In re K.M.

2025 UT App 17

THE UTAH COURT OF APPEALS

IN THE INTEREST OF K.M.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.

D.M. AND T.C.,
Appellants,
v.
M.M.,
Appellee.

Opinion
No. 20230945-CA
Filed February 13, 2025

Fourth District Juvenile Court, Provo Department
The Honorable Brent H. Bartholomew
No. 1140809

Caleb Proulx, Attorney for Appellants
Nathan R. Garcia, Attorney for Appellee
Martha Pierce, Alisha Giles, and Heath Haacke,
Guardians ad Litem

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and AMY J. OLIVER
concurred.

MORTENSEN, Judge:

¶1 Believing her grandson was in danger stemming from the
mental instability of the boy’s mother, a grandmother petitioned
for a protective order seeking custody in July 2016. A juvenile
court granted the temporary protective order. Months later, in
February 2017, the boy’s aunt filed a petition for guardianship,
which the juvenile court granted on a temporary basis. The boy
has been in his aunt’s custody since. A great number of
In re K.M.

proceedings followed, but ultimately the parents entered into a
stipulated agreement with the aunt that gave the aunt temporary
custody of the boy, provided for parent-time, and specifically set
criteria that would provide an avenue for the parents to regain
custody. Years later, when the father petitioned for a return of
custody, the aunt responded by petitioning to make the
guardianship permanent. Ultimately, a trial was held and the
juvenile court, in the fall of 2023, granted the aunt permanent
guardianship.

¶2 The parents appeal and claim several errors by the juvenile
court. We hold that the juvenile court’s findings failed to support
either a conclusion that the boy could not be returned safely to his
parents or, alternatively, that the father failed to substantially
comply with the terms of the stipulated order. As a result, the
aunt’s petition for permanent guardianship should not have been
granted and the father’s petition to dissolve the temporary
guardianship should not have been denied. Accordingly, we
reverse.

BACKGROUND

¶3 KM (Child), who was born in early 2010, is currently nearly
fifteen years old and is the son of TC (Mother) and DM (Father)
(collectively, Parents).

¶4 In July 2016, when Child was about six years old, his
maternal grandmother petitioned for a protective order seeking
custody. The grandmother alleged that Mother’s mental health
issues were placing Child at risk of harm. In September 2016, the
juvenile court entered a temporary protective order.

¶5 About seven months later, in February 2017, MM (Aunt),
who is Child’s maternal aunt, filed a petition for guardianship of
Child. The juvenile court awarded Aunt temporary guardianship
in March 2017. Mother and Father were present at the custody

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proceeding but were unrepresented. Aunt’s amended petition,
filed in April 2017, alleged that Mother had “failed to comply with
the requirements suggested by the guardian ad litem and
ordered” by the juvenile court. Aunt also alleged that Mother
“exhibited serious” mental health issues that “posed a serious
danger” to Child. Specifically, Aunt alleged that Mother had
refused to “comply with prescribed treatment plans” to address
her mental health issues, that she was subjecting Child to
dangerous conditions, that she was neglecting Child’s basic
needs, and that she had left Child unattended at a park. Aunt
also identified multiple criminal charges that Mother and
Father had accumulated. Child was residing with Aunt by the
time the amended petition was filed, in which she specifically
requested the court grant physical custody and guardianship of
Child to her.

¶6 A few weeks after Aunt filed the amended petition, the
juvenile court entered a default judgment against Mother in
response to Aunt’s petition, granting Aunt permanent custody
and guardianship of Child due to Parents’ failure to attend the
scheduled mediation. But just five days after entry of the default
judgment, Parents appeared before the juvenile court—without
legal representation—and requested the judgment be set aside. In
addition, Father submitted a declaration of paternity. The juvenile
court granted the request to set aside the default and scheduled
the matter for trial.

¶7 In late May 2017, while still acting pro se, Parents entered
into a stipulated agreement concerning Aunt’s petition. They
consented to grant Aunt temporary custody and guardianship of
Child for one year. Following this one-year period, Parents could
petition the juvenile court for a review of the custody and
guardianship order, subject to the following criteria:

a. Parents must resolve all criminal charges, avoid any new
charges, and comply with parole requirements;

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b. Parents must receive mental health assessments and
comply with any recommended treatment plans;
c. Parents must provide proof of a stable living environment
and income;
d. Parents must abstain from all substances that are not
legally prescribed;
e. Parents must sign the necessary releases to allow
verification of these goals.

The agreement also provided that Mother and Father were to
have, at minimum, supervised parent-time twice a week for three
hours. There’s no indication in the record that provisions were
made to furnish Parents with legal representation, caseworker
assistance, or support from the Division of Child and Family
Services (DCFS) to help them fulfill the requirements set forth in
the agreement. On the same day, the juvenile court accepted the
stipulation, adjudicated Child as dependent, and incorporated the
terms of the stipulation into an order.

¶8 After the adjudication, Father appears to have encountered
obstacles exercising his parent-time with Child. In March 2018,
Father—still acting pro se—filed a motion to enforce the court’s
order concerning parent-time, alleging that his visits were being
denied or canceled by Aunt. In response, the juvenile court
ordered that Child participate in individual therapy and that
Parents receive their parent-time.

¶9 In April 2018, nearly a year after adjudication, Father, still
acting pro se, submitted multiple letters to the juvenile court
demonstrating his compliance with the court’s order to address
the issues identified at disposition. Specifically, Father provided a
letter from his probation officer confirming that he had
successfully completed probation—including substance abuse
treatment—and was a model probationer, a letter from his
treatment provider stating he had completed substance abuse

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treatment in January 2018, a letter from October 2017 verifying his
successful completion of domestic violence treatment, and
documentation of his income.

¶10 In July 2018, Father, now represented by counsel, again
raised concerns about Aunt’s failure to provide parent-time and
requested that the court lift the requirement for supervised visits.
In response, the juvenile court ordered that supervised parent-
time should continue “individually for both parents” while the
court awaited input from Child’s therapist. A few weeks later, the
therapist submitted an email to the court stating that Child
“enjoyed” his visits with Parents and had not reported any
problems. In addition, the therapist said Child reported wanting
“to have more time with his dad on the visits.” The juvenile court
nevertheless decided to continue requiring that visits with
Parents be supervised.

¶11 In November 2018, Father, again acting pro se, filed a
motion to “terminate guardianship,” in which he asserted that he
was “withdrawing [his] consent to the guardianship appointed
to” Aunt. Father attached a rental agreement as proof that he and
Mother had stable housing. Father also attached a statement in
which he alleged Aunt was not allowing him to exercise his
parent-time or talk to Child. In January 2019, the juvenile court
denied Father’s motion, stating that a petition to modify, rather
than simply a motion, “must be filed in order to give opposing
parties the chance to respond, to allow for mediation and
discovery, and for a trial to take place.”

¶12 About three months later, in April 2019, the juvenile court
ordered unsupervised parent-time for Parents. Later, in May 2019,
the juvenile court directed Parents to submit to a hair follicle test
for illegal substances, indicating that if the results were negative,
overnight visits with Child would begin immediately and if the
results were positive, overnight visits would begin thirty days

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later. The record is unclear if or when this provision was
triggered.

¶13 The next hearing occurred over a year later, in September
2020, after Aunt raised a concern about Parents missing a drug
test in July 2020. The juvenile court ordered Parents to complete
another hair follicle test. At a follow-up hearing held a few weeks
later, it was revealed that Mother’s drug test was negative but
Father’s was positive for marijuana. However, Father submitted a
medical cannabis card to the court.

¶14 Around two weeks later, in early October 2020, Father,
acting pro se, filed a petition to terminate Aunt’s temporary
custody and guardianship of Child. He attached numerous
documents (completion of probation and therapy, employment
records, and proof of housing) to address the concerns outlined in
the disposition order. Aunt filed her response to Father’s petition
along with a counter-petition seeking to terminate Parents’
parental rights.

¶15 In early November 2020, Aunt filed a separate petition to
terminate Parents’ parental rights—despite the ongoing
disposition proceedings related to Aunt’s April 2017
guardianship petition. A pre-trial hearing was held the same day
to address the appointment of counsel in light of Aunt’s petition
to terminate parental rights, and counsel was appointed to
represent Father. A month later, counsel was appointed for
Mother.

¶16 In March 2021, Aunt sought permission to amend her
petition to terminate parental rights to instead request permanent
custody and guardianship of Child. The juvenile court granted
this motion. A few weeks later, in late May 2021, Aunt filed a
motion to appoint a custody evaluator. Then, in August 2021,
Aunt formally withdrew her petition to terminate parental rights.
Given the withdrawal of the petition to terminate, the juvenile
court ultimately vacated the appointment of counsel for Parents.

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New counsel then filed an appearance on behalf of both Parents.
In October 2021, the juvenile court granted Aunt’s motion to
appoint a custody evaluator.

¶17 In July 2022, after several delays involving the custody
evaluation, Aunt and Parents entered into a stipulation to provide
a means for Parents to regain custody of Child based on
implementing the custody evaluator’s recommendations. The
benchmarks that the custody evaluator set included ensuring
Child attended school and completed schoolwork, Parents
showing adequate housing and predictable income, Parents
completing drug testing, Mother participating in psychological
services, and Mother signing appropriate releases of information
to allow her therapist to speak with the custody evaluator.
Significantly, the stipulation provided that “Mother and Father
will cooperate with DCFS to determine if DCFS can appropriately
provide an IHS (in-home services case) that will support Mother
and Father’s compliance with the benchmarks and conditions set
forth” in the stipulation. It further provided that “all parties will
be given an opportunity to propose or provide feedback on any
elements of the IHS prior to finalizing said plan” and that the
“elements of the IHS plan must support Mother and Father in
accomplishing the conditions set forth [in the stipulation] and not
be unduly burdensome or duplicative of the conditions.” An
evaluation would take place at the end of the coming school
year to determine if Parents had met the benchmarks sufficiently
to regain custody of Child. The juvenile court found the
agreement to be in Child’s best interest and incorporated it
(including the provision for services from DCFS) into an order in
August 2022.

¶18 The juvenile court held an evidentiary hearing in early
August 2023 to determine the best permanency outcome for
Child. Notably, at this hearing, the court heard testimony that
Child enjoyed spending time with his younger siblings when he

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visited Parents’ home. 1 A few weeks later, the court issued an
order granting Aunt permanent custody and guardianship and
denying Parents’ request that custody be restored to them.
Parents filed a motion for relief from the order and for additional
findings. The juvenile court subsequently entered an amended
order for permanent custody and guardianship in favor of Aunt.

¶19 The juvenile court identified the following factors as
“leading to” custody and guardianship with Aunt:

1. Criminal activity: The court determined that Parents “seem
to have abandoned their lives of crime” and that there were
“no current outstanding criminal charges and sentences
that should deprive [Parents] from being able to raise their
son.”

2. Domestic violence: The court noted that Parents had
completed domestic violence treatment and that there had
been “no apparent incidents of domestic violence since that
which generated the necessity of having the minor child be
cared for by Aunt.”

3. Illegal drug use: The court determined that Father had
satisfactorily “completed the agreed upon” drug testing.
Mother, “however, successfully completed one test but
failed to undergo the second stipulated test, giving the
excuse that she did not want any more of her hair
removed.” The court interpreted this unwillingness “either
as an indication of her having used substances or a
disinterest in regaining custody of her son.”

4. Income and housing instability: The court determined that
Parents had sufficient resources “to meet their current
needs and that of the children who are now with them.”

1. Parents have several other children together that are younger
than Child.

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But the court was “uncertain whether they can adequately
support [Child’s] financial needs if he was returned to their
full-time custody.” The court was also troubled that
Parents had been in their current home for a short period
of time.

5. Mother’s mental illness: The court was concerned that
“Mother attended less than half of the recommended
therapy sessions” and that “she did not sign and provide a
release of information so her therapist could talk with [the
custody evaluator] about the feasibility of [Child]
returning to Parents’ care.” The court concluded that, given
this condition, the custody evaluator “did not have
adequate information regarding Mother’s therapeutic care
to provide expert opinion to the court about her current
mental state.”

6. Child’s educational progress: While Child’s progress was
deemed “acceptable” by the custody evaluator, the court
viewed it as “subpar and far below [Child’s] potential.”
The court speculated that a “possible explanation for this
less-than-stellar school year was [Child] living for part of
the time with [Parents] in a home that was outside the
school district, and he lived for some of the time with
Aunt.” The court acknowledged, however, that the
newness of attending junior high might also explain his
educational underachievement. The court concluded that
having him attend school from one home would help
improve his educational progress.

7. Medical and dental care: The court determined that
because Parents “forgot about scheduled appointments,”
they had “shown the court that they either are unwilling or
unable to provide essential medical and dental care to their
son even though he is covered by insurance.”

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8. Child’s desire: The court acknowledged that it was “clear”
that Child wanted to “live primarily with” Parents. But the
court stated that Child’s wishes “are not controlling, being
simply one factor it must consider in deciding whether to
reunify him with Parents.” Instead, the court said it had to
evaluate what was in the best interest of Child. The court
noted that Aunt had provided Child with safety and
stability for over six years, saw to his necessities and
educational needs, and had “done all this out of the
goodness of her heart, thereby demonstrating the love she
has for” Child. In contrast, the court observed that Parents
had “failed to reach the thresholds they agreed to for the
court to consider returning their son to them.” Given this
disparity, the court determined that it could not “honor
[Child’s] wishes because doing so in the court’s view
would be contrary to his best interests of providing him
with adequate stable, safe, and consistent primary care that
he needs to thrive.”

¶20 In sum, the juvenile court concluded that Parents’ success
in leaving behind criminal activity, completing domestic violence
treatment, and finding stable employment was “[overshadowed]
by what they have not done” in the “over six years” they had “to
remedy the situation that led to their son being cared for outside
their home.” The three factors that appear to have most troubled
the court were housing—because Parents had only recently
signed a one-year lease—Mother refusing to take the second drug
test, and Mother not completing her mental health treatment.
Notably, Parents were awarded parent-time with Child.
However, the court ordered that Mother’s parent-time was to be
supervised by Father until she could demonstrate abstinence from
illicit substances and address her mental health issues.

¶21 Parents appealed in October 2023, and the guardian ad
litem (GAL) subsequently requested a hearing on Parents’ motion
for relief from the juvenile court’s order granting Aunt permanent

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custody and guardianship. In anticipation of this hearing, the
juvenile court interviewed Child near the end of January 2024.

¶22 The hearing requested by the GAL occurred a few days
after the interview. Before arguments were made on Parents’
motion, the juvenile court distributed a “Proposal” that provided
“a way to rescind the permanent custody and guardianship
awarded to [Aunt] and give [Parents] one last chance to regain
custody” of Child. The Proposal had provisions for drug testing,
Child’s medical and dental care, verification of income and
housing, completion of therapy, Child’s academic progress,
parent-time, and child support. The Proposal stated that “a final
hearing [would be held] in six months to determine” if Child
should be returned to custody of Parents or if Aunt should be
awarded permanent custody. The Proposal also stated that if “the
parties accept the foregoing proposal, the current appeal will be
dismissed so all can focus on what they have agreed to.” The court
gave them one week to discuss the Proposal.

¶23 Aunt and Parents apparently could not agree on the
Proposal. The minute entry simply states that counsel reported
“there [would] likely not be an agreement.” And in February 2024,
the court issued a written decision denying Parents’ motion for
relief and their request for additional findings.

ISSUES AND STANDARDS OF REVIEW

¶24 Determinative in this appeal is Parents’ assertion that the
juvenile court applied the incorrect standard for reunification
services. “Whether the juvenile court applied the appropriate
legal standard [in a custody hearing] is a question of law that we
review for correctness.” In re S.M., 2007 UT 21, ¶ 15, 154 P.3d 835;
see also In re C.C., 2013 UT 26, ¶ 12, 301 P.3d 1000; In re adoption of
B.T.D., 2003 UT App 99, ¶ 13, 68 P.3d 1021; In re H.R.V., 906 P.2d
913, 915 (Utah Ct. App. 1995). Relatedly, Parents claim that the
juvenile court abused its discretion in rejecting the evidence that

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Parents had “long remedied the circumstances that led to the 2017
temporary guardianship.” We review a juvenile court’s factual
findings supporting a conclusion that parents failed to meet the
requirements of a service plan under the clearly erroneous
standard. In re E.R., 2001 UT App 66, ¶ 11, 21 P.3d 680. 2

ANALYSIS

I. The Correct Standard for Reunification Services

¶25 Parents and the GAL assert that the juvenile court applied
the wrong standard in determining whether Parents could be
reunified with Child. To be frank, it’s not entirely clear what
standard the juvenile court applied—apart from a general best
interest analysis—in reaching its decision as a standard was never
articulated. But given the procedural disposition of this case, the
court arguably should have been guided by this standard:
whether Child could safely be returned to the care of Parents. And
it’s clear to us that this was not the standard applied by the
juvenile court when it made its custody determination.

¶26 As we have laid out, in May 2017, Parents entered into a
stipulated agreement concerning Aunt’s petition for custody and
guardianship. In the agreement, Parents consented to grant Aunt
temporary custody and guardianship of Child for one year.
Following this time, Parents would be allowed to petition the
juvenile court for review of the guardianship arrangement if they

2. Parents also claim on appeal that the juvenile court erred in
failing to recognize that Child’s “fundamental right to family life
is a source of an independent presumption that a child should be
raised in the custody of fit parents.” Parents further assert that the
juvenile court abused “its discretion in failing to give [Child’s]
wishes dispositive weight.” Due to our resolution on other
grounds that the order of guardianship must be reversed, we need
not address these questions.

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proved compliance with certain conditions that would ensure the
safety of Child. The juvenile court accepted this agreement,
adjudicated Child as dependent, and incorporated the terms of
the stipulation into an order. See supra ¶ 7.

¶27 We understand the juvenile court’s incorporation of the
stipulation’s terms by which Parents could petition for review of
Aunt’s temporary guardianship to be an order of reunification
services. 3 After all, the stipulation listed a set of conditions Parents
were to meet, in the judgment of the juvenile court, in order to
regain custody of Child. Significantly, the second stipulation that
incorporated the recommendations of the custody evaluator and
that was adopted by the court specifically stated Mother and
Father were to “cooperate with DCFS to determine if DCFS can
appropriately provide an IHS (in-home services case) that will
support Mother and Father’s compliance with the benchmarks
and conditions set forth” in the stipulation, specifically noting the
“elements of the IHS plan must support Mother and Father in
accomplishing the conditions set forth [in the stipulation] and not
be unduly burdensome or duplicative of the conditions.” See Utah
Code § 80-3-406 (addressing reunification services a juvenile court
offers in the context of a permanency plan).

¶28 When reunification services are offered, the juvenile court
must ultimately determine “whether the minor may safely be
returned to the custody of the minor’s parent.” See id. § 80-3-

3. Aunt concedes as much in her brief: “While reunification
services were not offered in this case, there were stipulated
conditions upon which [Parents] needed to meet to regain
custody of [Child] which were akin to reunification services.
These stipulated conditions were not simply recommendations
but were incorporated into a specific order which was adopted
and agreed to in [Child’s] ‘best interest.’”

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409(2)(a). 4 In making this “determination, . . . the juvenile court
shall . . . review and consider,” among other information, “any
admissible evidence offered by the minor’s attorney guardian ad
litem” and “any evidence regarding the efforts or progress
demonstrated by the parent.” Id. § 80-3-409(3). The failure of the
parent to “participate in a court approved child and family plan”
constitutes “[p]rima facie evidence that return of the minor to a
parent or guardian would create a substantial risk of detriment to
the minor.” Id. § 80-3-409(2)(c).

¶29 The juvenile court failed to properly apply this standard
when it awarded permanent custody and guardianship to Aunt.
Indeed, the juvenile court did not purport to be applying this
standard, and the clear weight of the evidence indicated that
Parents were at least minimally fit and had remedied the safety
issues that led to Child being placed in the temporary custody of
Aunt. Parents were clearly participating “in a court approved
child and family plan.” Id. And while they were admittedly not
following that plan to the letter, they had, considering all the
evidence, demonstrated that Child could safely be returned to
their custody. See id. § 80-3-409(2).

¶30 We now address each of the safety issues in turn. 5

4. Under Utah Code section 80-3-409(1)(a), a permanency hearing
is to take place no later than twelve months after the minor is
removed from the home.

5. In doing so, we observe that the juvenile court’s analysis of
these factors exceeded the scope of the actual benchmarks from
the custody evaluator that the court adopted in its order. See supra
¶ 17. For example, the benchmarks make no mention of dental or
medical care, and they required only that Parents secure “more
adequate housing arrangements (at least a 3-bedroom dwelling).”

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¶31 Criminal activity. Parents were required to resolve all
criminal charges and avoid new criminal charges. They appear to
have done so to the court’s satisfaction. Indeed, the court
determined that Parents had “abandoned their lives of crime” and
that there were “no current outstanding criminal charges” or
“sentences” that would deprive them of being able to raise Child.
Thus, there was no evidence that criminal activity of Parents
threatened the safety of Child.

¶32 Domestic violence. The court also acknowledged that
issues surrounding domestic violence had been addressed. There
was no evidence of ongoing safety concerns related to this factor.

¶33 Illegal drug use. While the court states that Father had
satisfactorily “completed the agreed upon” drug testing, it noted
that Mother had failed to undergo the second agreed-upon test
because she didn’t want any more of her hair removed. The court
interpreted this refusal as an “indication” of Mother “having used
substances or a disinterest in regaining custody” of Child. This
conclusion was against the clear weight of the evidence. As to the
court’s first conclusion (namely, that Mother was using illegal
substances), the evidence showed that Mother was receiving an
opiate blocker as part of her treatment. To qualify for the program
that provided the opiate blocker, Mother was required to
complete a monthly drug test. In fact, when asked if she was
concerned that not taking the hair follicle test might be
“potentially indicative” that she was being “evasive,” Mother
testified that she was not concerned about that possibility because
she was already taking “so many different drug tests . . .
throughout the month.” In a like manner, the custody evaluator
stated that Mother’s failure to complete the hair follicle test
“concern[ed] [him] less” because the other drug tests she was
required to take as part of her treatment “demonstrate[ed] that
she [had] likely remained sober.” So, contrary to the court’s
conclusion, the clear weight of the evidence was that Mother had
not used illegal substances for a long period of time. As to the

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court’s second conclusion, the evidence very much demonstrated
an interest in regaining custody of Child. Indeed, Mother was
clear that she enjoyed her time with Child and wanted to spend
more time with him. In any case, there is no evidence that
Mother’s failure to complete the second hair follicle test raised a
legitimate safety concern.

¶34 Housing and income. The court was skeptical that Parents
could “adequately support [Child’s] financial needs if he was
returned to their full-time custody.” And the court stated that “it
remains to be seen whether they can remain in their home
throughout the remainder of their one-year lease.” But neither of
these circumstances, apart from sheer speculation, indicate that
the situation was presently unsafe or unsuitable for Child.

¶35 Mother’s completion of therapy. The court expressed
concern that Mother had missed a significant number of her
therapy sessions and failed to sign a release of information to
allow the custody evaluator and her therapist to discuss the
feasibility of Child returning to Parents’ care. These are legitimate
concerns, but they do not necessarily relate to the safety of Child,
especially when considered alongside the additional evidence
presented. In fact, the court found that the custody evaluator “did
not have adequate information regarding Mother’s therapeutic
care to provide expert opinion to the court about her current
mental state.” And the court found that the custody evaluator
testified if Mother “had experienced a psychotic break,” her
delusions “seem[ed] to have stopped” by the time of the
evidentiary hearing. In fact, the custody evaluator testified that
while Mother did appear to have “some significant mental health
issues,” he acknowledged that his assessment of her condition
was “somewhat of a triage diagnosis as opposed to . . . an in-depth
analysis.” However, the evaluator testified that “despite [his]
concern about her mental health, the best evidence that we have
suggests that she’s able to adequately care for her own children.”
And when asked if he felt “comfortable stating that both . . . the

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natural parents would be adequately able to parent the children
they have right now,” the custody evaluator responded, “Yes.”
When asked if this opinion extended to Child, the evaluator said
that it did. In addition, Aunt testified (at the same permanency
hearing in August 2023) that the last time she had witnessed
Mother have a mental health episode was “the very beginning of
2017.” Given this testimony, the juvenile court failed to make any
finding that Mother’s mental health—based on the evidence
received at the permanency hearing—impacted her present
ability to care for Child or created a safety issue that would
prevent Child from returning to the care of Parents.

¶36 Medical and dental care. While the court did make a
finding that Parents “forgot about scheduled appointments,” it
did not articulate how this failure prevented Child from safely
returning home. While we certainly agree that routine medical
and dental care is essential for a young person, we are hard-
pressed to see how missed appointments could not be addressed
by simple interventions provided through support services.

¶37 Child’s educational progress. The juvenile court also
made findings about what it characterized as Child’s “subpar”
academic progress. But it equivocated about the cause, and it
never articulated how this factor amounted to a safety concern.

¶38 Rather than looking to whether Child could safely return
home, it appears that the juvenile court defaulted to awarding
permanent custody and guardianship to Aunt. The court stated,
“The . . . award of permanent custody and guardianship of [Child]
to [Aunt] neither severs his relationship nor stops him from
interacting with [Parents] and siblings. Terminating Parents’
rights would do that, but such action would likely be detrimental
to [Child] and not in his best interests.” To be clear, there was no
petition to terminate Parents’ rights after Aunt withdrew her
(apparently ill-conceived) petition to that effect. So we are
confused as to why the juvenile court drew this distinction in its

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analysis. The choice was not between termination of parental
rights and permanent custody with Aunt. Rather, this matter was
before the juvenile court on Aunt’s petition for permanent
custody and guardianship and Parents’ related petition to
terminate Aunt’s temporary guardianship. Simply put, there
should not have been talk of termination of parental rights at this
point in the proceeding. The proper standard was whether the
clear weight of the evidence supported that Child could safely
return to the custody of Parents.

¶39 Finally, insofar as the court had ongoing concerns about
whether Parents would follow through on providing appropriate
housing, arranging medical and dental care, monitoring of
Child’s academic progress, and completing therapy, it could have
ordered support services along with restoring custody to parents,
as it is clearly allowed to do. See Utah Code § 80-3-409(9) (“The
juvenile court may, in the juvenile court’s discretion . . . enter any
additional order that the juvenile court determines to be in the
best interest of the minor . . . or . . . order [DCFS] to provide
protective supervision or other services to a minor and the
minor’s family after [DCFS’s] custody of a minor is terminated.”).
The juvenile court has ongoing jurisdiction over Child. See In re
M.J., 2011 UT App 398, ¶ 49, 266 P.3d 850 (“Once the juvenile court
has adjudicated the child as falling under its jurisdiction, it has
ongoing jurisdiction over that child.”); see also Utah Code § 78A-
6-120(1). With that authority, the court could have ordered DCFS
to assign a caseworker to assist Parents in budgeting, obtaining
available public assistance, monitoring Child’s educational
progress, and ensuring Child receives proper medical and dental
care. The caseworker could also have acted as a liaison between
Mother and her therapists. The juvenile court could have
scheduled regular reviews until it was satisfied that Parents no
longer needed such support.

¶40 In sum, we conclude that the evidence only supports a
conclusion that Child could be returned to his Parents safely, the

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petition for permanent guardianship should have been denied,
and the juvenile court’s determination to the contrary was the
result of applying an incorrect standard. Therefore, the order
granting permanent guardianship to Aunt is reversed, as is the
order denying Father’s petition to dissolve the temporary
guardianship.

II. Compliance with the Order

¶41 Although Parents have brought this appeal jointly, they
still remain separate and distinct parties. Moreover, the rights that
they assert are individual. Indeed, “it is axiomatic that once a child
is placed [in a temporary guardianship] due to the abuse or
neglect of the child’s parents, it is incumbent upon each parent,
individually, to take those steps necessary to cure the problems that
led to the loss of his or her custody. One parent’s success or failure
does not necessarily affect the success or failure of the other
parent.” In re A.M., 2012 UT App 115, ¶ 4, 280 P.3d 422 (per
curiam) (emphasis added). This means that “it is entirely possible
that one parent may successfully regain custody of the child,”
while the other parent does not. Id. Accordingly, in reviewing the
decision of whether the permanent guardianship was properly
granted, we must review the juvenile court’s findings and weigh
them against its conclusion as to each parent individually. The
GAL asserts that Father substantially complied with the juvenile
court’s order, and we agree. On this independent basis, the
juvenile court should have denied Aunt’s petition for permanent
guardianship and returned Child to Father.

¶42 Here, the juvenile court found that, as to criminal activity
and domestic violence, Father (actually, both Parents) had
resolved the court’s concerns. Concerning drug testing, while the
court found Mother non-compliant due to a single missed drug
test, the court expressly found that Father was completely
compliant. The court’s concerns regarding Mother’s mental illness
did not touch upon Father’s compliance with the order. Indeed,

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In re K.M.

as outlined above, at a certain point the court established Father
as the proper person to supervise Mother’s visitation.

¶43 As to income and housing, the order required that Parents
provide proof of a stable living environment and income. The
court found that Parents had sufficient resources to meet their
current needs and that Parents had adequate housing. While the
court expressed uncertainty about whether their resources were
sufficient for an additional child, the court did not find that this
requirement was lacking. And while the court expressed that it
was troubled that their current living situation had only existed
for a short period of time, the court did not find that Parents had
failed to meet this condition. In all of these particulars, the court
found no lack of compliance on Father’s part.

¶44 As to Child’s educational progress, the court did not make
a finding of failure to comply with the order. In fact, the order had
requirements only about attendance, tardiness, and the
completion of homework. It did not touch on any measures of
academic success, such as grades. Instead of focusing on the
benchmarks, the court found that any “less-than-stellar”
performance in school could be explained by living at multiple
homes and the common stresses of entering junior high. The court
surmised that attending school from one home would help
improve his educational progress. Accordingly, this is a neutral
finding and not one that can be held against either Mother or
Father, especially given that the court’s analysis appears to have
exceeded the scope of the stipulated benchmark.

¶45 The only possible item of non-compliance is the court’s
finding that Parents forgetting about scheduled appointments
with doctors or dentists showed an inability to provide essential
medical and dental care. Notably, this factor was not among the
stipulated benchmarks, so we are hard-pressed to see the
justification for requiring Parents to comply with it at all, let alone
so strictly. We therefore conclude that this sole finding, especially

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vis-à-vis Father, is insufficient to establish non-compliance with
the stipulated order or to provide a basis to grant the petition for
permanent guardianship.

¶46 On an ancillary note, once the juvenile court had
determined Father substantially complied with the stipulated
order, Mother’s compliance with that same order—at least insofar
as granting permanent custody to Aunt was concerned—was a
non-issue. In other words, addressing Mother’s right to
reunification was essentially rendered moot by the court’s
determination that Father had complied with the provisions of the
stipulated order. See State v. Steed, 2015 UT 76, ¶ 6, 357 P.3d 547
(“An appeal is moot if the controversy is eliminated such that it
renders the relief requested impossible or of no legal effect.”
(cleaned up)); see also In re D.A.T.R., 2024 UT App 185, ¶ 34 (“The
defining feature of a moot controversy is the lack of capacity for
the court to order a remedy that will have a meaningful impact on
the practical positions of the parties.” (cleaned up)). Thus, we
alternatively conclude that since Father substantially complied
with the provisions of the stipulated order as adopted by the
court, there was no basis to award permanent guardianship to
Aunt and the motion to terminate temporary guardianship
should have been granted.

CONCLUSION

¶47 We reverse the award of permanent custody and
guardianship to Aunt as well as the denial of Father’s petition to
dissolve the temporary guardianship. We hold that the juvenile
court’s findings do not support a conclusion that Child could not
be returned safely to Parents. Alternatively, Father substantially
complied with the terms of the stipulated order. As a result, Child
should have been reunified with his Father, with the issue of
Mother’s right to reunification thereby being rendered moot
insofar as Aunt’s petition was concerned.

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