strictly necessary to promote the child’s best interest.” See
In re B.T.B., 2020 UT 60, ¶ 60. Indeed, a court’s inquiry into the

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strict necessity of termination should take place as part of the best-
interest inquiry that comprises the second part of the termination
test. See id. ¶ 76 (stating that, “as part of [the best-interest inquiry],
a court must specifically address whether termination is strictly
necessary to promote the child’s welfare and best interest”).
¶29 	Our legislature further requires courts, when examining
the necessity of termination, to consider whether “sufficient
efforts 	were 	dedicated 	to 	reunification” 	of 	the 	family, 	and
whether “the efforts to place the child with kin who have, or are
willing to come forward to care for the child, were given due
weight.” See Utah Code Ann. § 80-4-104(12)(b)(i)–(ii). And our
supreme court, interpreting this requirement, has made clear that
this part of the inquiry also 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 	some 	cases,
alternatives will be few and unsatisfactory, and
termination of the parent’s rights will be the option
that is in the child’s best interest. But in other cases,
courts 	should 	consider 	whether 	other 	less-
permanent arrangements might serve the child’s
needs just as well.
In re B.T.B., 2020 UT 60, ¶ 67 (quotation simplified). Indeed, courts
“must 	start 	the 	best 	interest 	analysis 	from 	the 	legislatively
mandated position that wherever possible, family life should be
strengthened and preserved,” and “[i]f the child can be equally
protected and benefited by an option other than termination,
termination 	is 	not 	strictly 	necessary.” 	Id. 	¶ 	66 	(quotation
simplified); see also In re B.T.B., 2018 UT App 157, ¶ 55, 436 P.3d
206 (stating that “if 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

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option”), aff’d, 2020 UT 60. As noted, courts that order termination
of 	parental 	rights 	without 	appropriately 	exploring 	“feasible
alternatives to termination” have failed to properly apply the
second part of the test. See In re H.F., 2019 UT App 204, ¶ 17.
¶30 	In making its best-interest determination, the court did
discuss—at least during its oral ruling—one potential alternative
to termination: returning Child to Father’s custody. In its oral
ruling, 	the 	court 	was 	complimentary 	of 	Father’s 	efforts 	to
overcome his substance use problems, but nevertheless offered its
view that Father’s current living situation was too unstable, and
the risk of Father experiencing a relapse too high, to warrant
returning Child to Father’s care. In its written ruling, however, the
court made a contradictory finding regarding Father’s stability—
finding that his “situation [was] stable”—but otherwise offered
no specific discussion, findings, or conclusions about Father’s
current ability to care for Child. This is problematic. A parent who
has, in the past, neglected or abandoned his or her child has
certainly committed actions that constitute statutory grounds for
termination. But it no longer follows “almost automatically”
therefrom that it is in the best interest of the child to terminate the
parent’s rights. See In re B.T.B., 2020 UT 60, ¶ 80 (“The court of
appeals did not err in disavowing the almost automatically
language in its case law.”). Especially in cases (like this one)
initiated by private petition, it is important for courts to carefully
assess a parent’s efforts to improve and, if the court remains
unpersuaded that the parent’s situation has sufficiently changed
for the better, to specifically set forth reasons why it remains
unpersuaded, in addition to reasons—which may be related—
why it is in the child’s best interest not to be returned to the
parent. See id. ¶ 71. While there may be a basis in this record for
the district court to have rejected Father’s position with regard to
this alternative, see In re J.M., 2020 UT App 52, ¶¶ 37–42, 463 P.3d
66 (upholding a court’s refusal to return custody to a parent under
similar circumstances), the court here—by focusing largely on
Father’s past actions rather than the current situation, and then by

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making contradictory findings about Father’s current situation—
did not adequately explain itself.
¶31 	Even more problematic, however, is the court’s failure to
expressly consider or even discuss—either in its oral or written
ruling—the other obvious option: entering a permanent custody
and guardianship order in favor of Grandparents.4 This option
would have simply continued some version of the status quo then
in place. Under this option, Grandmother (with, perhaps, her
husband or Uncle as co-guardian) would continue to serve as
Child’s legal guardian and Child would continue to live under her
care, but Father could—pursuant to the terms of the guardianship
order, as determined and supervised by the court—retain the
right to maintain a relationship with Child, including perhaps
exercise of an appropriate amount of parent-time. This option has
the 	benefit 	of 	preserving 	the 	familial 	relationships, 	as 	our
legislature has commanded courts to do “wherever possible.” See
Utah Code Ann. § 80-4-104(12) (stating that “[w]herever possible,
family life should be strengthened and preserved”). And this
option does have certain hallmarks of permanency; after all, a
parent whose child has been placed in a permanent guardianship
arrangement in a child welfare proceeding has no independent
right to petition to change or dissolve the guardianship. See id.
§ 78A-6-357(3)(d) (LexisNexis Supp. 2022). Only the guardian has
4. Grandparents argue that the district court did consider this
alternative, at least implicitly. They point out that the court
rejected “[a]ny scenario that included a possibility that the
[C]hildren be returned” to Father, a conclusion they interpret as
implicitly rejecting the guardianship option. As noted in our
preservation analysis, we agree with Grandparents that the court
necessarily 	had 	to 	at 	least 	implicitly 	reject 	the 	status 	quo
guardianship option. But there is no getting around the fact that
the district court did not ever expressly consider or discuss this
option at all, let alone offer any reasons for rejecting it. And it is
this lack of express reasoning that we consider problematic.

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20210706-CA 	16 	2022 UT App 116
that right. Id. And we are aware of no evidence in the record that
would lead us to believe that Grandparents would be particularly
susceptible to undue influence from Father as concerns seeking a
change or dissolution of the guardianship.
¶32 	As noted above, the court by necessity had to (at least
implicitly) reject this option in order to grant Grandparents’
petition for adoption and termination. But it made no effort to
explain why it rejected that option, or why it might have believed
that 	termination 	better 	served 	Child’s 	best 	interest 	than
guardianship did. And our supreme court requires courts to
provide such an explanation “on the record.” See In re B.T.B., 2020
UT 	60, 	¶ 	74 	(stating that the 	“strictly necessary” 	statutory
language “requires the court to find, on the record, that no other
option can achieve the same welfare and best interest for the
child” 	as 	termination 	can). 	And 	the 	“strictly 	necessary”
requirement is especially important here, both because private
termination cases “lack many of the parental protections that are
built into the process when the State seeks termination of parental
rights,” and because “the best interest analysis may be the only
real opportunity for the court to consider whether something
short of termination would serve the child’s welfare and best
interest.” See id. ¶ 71.
¶33 	Grandparents defend the district court’s ruling by pointing
to the court’s comments regarding stability. As noted, the court
determined that the Children need stability, offered its view (at
least in its oral ruling) that Father’s living situation was unstable
and that there continued to be a risk of drug relapse, and
concluded that adoption was the option that provided the highest
level of stability. In its written ruling, the court concluded that
termination was “strictly necessary” because “[i]f the Court does
not terminate parental rights the adoption cannot occur.” But in
this case, where another valid and available option exists, this
reasoning is insufficient.

In re J.J.W.
20210706-CA 	17 	2022 UT App 116
¶34 	Our supreme court has recently clarified that the mere fact
that adoptions—as a category—provide more permanency and
stability than guardianships do is not enough to satisfy the
statutory “strictly necessary” standard. See In re J.A.L., 2022 UT 12,
¶ 24, 506 P.3d 606. In that case, the court held that the lower court
fell 	into 	legal 	error 	in 	concluding 	that 	[a
guardianship option] would not provide the “same
degree of permanency as an adoption.” That is not
the 	question 	under 	our 	law. 	A 	permanent
guardianship by definition does not offer the same
degree of permanency as an adoption. And there is
always some risk that the permanent guardianship
could come to an end, or be affected by visitation by
the 	parent. 	If 	these 	categorical 	concerns 	were
enough, termination and adoption would be strictly
necessary across the board. But such categorical
analysis is not in line with the statutory standard.
Id. The court then noted that, as part of the “strictly necessary”
analysis, a court “must assess whether a permanent guardianship
can equally protect and benefit the children in the case before it.”
Id. ¶ 25 (quotation simplified). The court made clear that the
statutory requirements were “not met by the categorical concern
that a permanent guardianship is not as stable or permanent as an
adoption,” and instead “require[] analysis of the particularized
circumstances of the case before the court.” Id.
¶35 	The situation presented here is even more concerning than
the situation presented in In re J.A.L. In that case, the court at least
discussed the possibility of a guardianship, but dismissed that
option because it was not as permanent as an adoption. See id.
¶ 23. 	As 	noted, 	our 	supreme 	court 	deemed 	that 	reasoning
insufficient. 	But 	here, 	the 	court 	did 	not 	even 	discuss 	the
possibility of imposing a permanent guardianship arrangement;
instead, it made only general references to permanence and

In re J.J.W.
20210706-CA 	18 	2022 UT App 116
stability. It made no effort to explain—even using the thin
reasoning offered by the trial court in In re J.A.L.—why a
guardianship option would not further Child’s best interest.
These generalized comments are simply insufficient to explain
why termination of Father’s parental rights is strictly necessary to
further Child’s best interest.
¶36 	In order to adequately assess strict necessity in these
circumstances, 	the 	district 	court 	must 	directly 	confront 	this
question: why does adoption and termination of Father’s parental
rights better further Child’s best interest than a permanent
guardianship option? In particular, before it may terminate
Father’s rights, the court must adequately explain why it is better
for Child to have Father cut out of his life forever than to have
Father remain involved in his life, perhaps with limited parent-
time, pursuant to a guardianship arrangement.5 And the court
should approach these questions “from the child’s point of view,”
rather than from Grandparents’ or Father’s point of view. See In re
B.T.B., 2020 UT 60, ¶ 64; see also Utah Code Ann. § 80-4-301(1)
(instructing 	that 	the 	“strictly 	necessary” 	inquiry 	should 	be
undertaken “from the child’s point of view”). After all, courts may
permanently separate families only if it is strictly necessary to do
so; if both adoption and guardianship equally serve a child’s best
interest, then termination of the parent’s rights is not strictly
necessary. See In re B.T.B., 2020 UT 60, ¶ 66 (“If the child can be
5. In this vein, the court should also consider the fact that
Mother—despite the fact that her parental rights have been
terminated in a ruling she does not appeal—will very likely have
some role in the Children’s lives going forward, simply by virtue
of her biological relation to Grandmother, while Father—if his
rights 	are 	terminated—is 	unlikely 	to 	be 	afforded 	the 	same
opportunity. Indeed, we suspect that these factual realities had
something to do with the fact that Father (but not Mother) went
to the effort and expense of filing an appeal. On remand, among
other things, the court should consider and discuss these realities.

In re J.J.W.
20210706-CA 	19 	2022 UT App 116
equally 	protected 	and 	benefited 	by 	an 	option 	other 	than
termination, [then] termination is not strictly necessary.”); accord
In re A.H., 2022 UT App 114, ¶ 48.
CONCLUSION
¶37 	The district court fell into legal error when it failed to
expressly consider other apparent reasonable options short of
termination that might serve Child’s best interest just as well. In
particular, the court erred by failing to explain, on the record, why
a 	permanent 	custody 	and 	guardianship 	arrangement 	with
Grandparents could not serve Child’s best interest, and why
termination of Father’s parental rights—as opposed to imposition
of a guardianship—was strictly necessary to further that interest.
We therefore vacate the district court’s termination order and
remand the case for a renewed best-interest analysis.
¶38 	In so doing, we offer two items of guidance that we hope
will be helpful on remand. First, we emphasize that this is not a
weight-of-the-evidence 	reversal, 	but 	simply 	a 	remand 	for
completion of the analysis. Nothing in this opinion should be
construed as this court having placed its thumb on the scale of
how that analysis should come out, and we of course offer no
opinion in that regard. Second, we emphasize—as we have
before, see In re Z.C.W., 2021 UT App 98, ¶¶ 14–15, 500 P.3d 94—
that the best-interest analysis on remand should be conducted in
present-tense fashion, as of the date of the hearing or trial, and
should not only take into account the items discussed in this
opinion but, in addition, should take into account, in some form,
any material developments with regard to Child that have
occurred since the last trial.