In re K.Y...

2022 UT App 149
THE UTAH C OURT OF APPEALS
S TATE OF U TAH , IN THE INTEREST OF K.Y., S.Y., AND M.Y.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
C.Y.,
Appellant,
v.
S TATE OF U TAH ,
Appellee.
Amended Opinion*
No. 20210595-CA
Filed December 30, 2022
Third District Juvenile Court, West Jordan Department
The Honorable Tupakk A.G. Renteria
No. 1172573
Alexandra Mareschal, Attorney for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
S ENIOR JUDGE K ATE A PPLEBY authored this Opinion, in which
JUDGES M ICHELE M. C HRISTIANSEN F ORSTER and R YAN D. TENNEY
concurred.1
* This amended opinion replaces the opinion issued December 15,
2022, In re K.Y., 2022 UT App 142. Footnote 11 has been amended
to correctly identify the party raising the preservation argument
discussed therein.
1. Senior Judge Kate Appleby sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(7).

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APPLEBY, Senior Judge:
¶1 	C.Y. (Mother) is the biological mother of three children,
K.Y., S.Y., and M.Y. (collectively, the Children). After Mother
administered marijuana to her ten-year-old twin daughters, K.Y.
and S.Y. (the twins) by blowing smoke into their mouths, the State
removed 	the 	Children 	from 	Mother’s 	custody. 	The 	State’s
primary goal was to reunify Mother and the Children as soon as
it was safe to do so. But after twenty-one months of reunification
services, the juvenile court found that it was still unsafe to return
the Children to Mother’s custody. The juvenile court stopped
services and found termination of Mother’s parental rights in the
Children’s best interest. On appeal, Mother challenges the court’s
best interest analysis. We agree with Mother that the court’s
analysis was inadequate and therefore vacate its termination
order and remand for further proceedings.
BACKGROUND
¶2 	Early in 2019, Mother administered marijuana to the twins
during a time in which they suffered from panic attacks and
anxiety, which were in large part trauma responses to sexual
abuse perpetrated by their stepfather (Stepfather).2 For more than
one 	year, 	Mother 	struggled 	to 	help 	the 	twins, 	and 	after
medications and therapy proved futile, she resorted to blowing
marijuana smoke into their mouths; she was arrested soon
thereafter.3 In April, the incident was referred to the Division of
Child and Family Services (DCFS). After a DCFS investigation, the
2. Although Stepfather adopted the Children in 2016, becoming
their legal father, he voluntarily relinquished his parental rights
to the Children in 2021. We refer to him as Stepfather for
simplicity.
3. Mother entered a plea in abeyance for the charges and was
sentenced to two years’ probation.

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juvenile court found the Children “abused . . . and/or . . .
neglected” and ordered DCFS to take custody of the Children.
DCFS placed them with a maternal aunt (Aunt) and uncle (Uncle).
¶3 	When the Children arrived at the kinship placement, it
became clear the trouble with Mother’s care was multifaceted.
M.Y., diagnosed with ADHD and neurodevelopmental problems,
was 	developmentally 	delayed, 	dysregulated, 	impulsive, 	and
aggressive. At the age of four, she could barely speak, did not
listen, and was only partially toilet trained. She exhibited a range
of troubling behaviors: hitting, biting, spitting, running away, and
harming herself. As for the twins, they were two grade levels
behind in school, heavily medicated, and experiencing severe
emotional distress. Each twin suffered trauma from Stepfather’s
sexual abuse and from Mother forcing them to hit and physically
discipline M.Y. Indeed, S.Y. later reported that “the biggest
trauma she had been through was being encouraged to physically
abuse her sister.”
¶4 	DCFS determined the primary permanency goal for the
family’s case was reunification—that is, to return the Children to
Mother’s 	custody. 	It 	set 	a 	concurrent 	permanency 	goal 	of
adoption. And it developed a Child and Family Service Plan (the
family plan), which required Mother to submit to random drug
testing, remain substance abuse free, complete a psychological
assessment 	with 	a 	parenting 	component 	and 	comply 	with
treatment recommendations resulting therefrom, maintain stable
housing, maintain financial means of support for her and the
Children, comply with all court orders, and maintain consistent
contact with the DCFS caseworker.
¶5 	In June 2019, Mother completed her required psychological
evaluation. There, Mother reported experiencing depression and
anxiety 	stemming 	from 	her 	tumultuous 	childhood. 	The
psychologist found Mother’s symptoms consistent with post-
traumatic stress disorder and borderline personality disorder and

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recommended Mother complete “[a] substance abuse assessment,
individual and group treatment . . . , an updated medication
assessment, parenting classes[,] and filial therapy.” DCFS added
these recommendations to the family plan.
¶6 	Mother had no difficulty complying with the family plan.
She regularly submitted to random drug testing, and (aside from
the first two) the tests were negative. By October, Mother’s
therapist 	stated 	Mother 	was 	actively 	participating 	in
appointments and “willingly confront[ing] issues regarding her
parenting.” 	Her 	therapist 	recommended 	DCFS 	consider
extending Mother’s parent-time privileges. Later that month,
during a six-month review hearing, the juvenile court authorized
unsupervised parent-time for Mother with the twins.4 By all
accounts, Mother was on a “positive trajectory.”
¶7 	But 	by 	December, 	although 	Mother 	remained 	in
compliance with the family plan and even received authorization
for 	unsupervised 	parent-time 	with 	M.Y., 	there 	were 	some
concerns about Mother’s “willingness to take direction [in family
therapy] and practice the skills that she [was being] taught.” In a
team meeting with DCFS, the family therapist explained that
Mother struggled to accept support and direction and “refused to
practice” the techniques recommended to her.
¶8 	By January 2020, though, DCFS reported Mother had made
some improvements and was more receptive to family therapy.
Mother’s 	therapist 	corroborated 	this 	progress. 	Nevertheless,
DCFS retained reservations about returning the Children to her.
It thought the twins “need[ed] more time to work on their trust in
and relationship with” Mother. The twins remained hesitant to
participate in parent-time with Mother and to attend family
4. As it turned out, although the court authorized unsupervised
parent-time for the twins, it never actually took place over the
course of this case.

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therapy sessions, and they were nervous about returning to live
with her. At one point, K.Y. reported, “I don’t really like our mom
but I don’t like to lose her either but I don’t want to live with her.”
In April, DCFS asked the court to extend reunification services to
see whether, with more time, the relationship between the twins
and Mother could be fortified. The court agreed and found a
ninety-day 	extension 	in 	the 	Children’s 	best 	interest, 	stating
reunification was “probable.” In May, with reunification services
extended, DCFS made a referral for Mother to begin peer-
parenting. Mother joined a waiting list for that service.
¶9 	The extension period passed, though not without incident.
In July, Mother, the Children, and Mother’s cousin (Cousin) met
for parent-time at a public park (the park incident). DCFS had
allowed Cousin to supervise the visit as a third-party supervisor.
At some point, M.Y. “ran the opposite direction” from Mother.
Mother, worried that M.Y. would find herself in a nearby road or
river and unable to “run after” M.Y. “fast enough,” instructed
K.Y. to chase M.Y. and sit on her until Mother could catch up.
Mother also allegedly “yell[ed] and scream[ed] at [M.Y.] while
holding her down.” As the park incident unfolded, S.Y. clung to
Cousin, 	shaking. 	After 	this, 	the 	twins 	became 	emotionally
withdrawn. DCFS later made supported findings that the twins
suffered 	emotional 	abuse 	and 	shifted 	Mother’s 	parent-time
supervised by a third-party to parent-time supervised by DCFS,
finding that this was in the Children’s best interest.5
¶10 	Nine days after the park incident, the extension period
ended. At this point, the court ordered a second ninety-day
extension 	and 	again 	stated 	its 	belief 	that 	reunification 	was
“probable.” During this second extension, Mother began the peer
parenting program. But in October, this extension, too, ended, and
DCFS 	requested 	the 	court 	terminate 	reunification 	services
5. The evidence did not support a finding of physical abuse as to
M.Y.

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altogether. Mother opposed this request and asked to proceed to
an evidentiary permanency hearing, which was set for late
November.
¶11 	At the permanency hearing, the juvenile court heard
testimony from the twins, Aunt, Mother, and several service
providers. The court’s goal was to address whether it should
terminate or extend reunification services, a relatively simple
question given that the case had already exceeded the eighteen-
month mark, such that the court could not further extend those
services without violating the limits set by statute. See Utah Code
Ann. 	§ 	80-3-409(6)–(7) 	(LexisNexis 	Supp. 	2022) 	(limiting
reunification services to twelve months but allowing the court to
extend services “for no more than 90 days,” and then “for one
additional 90-day period” if circumstances support doing so). But
because, 	by 	statute, 	termination 	of 	reunification 	services 	is
interwoven with a more foundational question about whether it
is safe to return the child or children to the custody of the parent,
most of the evidence focused on the Children’s safety. See id. § 80-
3-409(4) (providing that, where a case has reached its statutory
limit, the juvenile court shall terminate reunification services “if a
minor is not returned to the minor’s parent” (emphasis added)).
¶12 	During the hearing, each twin testified that she was afraid
to return to Mother’s custody; K.Y. expressed worries that Mother
would “start hitting” them again or “do her drugs to [them]
again,” while S.Y. stated concerns that Mother would not allow
them to visit Aunt, Uncle, or their friends. For the most part, the
twins 	expressed 	a 	desire 	to 	continue 	living 	in 	the 	kinship
placement (though S.Y. testified that at least “[a] little bit” of her
wanted to live with Mother). As for parent-time, S.Y. testified that
she recently enjoyed talking with Mother and found it hard to
leave the visit. The twins acknowledged Mother’s progress. K.Y.
testified that, during recent parent-time, Mother more safely
managed M.Y. and did not yell at, threaten, or hurt her, and S.Y.
testified that Mother was “nicer” and a better listener. But each

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was skeptical about whether Mother had meaningfully changed.
And each testified extensively about the safety, love, and support
they felt in their kinship placement. Indeed, K.Y. testified the
kinship placement made her “feel happy” in a way she had
“wanted to feel . . . for a long time.”
¶13 	Aunt testified she believed the Children should not be
returned to Mother. Aunt noted that the Children had improved
in her care: M.Y. was more articulate and less impulsive, and the
twins were nearly caught up to grade level at school and were
happier, more open, and social. Aunt worried that in Mother’s
care, the Children would “go backwards.” Aunt also expressed
fears that Mother would “punish” the Children “for going
through all of this.” And Aunt testified that the twins experienced
heightened anxiety about “the thought of going home” and
observed that when S.Y. talked about it, she would “get[] very
emotional,” shake, and have facial contortions. Aunt further
testified that S.Y. wanted “all” parent-time with Mother “to stop.”
¶14 	Although M.Y.’s therapist did not explicitly say one way or
the other whether she thought M.Y. should return to Mother, the
therapist testified at great length about the importance of routine
and consistency “for a child like [M.Y.]” and that the “biggest
thing” 	for 	M.Y. 	is 	that 	the 	people 	around 	her 	respond 	in
predictable 	ways, 	with 	consistent 	emotional 	responses 	and
foreseeable consequences.
¶15 	The twins’ therapist, the family therapist, and the DCFS
caseworker were less ambivalent. In their view, the Children
should not be returned to Mother’s custody. Both therapists
expressed similar sentiments about what the Children needed to
be able to recover from their trauma: a parent who is empathic,
supportive, 	validating, 	flexible, 	stable, 	and 	able 	to 	set 	firm
boundaries. 	Yet, 	despite 	eighteen 	months 	of 	reunification
services, 	Mother 	was 	still 	“very 	rigid,” 	distrustful, 	and
emotionally unavailable. Testimony also pointed to the fact that

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the park incident occurred “late in the case”6 and that, during
family therapy, Mother often ignored instruction and sometimes
rolled 	her 	eyes 	in 	a 	manner 	that 	suggested 	she 	had 	not
internalized what she was taught. The caseworker testified that
although “on paper” Mother had completed “the majority” of the
family plan, DCFS did not feel it was safe or healthy for the
Children 	to 	live 	with 	her. 	Similarly, 	the 	family 	therapist
recommended 	supervised 	parent-time 	for 	Mother 	and 	the
Children 	but 	did 	not 	yet 	feel 	comfortable 	recommending
something more.
¶16 	Some of Mother’s testimony showed she could provide
appropriate 	care 	for 	the 	Children, 	but 	some 	portions
demonstrated otherwise. For instance, she testified about each
Child’s unique needs and that she had learned to show her
emotions more appropriately. She acknowledged the twins did
not 	feel 	safe 	in 	her 	home 	because 	“the 	whole 	apartment”
reminded them of Stepfather, and she stated that she hoped to
move elsewhere soon. She testified that her yelling “probably”
“trigger[ed]” M.Y. and that this was something she had worked
on. But when asked in what ways she thought her behavior
“triggered” the twins, Mother responded, “I don’t know,” and
suggested there were none. When asked what she observed of the
twins’ “demeanor” after the park incident, Mother testified,
“Nothing. [K.Y.] was laughing about it,” and S.Y.’s demeanor
“wasn’t really different.” When asked how she would respond to
6. A common thread underlying the testimony was that the park
incident was a turning point of sorts, for it solidified a major safety
concern with returning the Children to Mother’s custody. Witness
testimony portrayed the event as “triggering” and traumatizing,
causing the twins to regress for months afterward, and as a source
of further anxiety for the twins about returning to live with
Mother.

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20210595-CA 	9 	2022 UT App 149
a similar situation in the future, Mother proposed a solution that
was unlike what she had been taught in family therapy.
¶17 	Finally, various witnesses testified about the pandemic’s
effect on the case by changing the structure and frequency of
family meetings and parent-time. Mother’s counsel pointed to this
testimony in his closing argument to assert in Mother’s defense
(and relevant to this appeal) that the pandemic inhibited her
progress.7
¶18 	On December 11, in an oral ruling, the juvenile court noted
the case had well exceeded the statutory time limit for receiving
reunification services and terminated them, finding “substantial
risk” in returning the Children to Mother. The court highlighted
the twins’ desire, expressed at the permanency hearing and all
along, to remain in the kinship placement. And it emphasized
that, in this placement, the Children are not only “enjoying
everything that young children should be able to” but are also
making 	“significant 	strides” 	emotionally, 	behaviorally, 	and
academically. The court recognized Mother’s progress, finding
“no doubt” Mother had “substantially complied with” the family
plan. But the “issue” for the court was that “compliance with [the
family plan] [was not] the sole requirement here.” The court
“again . . . [came] back to” the fact that Mother “serve[s] as a
7. The court also heard testimony from Mother’s peer parent and
Mother’s therapist, though we do not find this relevant to her
appeal. Mother’s peer parent never actually observed Mother’s
parenting because after the park incident Mother’s parent-time
had 	been 	restricted 	to 	time 	supervised 	by 	DCFS. 	Further,
Mother’s therapist’s testimony about her progress and about how
none of her diagnoses prevented her from parenting is not
relevant to this appeal because the court did not rely on Mother’s
mental health to find termination of her rights strictly necessary.
To the extent the issue was discussed in the court’s best interest
analysis, the court only applauded Mother’s progress.

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20210595-CA 	10 	2022 UT App 149
trigger” 	for 	the 	Children. 	It 	pointed, 	in 	part, 	to 	testimony
describing how the Children are “suffering post-traumatic stress”
from the thought of returning to her custody. And although the
court was concerned about the park incident’s effect on the twins,
it was “more concerned” about what it meant for M.Y. The court
stated that, whether Mother received custody of the Children,
M.Y. was “at risk for harm” with Mother given the “likelihood of
[her] running away” in the future. It suggested Mother had not
“internalized the teachings” from her therapists. And the court
was 	not 	persuaded 	by 	Mother’s 	closing 	argument 	that 	the
pandemic hindered her ability to do so. It acknowledged that “the
pandemic did throw a monkey-wrench” into the child-welfare
and court systems but ultimately concluded it “in no way . . .
stop[ped] any of the services [Mother] was getting at the time.”
The court did not find it of great consequence that the pandemic
necessitated outdoor parent-time, stating, “Nothing wrong with
[parent-time] occurring in a park. Children love being in an
outdoor setting and whether or not [Mother] . . . receives custody
of [the Children] back, [she] would eventually have to take [the
Children] to a park . . . .” And to the extent that the pandemic
provided 	an 	opportunity 	to 	have 	“multiple 	therapists 	. 	. 	.
participate in the hearings” at the same time, the court saw it as a
“blessing” rather than hindrance to Mother’s progress.
¶19 	Accordingly, the court terminated services and changed
the primary permanency goal from reunification to adoption and
the concurrent permanency goal from adoption to permanent
custody and guardianship.8
¶20 	In the following month, the State filed a petition to
terminate Mother’s parental rights. After a failed mediation, the
8. Specifically, the record states a concurrent permanency goal of
“guardianship 	with 	a 	relative.” 	But 	we 	see 	no 	meaningful
difference in this case between that phrase and “permanent
custody and guardianship.”

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court set the matter for trial, to begin on June 7, 2021. The
termination trial spanned two days and consisted of testimony
from six individuals, each of whom had testified at the November
permanency hearing (M.Y.’s therapist, the twins’ therapist, the
DCFS caseworker, Mother’s therapist, Aunt, and Mother). Indeed,
much 	of 	the 	trial 	testimony 	resembled 	evidence 	from 	the
permanency hearing. We summarize the trial testimony under six
common themes.
¶21 	First, the trial testimony suggested, just as the permanency
hearing testimony had, that the Children need a stable and loving
caregiver and that Mother had not adequately learned to be one.
It showed Mother could not independently manage M.Y. or
respond appropriately to the twins’ emotions. And Mother’s own
testimony 	again 	betrayed 	an 	inflexible 	and 	unsupportive
parenting style.
¶22 	Second, the collective testimony portrayed Aunt’s house as
a “secure base” where the Children felt safe and comfortable. The
testimony demonstrated Aunt is patient and non-judgmental
with, and loving and attentive to, the Children. Further, Aunt
implemented skills to appropriately manage M.Y. and created
boundaries to keep the twins separate from M.Y.’s discipline. The
testimony showed the many ways in which Aunt helped the
Children succeed in school. By all accounts, she provided the kind
of care the Children need.
¶23 	Third, the testimony depicted the Children’s substantial
growth over the two-and-a-half years in Aunt’s care. The twins
were performing at grade level, had made progress in therapy
that was “night and day,” and had become “outgoing” and
“happy.” M.Y., too, had improved. In Aunt’s care, M.Y. learned
to speak in full sentences, walk properly, and better control her
impulses. Aunt testified M.Y. had become a good listener and
respectful. 	M.Y.’s 	therapist 	described 	M.Y.’s 	cognitive
improvements and said M.Y. had stopped harming herself.

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¶24 	Fourth, the testimony suggested that stability, consistency,
and routine are of particular importance to the Children and that
a change in caregivers could destabilize them. M.Y. is sensitive to
her environment, her impulses and aggression “flare-up[]” when
she is confronted with changes to her routine, and varied parent-
time schedules affect M.Y.’s “ability to regulate.” The testimony
further demonstrated that for “about a day” after parent-time
with Mother, M.Y. regresses and becomes loud and obstinate.9
And the testimony portrayed stability as important to the twins
and their trauma recovery. It suggested a change in caregivers
would cause the twins to “regress” to “increased amounts of
anxiety.”
¶25 	Fifth, much of the testimony explored the Children’s
custodial preferences. Though the twins did not testify at trial, the
caseworker described their concerns about returning to live with
Mother and that, when discussing that living arrangement, S.Y.
had 	facial 	contortions 	and 	both 	twins 	“shut 	down.” 	The
caseworker testified that the twins at times did not want to spend
parent-time with Mother. As for M.Y., the caseworker testified
that she seemed to enjoy her time with Mother and sometimes it
was hard to get her to leave parent-time. M.Y.’s therapist said
M.Y. did not express worry about returning to live with Mother,
though it was not clear that M.Y. fully understood what such a
transition would involve. Lastly, Aunt testified that though
permanent custody and guardianship had been discussed with
Aunt, Uncle, and the Children, “all five of [them] want adoption.”
¶26 	Finally, the court heard testimony about the effects of the
pandemic and the peer parenting program’s delay on Mother’s
progress. As at the permanency hearing, testimony portrayed the
pandemic as disruptive, for it required transitioning M.Y.’s
9. This was further confirmed in a July 2020 progress report
stating concerns “around [M.Y.] having toileting issues again and
accidents” during and after parent-time with Mother.

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20210595-CA 	13 	2022 UT App 149
therapy to remote meetings (which were half as long as the pre-
pandemic, in-person ones) and affected M.Y.’s ability to regulate
her behavior. The frequency of parent-time depended on “what
the pandemic . . . allowed,” which in practice involved less
frequent and exclusively outdoor parent-time. As to the peer
parenting program, Mother was referred to it in May 2020 but did
not begin until September 2020 because there was a waiting list.
Further, although a parent cannot begin the program when a
DCFS case is initiated because the program requires prerequisite
skills, it was unusual for it to begin “almost 14 months after the
case started.”
¶27 	During closing arguments, the State explained why, in its
view, a permanent guardianship would not be in the Children’s
best interest and argued that terminating Mother’s parental rights
was 	strictly 	necessary. 	Mother’s 	counsel 	argued 	against
termination and for permanent custody and guardianship. And
Mother’s counsel chalked up any lack of progress on Mother’s
behalf to circumstances beyond Mother’s control, namely, the
pandemic and the peer parenting program’s waitlist.
¶28 	The 	juvenile 	court 	issued 	an 	order 	on 	August 	10
terminating Mother’s parental rights. First, it found statutory
grounds for terminating her rights, including neglect, abuse,
unfitness, and failure of parental adjustment. Second, the court
conducted a best interest analysis and found termination “strictly
necessary” and in the best interest of the Children. The court’s
best interest analysis stated, in its entirety:
Mother received services for an extended period of
time. Mother was able to comply with some of the
requirements of the [family plan]. She was able to
address 	her 	substance 	abuse 	issues, 	seek
employment and take the necessary steps towards
stable housing. The concern for the court was and is
Mother’s 	inability 	to 	take 	direction 	from 	the

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20210595-CA 	14 	2022 UT App 149
Children’s individual therapist and from the family
therapist. Mother was and is unable to emotionally
support 	[the] 	Children 	who 	have 	suffered
significant trauma. She is unable to read their body
language 	or 	their 	cues 	as 	to 	when 	they 	need
emotional support. [The] Children’s therapist and
the family therapist testified that [the] Children
have stabilized in their current placement. They
developed skills on how to cope and address their
trauma. [The] Children look towards their current
placement 	for 	all 	their 	emotional 	and 	physical
support. 	According 	to 	the 	therapists, 	if 	the
Children’s placement is disrupted they will regress
and become destabilized.
It is strictly necessary and in the best interests
of [the Children] to terminate the parental rights,
including any and all residual rights of [Mother] so
the [C]hildren can be adopted and achieve security,
stability, and a sense of permanency.
ISSUES AND STANDARD OF REVIEW
¶29 	Mother contends the juvenile court erred in its best interest
analysis by failing to consider, first, a permanent custody and
guardianship and, second, “two important facts”—“the effect of
the pandemic and the effect of the delay in the peer-parenting
program.”10
10. Mother also argues that key findings underlying the juvenile
court’s best interest determination were “against the clear weight
of the evidence.” But because we find the court’s best interest
analysis “infected” by a “threshold legal error,” it is unnecessary
to address whether the findings were against the clear weight of
the evidence. See In re J.A.L., 2022 UT 12, ¶¶ 17–18, 506 P.3d 606.

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20210595-CA 	15 	2022 UT App 149
¶30 	“Whether a parent’s rights should be terminated presents
a mixed question of law and fact.” In re B.R., 2007 UT 82, ¶ 12, 171
P.3d 435. The juvenile court’s decision to terminate parental rights
is 	“factually 	intense” 	and, 	thus, 	is 	entitled 	a 	“measure 	of
deference.” See In re E.R., 2021 UT 36, ¶¶ 32–33, 496 P.3d 58
(quotation simplified). “But such deference is not absolute.” Id.
¶ 32. A juvenile court’s decision can be overturned if it “failed to
consider all of the facts,” it “considered all of the facts and its
decision 	was 	nonetheless 	against 	the 	clear 	weight 	of 	the
evidence,” or it “is premised on a threshold legal error.” See In re
B.R., 2007 UT 82, ¶ 12; In re J.A.L., 2022 UT 12, ¶ 17, 506 P.3d 606.
ANALYSIS
¶31 	Mother 	challenges 	the 	juvenile 	court’s 	best 	interest
analysis. This analysis is one of two “separate findings” necessary
to terminate parental rights. See In re B.T.B. (In re B.T.B. II), 2020
UT 60, ¶ 46, 472 P.3d 827; see also Utah Code Ann. § 80-4-104(12)(a)
(LexisNexis Supp. 2022). First, the court must find statutory
grounds for termination—for instance, abuse, neglect, or parental
unfitness. See Utah Code Ann. § 80-4-301 (LexisNexis Supp. 2022);
see also In re B.T.B. II, 2020 UT 60, ¶ 46. “Second, the juvenile court
must find that termination of the parent’s rights is in the best
interests of the child.” In re B.T.B. II, 2020 UT 60, ¶ 46 (quotation
simplified); see also Utah Code Ann. § 80-4-104(12)(a). Mother
challenges only the juvenile court’s best interest analysis and not
its finding on the statutory grounds for termination.
¶32 	In examining a child’s best interest, a court must begin
from the “legislatively mandated” “default position” that a child’s
best interest lies in being raised by the child’s natural parents. In
re B.T.B. II, 2020 UT 60, ¶¶ 65–66; see also Utah Code Ann. § 80-4-
104(8); 	cf. 	id. 	§ 	80-4-104(1) 	(“Under 	both 	the 	United 	States
Constitution and the constitution of this state, a parent possesses
a 	fundamental 	liberty 	interest 	in 	the 	care, 	custody, 	and
management 	of 	the 	parent’s 	child.”); 	id. 	§ 	80-4-104(12)(a)

In re K.Y.
20210595-CA 	16 	2022 UT App 149
(“Wherever possible, family life should be strengthened and
preserved . . . .”). So, there is a “strong presumption” favoring the
natural parents, and termination is “a drastic measure that should
be resorted to only in extreme cases.” See In re B.T.B., 2020 UT 60,
¶ 52; In re B.T.B. (In re B.T.B. I), 2018 UT App 157, ¶ 12, 436 P.3d
206 (quotation simplified), aff’d, 2020 UT 60.
¶33 	But this default position favoring the natural parents can
be overcome using a “broad” and “holistic” analysis, giving “full
and careful consideration to all of the evidence presented with
regard to the constitutional rights and claims of the parent.” See
In re B.T.B. I, 2018 UT App 157, ¶ 47; In re G.D., 2021 UT 19, ¶ 76,
491 P.3d 867 (quotation simplified). A juvenile court may not, for
instance, terminate parental rights merely because “a parent . . .
fail[s] to be a model parent.” Utah Code Ann. § 80-4-104(4)(a). Nor
may it do so based on “categorical concerns” of permanency or of
the possibility of a parent reentering a child’s life. In re A.H., 2022
UT App 114, ¶¶ 52, 54, 518 P.3d 993 (quotation simplified).
Instead, it must find “compelling reasons” to do so. See Utah Code
Ann. § 80-4-104(1). And there are specific factors the court must
consider when determining whether compelling reasons exist. See
id. § 80-4-303 (providing that where “a child is not in the physical
custody of the child’s parent or parents, the juvenile court, in
determining whether parental rights should be terminated, shall
consider” “the physical, mental, or emotional condition and needs
of the child”; the child’s preferences (if the child has “sufficient
capacity” to express them); the parent’s efforts to adjust the
parent’s conduct; and “any other factor that the juvenile court
considers relevant in the determination of whether to terminate
parental rights”); see also In re H.F., 2019 UT App 204, ¶ 14, 455
P.3d 1098 (describing other relevant factors, including “the child’s
bond with caregivers,” “the child’s need for permanency and
stability,” “the potential risk of harm if returned to the parents’
care,” and “the parent’s demeanor[] [or] attitude toward his or her
child” (quotation simplified)). Moreover, the court must analyze

In re K.Y.
20210595-CA 	17 	2022 UT App 149
whether termination is “strictly necessary.” See Utah Code Ann.
§ 80-4-104(12)(b); see also In re H.F., 2019 UT App 204, ¶ 14.
¶34 	The “strictly necessary” sub-analysis requires a court to
“pause 	long 	enough 	to 	thoughtfully 	consider 	the 	range 	of
available options that could promote the child’s welfare and best
interest.” In re B.T.B. II, 2020 UT 60, ¶ 69. The court must
determine whether a feasible option “short of imposing the
ultimate remedy of terminating the parent’s rights” exists, and if
it does, the court must choose it. See id. ¶¶ 66–67 (quotation
simplified); see also id. ¶ 74 (finding termination appropriate only
when “no other option can achieve the same welfare and best
interest for the child”). And the court must consider these
alternatives “on the record.” Id. ¶ 74 (emphasis added). Only after
the juvenile court “articulates supported reasons for rejecting
[feasible] alternatives” are such findings “entitled to deference on
appeal.” In re C.T., 2018 UT App 233, ¶ 16, 438 P.3d 100 (emphasis
added).
¶35 	Mother’s challenge is twofold. First, she challenges the
court’s 	best 	interest 	analysis 	narrowly, 	on 	strict 	necessity
grounds. Second, she challenges the best interest analysis broadly,
asserting “the juvenile court . . . failed to consider all the facts
relevant to the best interest analysis.” We address each issue in
turn.11
11. During oral argument, the guardian ad litem asserted, for the
first time, that Mother’s strict necessity claim was unpreserved.
She offered two reasons to support this assertion. First, she argued
that Mother’s claim challenges the adequacy of the juvenile
court’s findings, such that Mother needed to preserve her claim
with a “post-judgment motion.” See In re K.F., 2009 UT 4, ¶ 60, 201
P.3d 985 (“A plaintiff waives any argument regarding whether the
. . . court’s findings of fact were sufficiently detailed when the
(continued…)

In re K.Y.
20210595-CA 	18 	2022 UT App 149
plaintiff fails to challenge the detail, or adequacy, of the findings
with the . . . court.” (quotation simplified)). Second, citing In re
adoption of B.B., 2017 UT 59, 417 P.3d 1, the guardian ad litem
argued that because “the request [for permanent guardianship]
was made by Mother, not the foster placement,” as “Aunt never
petitioned [the court for it],” the option “was never on the table”
and the juvenile court did not have to consider it. We will “not, as
a matter of fairness, address arguments that rear their heads for
the first time in oral argument.” See In re Durbano, 2019 UT 34, ¶ 34
n.7, 449 P.3d 24 (quotation simplified).
In any event, the guardian ad litem has provided nothing
more “than bald citation to authority” to support her argument.
See CORA USA LLC v. Quick Change Artist LLC, 2017 UT App 66,
¶ 2, 397 P.3d 759. She does not explain why the waiver argument,
assuming it applies here at all, would bar this court from
reversing a threshold legal error. Nor does she explain how In re
adoption of B.B.’s modest holding, recognizing a parent’s right
under the Indian Child Welfare Act “to notice and to intervene in
. . . adoption proceedings,” compels the more assuming one, that
a parent (nonetheless a foster placement) must formally petition
the court for permanent guardianship or risk losing the option
altogether. See In re adoption of B.B., 2017 UT 59, ¶ 3 n.2. To the
contrary, 	juvenile 	courts 	have 	an 	“affirmative 	onus,” 	an
“independent obligation[] imposed by statute, to assess whether
termination 	is 	strictly 	necessary” 	(and 	to 	consider 	feasible
alternatives therein). In re J.P., 2021 UT App 134, ¶ 21 n.3, 502 P.3d
1247 	(quotation 	simplified). 	And 	although 	“the 	court’s
assessment in this regard is of course guided by the parties’
arguments and specific requests for relief,” id., it is a leap to say
that a foster placement (or even a parent) must formally petition
the court. Cf. In re J.J.W., 2022 UT App 116, ¶ 19 (“[I]n 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
(continued…)

In re K.Y.
20210595-CA 	19 	2022 UT App 149
I. Strict Necessity
¶36 	Mother 	asserts 	the 	juvenile 	court 	wrongfully 	found
termination strictly necessary because it failed to consider feasible
alternatives 	to 	termination, 	specifically, 	“the 	option 	of 	a
permanent custody and guardship.” We agree.
¶37 	Where permanent guardianship is feasible and before the
juvenile court, the statute requires the court to consider it on the
record and determine if it “can equally protect and benefit the
children in the case before it.” See In re J.A.L., 2022 UT 12, ¶ 25, 506
P.3d 606 (quotation simplified); see also In re J.P., 2021 UT App 134,
¶ 21 n.3, 502 P.3d 1247. This is especially true in cases in which the
permanent guardianship is a kinship placement. See In re B.T.B. I,
2018 UT App 157, ¶ 55, 436 P.3d 206, aff’d, 2020 UT 60, 472 P.3d
827 (suggesting kinship placements “preserv[e] the possibility for
rehabilitation of the parent-child relationship in the longer term”
and that, in kinship placements, children “benefit from having
more people—rather than fewer—in their lives who love them
and care about them”); In re A.H., 2022 UT App 114, ¶¶ 48–49, 518
P.3d 993 (emphasizing the importance of kinship placements “in
light of our legislature’s guidance that families should be kept
together whenever possible”); cf. In re J.P., 2021 UT App 134, ¶ 11
(describing 	the 	juvenile 	court’s 	view 	that 	permanent
guardianships “tend to work well only where . . . the guardian
and parent are willing to work together to preserve [the] parent-
child relationship” and work less well when the guardian and
order to properly preserve the right to argue, on appeal, that the
court 	did 	not 	adequately 	consider 	that 	option.” 	(emphases
added)). Here, a permanent guardianship was readily apparent to
the court, insofar as the court set it as a concurrent goal after the
permanency hearing and asked Aunt if she was familiar with it as
an option. In any case, Mother’s counsel specifically asked the
juvenile court, during closing argument at trial, to consider a
permanent guardianship.

In re K.Y.
20210595-CA 	20 	2022 UT App 149
parent have “little to no relationship,” such as in a non-relative,
foster-family placement (quotation simplified)).
¶38 	To determine whether a permanent guardianship is in a
child’s best interest, the court must account for “the particularized
circumstances of the case” and may not, for instance, reject the
option on “categorical concerns” of permanency and stability. In
re J.A.L., 2022 UT 12, ¶ 25; see also id. ¶ 24 (“A permanent
guardianship by definition does not offer the same degree of
permanency as an adoption. . . . If these categorical concerns were
enough, termination and adoption would be strictly necessary
across the board.”); In re A.H., 2022 UT App 114, ¶ 53 (noting that
while it is “appropriate” to consider permanency and stability
when weighing permanent guardianship against adoption, a
court “must articulate case-specific reasons why the added layer
of 	permanency 	that 	adoptions 	offer 	is 	important 	and 	why
adoption would better serve the best interest of the children in
question than the guardianship option would”). Rejecting a
permanent guardianship without accounting for the particular
facts of the case constitutes a threshold legal error. See In re J.A.L.,
2022 UT 12, ¶¶ 17–18, 25. It follows that the complete failure to
analyze, on the record, a feasible permanent guardianship option
that has been requested must, too, constitute threshold legal error.
¶39 	This is the error the juvenile court made here. Neither the
court’s termination order broadly, nor its best interest analysis
therein, 	contain 	the 	words 	“permanent 	custody 	and
guardianship” (or something similar). On the record, the court
thoroughly considered one termination alternative—returning
custody to Mother—to the exclusion of any other. And it did so
despite the supreme court’s requirement that juvenile courts
“thoughtfully consider the range of available options that could
promote the child’s welfare and best interest.” See In re B.T.B. II,
2020 UT 60, ¶ 69, 472 P.3d 827 (emphasis added). And permanent
guardianship clearly fell within this available range, given that
after the permanency hearing and prior to termination, the court

In re K.Y.
20210595-CA 	21 	2022 UT App 149
set the Children’s concurrent goal to permanent guardianship,
permanent guardianship was discussed with Aunt, and both
parties presented thoughts on permanent guardianship in their
closing arguments at trial. See In re J.P., 2021 UT App 134, ¶ 21 n.3
(noting that the juvenile court’s strict necessity analysis is “guided
by the parties’ arguments and specific requests for relief”). The
court’s 	failure 	to 	consider 	Mother’s 	request 	for 	permanent
guardianship is further puzzling under the facts of this case,
where the arrangement would be a kinship placement.
¶40 	Without having the juvenile court’s reasons for rejecting
permanent guardianship, we are left to review its best interest
analysis for evidence that it is strictly necessary to terminate
Mother’s parental rights, but we come up short. To be sure, the
record does not depict Mother as an exemplary parent. But that is
an insufficient ground to terminate her parental rights under
these 	circumstances. 	See 	Utah 	Code 	Ann. 	§ 	80-4-104(4)(a)
(LexisNexis Supp. 2022). The State concedes that “the juvenile
court’s findings [regarding permanent guardianship] could be
more complete,” yet asserts that “implicit[] reject[ion]” is all that
is needed. It asks us to assume, post hoc, that if the juvenile court
had considered a permanent guardianship on the record, it would
have denied it. In the State’s words, what is missing is “essentially
one sentence.” We disagree.
¶41 	There are two problems with the State’s argument. First, if
we were to infer that the juvenile court denied permanent
guardianship, it would open the door to new deficiencies. The
court states only that terminating Mother’s parental rights “is
strictly necessary . . . so the [C]hildren can be adopted and achieve
security, stability, and a sense of permanency.” If we read this
statement 	as implicitly 	rejecting 	permanent 	guardianship, 	it
would convey categorical concerns of stability and permanency,
and our supreme court has already made clear that a categorical

In re K.Y.
20210595-CA 	22 	2022 UT App 149
concern of permanency “is not the question under our law.”12 See
In re J.A.L., 2022 UT 12, ¶ 24.
¶42 	To escape this flaw, the State asserts, under a generous
reading of the court’s order, that the court “provided some
additional detail.” Specifically, the State points to the court’s
findings, made in its best interest analysis, that Mother is unable
“to take direction from” therapists and “to emotionally support
[the] Children.” It argues that the court relied on these facts, too,
in finding termination strictly necessary. We note that reading the
12. Mother goes one step further and asserts that stability per se is
an “insufficient” ground to find termination strictly necessary.
We 	disagree. 	Although 	categorical 	concerns 	of 	stability 	are
inadequate, concerns derived from “personal” and “particular”
needs for stability are sometimes adequate. See, e.g., In re E.R.,
2019 UT App 208, ¶¶ 12, 14, 457 P.3d 389 (determining the court’s
emphasis on permanency to be “in this case” “reasonable,” in part
because it rested not on “the general desirability of permanency”
but instead on the child’s particular “psychological issues,”
including “behavioral and emotional dysregulation, secondary
post-traumatic 	stress 	disorder 	(PTSD), 	mood 	disorder 	and
Asperger’s” (quotation simplified)), aff’d, 2021 UT 36, 496 P.3d 58.
Whether 	the 	record 	before 	us 	reflects 	such 	particular
vulnerabilities is beside the point because the juvenile court did
not tailor its analysis in this regard.
Relatedly, 	Mother 	asserts 	permanency 	is 	“entirely
irrelevant 	to 	the 	consideration 	of 	permanent 	custody 	and
guardianship because no disruption would occur—the Children
would stay in the Kinship Placement and have parent-time with
Mother, as had been occurring throughout the case.” But it is not
the case (as Mother claims) that the legal change from kinship
placement 	to 	guardianship 	would 	cause 	“no 	disruption.”
Although a permanent guardianship would be much the same
arrangement as has been in place, the current arrangement has
been disruptive. The evidence reflects as much. See supra ¶ 24.

In re K.Y.
20210595-CA 	23 	2022 UT App 149
order in this light requires a second inference, as it is not clear that
the court relied on other findings within the best interest analysis
at large when it “implicitly rejected” a permanent guardianship.
And even if we made that inference, that argument would not win
the day.
¶43 	This brings us to the second problem with the State’s
argument. Our caselaw is clear that before terminating parental
rights, a juvenile court must state, on the record, its reasons for
rejecting feasible alternatives. See In re B.T.B. II, 2020 UT 60, ¶ 74;
In re C.T., 2018 UT App 233, ¶ 16, 438 P.3d 100. This leaves no
room for “implicit” rejection. Indeed, cases like the one before us
emphasize why it is imperative for the juvenile court to state its
reasoning: if our analysis is guided not by the termination
decision itself but instead by the record, conducting a holistic
inquiry of the circumstances, it is far from obvious why it compels
rejecting permanent guardianship here. To put it another way, we
do not find the facts before us so egregious that this conclusion
must follow.
¶44 	Suppose the juvenile court had considered a permanent
guardianship 	on 	the 	record, 	accounting 	for 	the 	following:
Mother’s learned awareness of the Children’s needs; how, during
recent parent-time, she managed M.Y. safely; her substantial
compliance with the family plan;13 reports by DCFS portraying
13. On appeal, Mother asserts that, “[c]ontrary to the juvenile
court’s finding, Mother complied with all—not some—of the
requirements in the [family plan].” We disagree. The family plan
required Mother to complete group treatment and parenting
classes and to obtain an updated medication assessment. See supra
¶ 5. And it is not clear from the record that these requirements
were 	satisfied. 	Contrary 	to 	Mother’s 	assertions, 	the 	record
suggests Mother participated only in individual therapy, did not
complete the parenting classes, and did not submit her medical
(continued…)

In re K.Y.
20210595-CA 	24 	2022 UT App 149
Mother’s improvement; the Children’s preferences to spend time
with Mother;14 and the fact that even the caseworker, at least at
the 	time 	of 	the 	permanency 	hearing, 	felt 	“comfortable”
recommending 	supervised 	parent-time.15 	“Presented 	with
evidence like this, the juvenile court could have reasonably gone
either way on the [strict necessity] question.” See In re J.M., 2020
UT App 52, ¶ 40, 463 P.3d 66. It is at least possible that if the court
had considered these facts in analyzing permanent guardianship,
it would find this option in the Children’s best interest. In short,
if all that is missing from the court’s termination order is “one
sentence,” how to draft it (or even which conclusion it would
reach) is not obvious to us.
¶45 	Termination is “a drastic measure,” to be “resorted to only
in extreme cases.” In re B.T.B. I, 2018 UT App 157, ¶ 12, 436 P.3d
assessment to DCFS. Thus, we do not find persuasive Mother’s
argument that she complied with “all” of the family plan. And,
even if we did, the upshot of full, as opposed to substantial,
compliance is unclear to us: as the juvenile court recognized,
“compliance with [the family plan] isn’t the sole requirement” to,
or consideration in, avoiding termination of one’s parental rights.
14. Trial testimony suggested M.Y. enjoyed parent-time with
Mother. Although the court ultimately found in its termination
order that the twins “both expressed to the court on numerous
occasions that they want to remain in their current placement and
be adopted by [Aunt] and [Uncle],” it does not necessarily follow
from this that the twins want to stop spending time with Mother.
In fact, some portions of the record suggest the opposite: S.Y.
testified she enjoyed recent parent-time with Mother, and K.Y.
reported she did not “really like” nor “want to live with” Mother,
but she did not “like to lose her either.”
15. These are considerations the juvenile court may weigh in its
best interest analysis. See supra ¶ 33.

In re K.Y.
20210595-CA 	25 	2022 UT App 149
206, aff’d, 2020 UT 60, 472 P.3d 827 (quotation simplified). If the
juvenile court finds it necessary to employ this measure, it must
follow the procedure in place, which requires, in part, articulating
“supported reasons for rejecting” any feasible alternatives. See In
re C.T., 2018 UT App 233, ¶ 16. In this case, the scope of that
analysis includes permanent guardianship. Without it, we are
asked to uphold, on inference and conjecture alone, the juvenile
court’s termination order, and this we decline to do.
¶46 	Importantly, though, it is not our view that under no
circumstances can the facts of this case call for termination. To the
contrary, they might. But this is a decision for the juvenile court,
as a finder of fact, and not for us. The court’s failure to make this
decision constitutes a threshold legal error that must be resolved.
II. Entirety of the Evidence
¶47 	Mother also contends the juvenile court erred by “fail[ing]
to consider all the facts relevant to the best interest analysis.” We
agree in part.
¶48 	Juvenile courts have “an affirmative mandate . . . to give
full and careful consideration to all of the evidence presented with
regard to the constitutional rights and claims of the parent.” In re
G.D., 2021 UT 19, ¶ 76, 491 P.3d 867 (quotation simplified). Within
this broad analysis, the juvenile court should consider “any
evidence that is probative in determining what is in the child’s
best interest,” including, as relevant to our purposes, a child’s
emotional needs and a parent’s efforts to adjust her conduct. See
In re T.E., 2011 UT 51, ¶ 41, 266 P.3d 739 (emphasis added); Utah
Code Ann. § 80-4-303(1)(a), (b) (LexisNexis Supp. 2022). Thus, in
the 	case 	at 	hand, 	evidence 	implicating 	Mother’s 	ability 	to
understand the Children’s emotional needs, and her efforts to
adjust her parenting skills accordingly, fell within this affirmative
mandate. Moreover, because a best interest analysis is “conducted
in present-tense fashion, as of the date of the trial or hearing
convened to consider the matter,” such evidence may continue to

In re K.Y.
20210595-CA 	26 	2022 UT App 149
fall within the court’s mandate, if presently relevant. See In re A.H.,
2022 UT App 114, ¶ 58, 518 P.3d 993.
¶49 	Throughout the permanency hearing and the termination
trial, Mother elicited testimony discussing the ways in which the
pandemic and the peer parenting program’s delay affected her
progress. Collectively, testimony suggested the pandemic created
obstacles for Mother surrounding the frequency, length, format,
and location of therapy and parent-time.16 And as to the peer
parenting program, the testimony showed that because Mother
was on a four-month waiting list, she began the program fourteen
months into the case, leaving her with only four months of
reunification services to complete the program. Mother contends
the 	court’s 	failure 	to 	account 	for 	this 	evidence 	constitutes
reversible error because it could alter conclusions the court relied
on in its best interest analysis: that Mother failed to “internalize
skills from therapy” and was unable to “meet the Children’s
emotional needs.”
¶50 	Although the juvenile court did not address either the
pandemic or the peer parenting program waitlist in its best
interest analysis, or even within the termination order, the court
did address Mother’s pandemic defense during the permanency
hearing. There, the court considered the pandemic’s effect on
Mother’s receipt of services, noting the pandemic “thr[ew] a
monkey-wrench” into the child-welfare and court systems but “in
no way . . . stop[ped] any of [Mother’s] services.” Also during the
permanency hearing, the court acknowledged that parent-time
moved outdoors but found that there was “[n]othing wrong with
[parent-time] occurring in a park,” as it is something children love
and something that Mother would have to do in the future–
pandemic or not. If anything, the court saw the pandemic as a
16. The record contradicts the State’s assertion that “every witness
rejected Mother’s suggestion that her services were disrupted by
the pandemic.”

In re K.Y.
20210595-CA 	27 	2022 UT App 149
“blessing” 	to 	Mother’s 	progress, 	insofar 	as 	it 	provided 	an
opportunity to have “multiple therapists . . . participate in the
hearings” at the same time, which is uncommon in DCFS cases.
¶51 	Though perhaps it would have been better for the juvenile
court to address the pandemic defense in its termination order,
we cannot agree with Mother that this omission constitutes a
failure to fulfill the court’s “affirmative mandate . . . to give full
and careful consideration to all of the evidence.” See In re G.D.,
2021 UT 19, ¶ 76 (quotation simplified). The nature of the
permanency hearing and that of the trial, and the evidence
presented at each, significantly overlapped. And the juvenile
court considered the effect of the pandemic at the permanency
hearing. There, the court found the evidence unpersuasive and
explained 	its reasoning. 	Requiring the 	court 	to 	reiterate 	its
reasoning in its termination order would be redundant. And
overturning the court’s decision because a reasonable mind could
disagree with it would be judicial overreach. See In re E.R., 2021
UT 36, ¶ 32, 496 P.3d 58 (providing that, unless the juvenile court
“failed to consider all of the facts or reached a decision against the
clear weight of the evidence,” “[a] measure of deference is owing”
to the court’s decision and that decision “should be respected”
(quotation simplified)).
¶52 	Neither the permanency nor termination orders address
the peer parenting program’s delay. In response to Mother’s
argument that this was in error, the State counters that the
program “was but one additional service.” This misses the mark.
That rebuttal speaks only to the persuasive value of Mother’s
defense—a question of fact17—and does not get to the heart of the
present issue: whether the court had a duty, under its “affirmative
mandate,” 	“to 	give 	full 	and 	careful 	consideration” 	to 	the
testimony at issue. See In re G.D., 2021 UT 19, ¶ 76 (quotation
17. Indeed, the State raised this same argument at the permanency
hearing.

In re K.Y.
20210595-CA 	28 	2022 UT App 149
simplified). “Extra” or not, the program was a family plan
requirement. See supra ¶ 5. And we do not see it as outside all
possibility for the juvenile court to have found this delay affected
Mother’s ability to internalize new parenting skills (affecting, by
proxy, her “constitutional rights and claims”) had the court
considered it on the record. See In re G.D., 2021 UT 19, ¶ 76. The
court should, on remand, if presently relevant, account for the
program’s delay, stating why it does or does not find that defense
persuasive.
CONCLUSION
¶53 	The juvenile court’s failure to consider, on the record,
feasible 	termination 	alternatives 	brought 	before 	it—here,
permanent guardianship—constitutes a threshold legal error. On
these grounds, we reverse. Absent the court articulating its reason
for denying a permanent guardianship, we cannot now pay
deference to its strict necessity analysis or best interest analysis at
large. On remand, the juvenile court must explain why it finds, or
does not find, that a permanent guardianship is in the Children’s
best interest. And the court should do this “based on the situation
at the time of the hearing,” accounting for new, material evidence,
if any, that has developed since the court first conducted its best
interest analysis in June 2021. See In re A.H., 2022 UT App 114,
¶ 58, 518 P.3d 993. The court should factor in the effect of the peer
parenting program’s delay on Mother’s progress to the extent this
evidence is relevant under a present-tense best interest analysis.
Finally, we note that though the court may, in light of its renewed,
present-tense analysis, change its decision, so too may it reach its
same conclusion for different reasons.