In re D.S....

2023 UT App 98

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF D.S. AND K.S.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.

S.S.,
Appellant,
v.
STATE OF UTAH,
Appellee.

Opinion
No. 20220956-CA
Filed August 31, 2023

Third District Juvenile Court, Salt Lake Department
The Honorable Annette Jan
No. 1198250

Sheleigh A. Harding, Attorney for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and
John M. Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and AMY J. OLIVER concurred.

HARRIS, Judge:

¶1 After a trial, the juvenile court terminated S.S.’s (Father)
parental rights regarding his two children, D.S. and K.S.
(collectively, the Children), concluding that it was in the best
interest of the Children for them to be adopted by their paternal
grandmother (Grandmother). Father appeals the court’s
termination order, asserting that—under the precise
circumstances presented here, where the Children are being
placed with Father’s own mother and where permanent
In re D.S.

guardianship remains a viable option—termination of his rights
was not strictly necessary to promote the best interest of the
Children. We agree with Father, and reverse the juvenile court’s
termination order.

BACKGROUND

¶2 Father is the biological father of K.S., a boy born in 2010,
and D.S., a girl born in 2016. Father resided with the Children and
their mother (Mother) from the time the Children were born until
approximately 2018. In 2014, the Division of Child and Family
Services (DCFS) received a report that Father had committed
“Domestic Violence related child abuse” against K.S. and some of
the Children’s other siblings; most notably, the report alleged that
Father had “cut [a sibling’s] hand with a knife.” DCFS found the
allegations “supported,” but it did not take action to remove K.S.
at that time, and no criminal charges were ever filed.

¶3 Around 2017, after D.S. was born, a protective order was
entered against Father, for reasons unclear from this record, that
restricted his ability to contact Mother. Even after entry of the
protective order, though, Father continued to reside with Mother
for about another year, in apparent violation of that order.
Eventually, in 2018, Father and Mother went through “a messy
break up” and separated; the Children remained in Mother’s
custody. In the year following the separation, Father spent time
with the Children on a regular basis through “weekend visits”
that Grandmother initiated and staged at her house.

¶4 During this time period, Father was arrested for
“possession of a dangerous weapon”—“a pocketknife in [his]
pocket”—in connection with various “protective order
violations.” In late 2019, he was sentenced to prison, and ordered
to serve a term of zero to five years. When Father first got to
prison, he was unable to visit with the Children—even virtually—
due to the continued existence of the protective order, but in

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March 2020, after obtaining a modification to that order, he began
visiting with the Children through weekly “video visits” or
“phone visits.” In the beginning, it was Grandmother who “was
really insistent” that these virtual visits take place between Father
and the Children. And since 2020, such visits have occurred on
more or less a weekly basis.

¶5 In early 2021, while Father was still incarcerated, the
Children were removed from Mother’s custody after an incident
in which Mother abandoned them. The Children were later
adjudicated neglected as to Mother and dependent as to Father,
and the juvenile court placed them with Grandmother. In later
proceedings, Mother’s parental rights were terminated, a
determination Mother has not appealed. And due to Father’s
ongoing incarceration, reunification services were never offered
to him; the juvenile court set a permanency goal of adoption.

¶6 In January 2022, the State filed a petition seeking to
terminate Father’s parental rights regarding the Children. Prior to
trial on that petition, Father stipulated that—largely due to his
incarceration—the State could show at least one statutory ground
for termination of his parental rights. But the case proceeded to
trial on the other element of the termination test: whether
termination was strictly necessary to promote the best interest of
the Children. On that point, Father took the position that
termination of his rights was not strictly necessary, given that—at
least in his view—he had a good relationship with the Children,
they were in the care of his own mother (Grandmother), and he
would undoubtedly be a part of their lives going forward, at least
in some sense, simply due to that reality. He asserted that a
permanent custody and guardianship arrangement would suit
this situation better than adoption would.

¶7 In August 2022, the juvenile court held a relatively brief
trial to consider that issue; during that trial, the court heard
argument from counsel and testimony from three witnesses: the

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DCFS caseworker (Caseworker), Grandmother, and Father. 1 0F

Caseworker testified that the Children were doing well in
Grandmother’s care. She was aware that the Children have
regular virtual visits with Father, but she noted that the Children
“don’t talk [with her] much about” those visits and, when they
do, they often just say “they don’t remember what they talked
[with Father] about.” Caseworker stated that she knows that the
Children “love [Father],” and did not recall either of them ever
saying that they found Father “scary.” But she offered her view
that adoption by Grandmother was in the Children’s best interest,
opining that “adoption is necessary to allow them permanency
and . . . a long-lasting, stable environment.” She also stated that
she had talked to the Children “about adoption” and that the
Children “would like to be adopted by [Grandmother],” but did
not elaborate or offer any context for this conversation.

¶8 Grandmother testified that the Children were doing well
in school and thriving in her care. She acknowledged that, as a
general matter, “fathers are important” in the lives of children,
and she stated that she had been “a big advocate for” Father
throughout the entire saga, even pushing to set up virtual visits
from the prison after Father was first incarcerated. But she
testified that, over time, she had become more of “an advocate for
the [Children],” and offered her view that, due to some of the
“choice[s]” Father had made, the relationship between Father and
the Children had not “functioned properly for a very long time.”
She discussed, at some length, the regular virtual visits that the
Children have with Father, and she acknowledged that Father is
a good listener during the visits. But she stated that the Children
have lost interest in the visits over time, and that the visits are
“hard for” the Children and make them “uncomfortable” because
“they don’t know what to do” during the visits. To cope with the
discomfort, Grandmother has added some “structure[]” to the

1. The trial transcript is composed of just fifty-two pages. And the
three witnesses’ testimony, in total, took just over an hour.

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visits “so that [the Children] would have things to talk about”; for
instance, K.S. often plays the piano for Father during the visits,
while D.S. often “plays kitchen” and pretends to cook things for
Father. Grandmother offered her perception that the Children do
not wish to have regular virtual visits anymore, and that Father
does not understand that the visits are hard for the Children. She
noted that sometimes the Children need to “spend some time kind
of snuggling” with her after the visits. Grandmother also testified
that, on at least one occasion, K.S. said that Father is “scary.”

¶9 Grandmother testified that she is ready, willing, and able
to continue caring for the Children. But she voiced a strong
preference for adopting them rather than acting as their
permanent guardian. When asked why, she offered her view that
adoption would be “less confusing” for the Children and that she
could be “a consistent parent” for them given her “resources.” She
opined that a guardianship arrangement “may suit [Father],” but
she didn’t think it was “in the [C]hildren’s best interests.” She also
stated that she was worried about what would happen to the
Children—and, specifically, whether they would return to
Father’s custody—if something were to happen to her. She
acknowledged, however, that she would be willing to care for the
Children in either form of custody (adoption or guardianship).
And she also acknowledged that, even if Father’s parental rights
were terminated and she were allowed to adopt the Children, she
would nevertheless be open to the possibility that Father could
still have a role in the Children’s lives, and in that situation she
would “ask for some guidance from people that know more than
[she does] about that,” such as the Children’s therapist. She
testified that she had discussed the possibility of adoption with
the Children, and that D.S. had compared it to those “commercials
on TV about adopting a dog.” Referring to that comment,
Grandmother acknowledged that the Children “have some
misconceptions about” what adoption would mean and stated
that she had “tried to fix” those misconceptions, but she offered
no specifics about how she had attempted to do that.

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¶10 Father was the trial’s final witness. In his testimony, he first
described the involvement he has had in the Children’s lives since
their birth, stating that when the family was living together he
saw the Children every day, “took them to school, [and]
everything.” Father acknowledged that the situation had changed
due to his incarceration, and he recognized that the virtual visits
from prison are “not ideal” because there are often other inmates
in the background on video calls and because the technology
sometimes has issues, but overall, he offered his view that the
visits had been going well and that he did not think the visits were
uncomfortable for the Children. As he perceived it, the Children
“seem[ed] excited to see” him and “always tell [him] they love”
him. He credited the virtual visits for allowing him to “maintain
a relationship with” the Children despite his incarceration. He
stated that he had “a really good bond” with K.S., with whom he
shares a connection to music. He also spoke positively of his visits
with D.S., although he acknowledged that D.S. sometimes “gets
upset because [Father] can’t be there with her” in person.

¶11 Father testified that he was scheduled to be released from
prison in December 2022, and he articulated a desire to “have a
stronger relationship with” the Children than he was able to enjoy
during incarceration. Father acknowledged that, immediately
upon his release from prison, he would be in no position to
assume custody of the Children, because he would “have a lot of
stuff to deal with,” like “getting a job,” addressing his housing
situation, and sorting out outstanding “immigration” issues. 2 But
1F

he was vocal about wanting to continue and improve his
relationship with the Children after his release from prison.

2. The record submitted to us does not indicate whether Father
was in fact released from prison on the anticipated date or, if so,
whether Father has taken any steps to resolve his employment,
housing, or immigration issues.

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¶12 After the presentation of evidence, the attorneys made
closing arguments. The juvenile court did not make any ruling on
the record at the close of the trial; instead, it asked the parties to
submit additional briefing on “the issue of strictly necessary.” A
few weeks later, the parties submitted those supplemental briefs,
and thereafter the court issued a written ruling terminating
Father’s parental rights.

¶13 Because Father had conceded the existence of statutory
grounds for termination, the only issue the court needed to
address was whether termination of Father’s rights was in the best
interest of the Children and, as part of that inquiry, whether
termination was strictly necessary to promote the Children’s best
interest. And on that score, the court concluded that termination
was indeed strictly necessary. The court acknowledged that both
Father and Grandmother love the Children. The court also
acknowledged that “there were no allegations of abuse and
neglect regarding [Father] at the time the [C]hildren were ordered
into” the custody of DCFS. 3 But the court found that Father’s
2F

“ability to offer love, affection, [and] guidance, and to continue
with the [C]hildren’s education is very limited both due to his
incarceration and [the Children’s] resistance to engaging with”
Father. The court noted that the Children “have had stability”
with Grandmother and were doing well in her care. The court also
referenced its belief that the Children “desire to remain with and
be adopted” by Grandmother, but it made no determination that
the Children were of sufficient capacity to be able to meaningfully
express their desires in this context.

3. At no point in its written ruling, or at any other time during the
trial, did the court reference the 2014 “supported” allegations of
abuse regarding the Children’s sibling. No witness testified about
those allegations at trial. And while the protective order violations
were mentioned in passing, no witness offered any testimony
about the basis upon which the protective order was granted.

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¶14 In addition, the court opined that adoption was “necessary
and essential to [the Children’s] well-being as it will protect them
from [Father’s] desire to have ongoing and frequent visitation.”
The court chided Father for failing “to recognize that the
[C]hildren . . . do not want to visit with him,” and concluded that
this failure “raises questions as to whether [Father] could act in
the [C]hildren’s best interest.” In the court’s view, the fact that
Father “believes [the Children] enjoy the visits” and that he
“would, ideally, exercise more visitation [after release from
prison] is exactly why a permanent custody and guardianship
neither protects nor benefits the [C]hildren.” The court stated that
a guardianship arrangement would “fail to ensure adequate
protections against [Father’s] commitment for increased and
continued visitation,” and would leave the Children “vulnerable
to [Father’s] residual parental rights.” Indeed, the court observed
that, “under a permanent custody and guardianship order,” the
Children’s “emotional and physical needs” would be “subsumed
by [Father’s] residual rights.” The court offered its view that
adoption would serve the Children’s needs better than
guardianship would, because it “affords them the protection of
ensuring that any future assessment of contact with [Father] will
[be] considered solely from their respective points of view.” The
court stated that, “[i]f the legal assessment for best interest and
strictly necessary was from the parental perspective, permanent
custody and guardianship with [Grandmother] would likely [be]
the best solution.” But it observed that “the legal assessment of
best interest and strictly necessary is focused solely upon the
[C]hildren and their needs” and, viewing the situation from that
perspective, the court concluded that termination of Father’s
rights was strictly necessary to promote their best interest.

ISSUE AND STANDARD OF REVIEW

¶15 Father appeals the juvenile court’s termination order, and
challenges the court’s conclusion that termination of his parental

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rights was strictly necessary to further the Children’s best interest.
“We review a lower court’s best interest determination
deferentially, and we will overturn it only if it either failed to
consider all of the facts or considered all of the facts and its
decision was nonetheless against the clear weight of the
evidence.” In re A.H., 2022 UT App 114, ¶ 30, 518 P.3d 993
(quotation simplified), cert. granted, 525 P.3d 1279 (Utah 2023). But
“we do not afford a high degree of deference to such
determinations; rather, we simply apply the same level of
deference given to all lower court findings of fact and fact-like
determinations of mixed questions.” Id. (quotation simplified).
Moreover, because the “evidentiary standard applicable in
termination of parental rights cases” is “the clear and convincing
evidence standard,” we will “assess whether the juvenile court’s
determination that the clear and convincing standard had been
met goes against the clear weight of the evidence.” Id. (quotation
simplified); see also In re G.D., 2021 UT 19, ¶ 37, 491 P.3d 867
(“Whether the juvenile court correctly concluded there was no
feasible alternative to terminating . . . [the father’s] parental rights
is a mixed question of fact and law,” and “we review the juvenile
court’s findings of fact for clear error and its conclusions of law
for correctness, affording the court some discretion in applying
the law to the facts.” (quotation simplified)).

ANALYSIS

¶16 “The right of parents to raise their children is one of the
most important rights any person enjoys.” In re A.H., 2022 UT App
114, ¶ 31. Perhaps for this reason, our legislature has provided
specific requirements that must be met before a parent’s rights
may be terminated. First, at least one of the enumerated statutory
grounds for termination must be present. See Utah Code § 80-4-
301. Second, termination of parental rights must be in the best
interest of the affected children. In re A.H., 2022 UT App 114, ¶ 32.
“The party seeking termination of a parent’s rights bears the

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burden of proof on both parts of this test,” and “that party must
make this required showing by clear and convincing evidence.”
Id. (quotation simplified).

¶17 At trial, Father did not contest the State’s assertion that at
least one of the statutory grounds for termination of his parental
rights was present. He did, however, contest the State’s assertion
that termination was in the Children’s best interest. And his
appellate challenge to the juvenile court’s termination order is
similarly limited to the best-interest portion of the two-part test.

¶18 “The best-interest inquiry is wide-ranging and asks a court
to weigh the entirety of the circumstances of a child’s situation,
including the physical, intellectual, social, moral, and educational
training and general welfare and happiness of the child.” In re
J.J.W., 2022 UT App 116, ¶ 26, 520 P.3d 38 (quotation simplified).
Our legislature has provided important guidance regarding the
best-interest question. First, statutes emphasize the importance of
maintaining familial relationships where possible. As a general
rule, it is “in the best interest and welfare of a child to be raised
under the care and supervision of the child’s natural parents.”
Utah Code § 80-4-104(8). This is because “[a] child’s need for a
normal family life in a permanent home, and for positive,
nurturing family relationships is usually best met by the child’s
natural parents.” Id. Therefore, “the juvenile court should only
transfer custody of a child from the child’s natural parent for
compelling reasons and when there is a jurisdictional basis to do
so.” Id.; see also In re A.H., 2022 UT App 114, ¶ 31 (stating that a
parent’s “fundamental liberty interest in the care, custody, and
management of the parent’s child . . . does not cease to exist
simply because . . . a parent may fail to be a model parent”
(quoting Utah Code § 80-4-104(1), (4)(a)(i))).

¶19 Next, our legislature requires that termination of parental
rights be “strictly necessary.” Utah Code § 80-4-301(1). “Our
supreme court has interpreted this statutory requirement to mean

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that ‘termination must be strictly necessary to promote the child’s
best interest.’” In re A.H., 2022 UT App 114, ¶ 36 (quoting In re
B.T.B., 2020 UT 60, ¶ 60, 472 P.3d 827). And as the juvenile court
here correctly noted, this inquiry is to be conducted “from the
child’s point of view,” and not from either the parent’s or the
prospective adoptive family’s. See Utah Code §§ 80-4-
104(12)(b), -301(1); see also In re B.T.B., 2020 UT 60, ¶¶ 25 n.5, 64
(stating that the “best interest analysis should be undertaken from
the child’s point of view”). “[W]hen two placement options would
equally benefit a child, the strictly-necessary requirement
operates as a preference for a placement option that does not
necessitate termination over an option that does.” In re G.D., 2021
UT 19, ¶ 75, 491 P.3d 867; see also In re J.J.W., 2022 UT App 116,
¶ 29 (“Courts must start the best interest analysis from the
legislatively mandated position that wherever possible, family
life should be strengthened and preserved, and if the child can be
equally protected and benefited by an option other than
termination, termination is not strictly necessary.” (quotation
simplified)). Thus, the best-interest inquiry—informed by the
“strictly necessary” requirement—“requires courts to explore
whether other feasible options exist that could address the specific
problems or issues facing the family, short of imposing the
ultimate remedy of terminating the parent’s rights.” In re B.T.B.,
2020 UT 60, ¶ 67 (quotation simplified). In particular, “courts
should consider whether other less-permanent arrangements
might serve the child’s needs just as well” as termination of the
parent’s rights would. Id. (quotation simplified).

¶20 With these considerations in mind, we turn to the issue at
hand: whether the State presented clear and convincing evidence
that termination of Father’s rights was strictly necessary to
promote the Children’s best interest. The juvenile court
determined that the State had cleared this hurdle, and it based its
best-interest determination largely on two subsidiary
conclusions: (1) that the Children needed stability, which the
court believed could be better provided through adoption than

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through a permanent guardianship arrangement, and (2) that the
Children needed to be “protect[ed] against [Father’s] commitment
for increased and continued visitation,” including protection
against Father’s “residual rights,” which protection the court
believed could be better provided through adoption than through
a permanent guardianship arrangement. Father asserts that, on
this record, these reasons constitute an insufficient basis to
terminate his parental rights, and he maintains that the juvenile
court’s determination was therefore against the weight of the
evidence. We agree with Father.

¶21 The court’s first conclusion—that adoption affords a
somewhat higher degree of stability than permanent
guardianship does—is not, at a general level, a sufficient reason
for terminating a parent’s rights. As our supreme court recently
clarified, “categorical concerns” about stability are insufficient to
warrant termination of parental rights so that an adoption may
occur. See In re J.A.L., 2022 UT 12, ¶ 24, 506 P.3d 606. “If these
categorical concerns were enough, termination and adoption
would be strictly necessary across the board” because a
“permanent guardianship by definition does not offer the same
degree of permanency as an adoption” and “there is always some
risk that the permanent guardianship could come to an end, or be
affected by visitation by the parent.” Id.; see also In re L.L.B., 2023
UT App 66, ¶ 23, 532 P.3d 592 (“Categorical concerns about the
lack of permanence of an option other than adoption are not
enough, otherwise termination and adoption would be strictly
necessary across the board.” (quotation simplified)).

¶22 In this vein, we note again that permanent guardianship
arrangements are themselves quite stable. See In re A.H., 2022 UT
App 114, ¶ 55; see also In re J.J.W., 2022 UT App 116, ¶ 31 (noting
that permanent guardianships “have certain hallmarks of
permanency”). “A parent whose child has been placed in a
permanent guardianship arrangement in a child welfare
proceeding has no independent right to petition to change or

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dissolve the guardianship.” In re A.H., 2022 UT App 114, ¶ 55; see
also Utah Code § 78A-6-357(3)(d). “Only the guardian has that
right.” In re A.H., 2022 UT App 114, ¶ 55; see also Utah Code § 78A-
6-357(3)(d). And a parent, in this situation, is entitled only to
“reasonable parent-time” with the child. See Utah Code § 80-1-
102(70)(a)(iv). A guardian who does not think that a parent’s
parent-time request is “reasonable” may resist that request, and
any disputes between the guardian and the parent about the
scope of “reasonable” visitation will be resolved “by the court,”
with the best interest of the child in mind. See id. It is simply not
the case—as the State implies—that a parent in this situation may
demand, and obtain, as much parent-time as the parent desires.
There are, of course, meaningful marginal differences in
permanence and control between adoption and guardianship,
and in some cases, these differences might matter. But after In re
J.A.L., courts focused on the virtues of stability and permanence
may no longer rely on the categorical differences between the two
arrangements, but must instead discuss case-specific reasons why
the “added layer of permanency that adoptions offer” matters in
the case at hand. See In re A.H., 2022 UT App 114, ¶ 53.

¶23 In this case, the juvenile court offered a case-specific reason
for its focus on stability: it was concerned about Father’s “residual
rights,” and specifically about Father’s “commitment for
increased and continued visitation,” and it worried that, after
Father’s release from prison, he might continue to have some
“involvement in [the Children’s] lives.” We acknowledge that, in
some cases, fear of a parent’s residual rights might reasonably
counsel in favor of terminating that parent’s rights so that an
adoption can take place. But this case is not one of those cases.

¶24 For starters, there is no indication that Father’s continuing
relationship with the Children is harmful to them, rather than
merely perhaps inconvenient. See In re L.L.B., 2023 UT App 66,
¶ 24 (reversing a court’s termination of parental rights in part
because “there was no finding . . . that [the] [f]ather’s presence in

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[the child’s] life has affirmatively harmed” the child, and “there
was no finding detailing how [the child’s] life was negatively
affected or disrupted by [the] [f]ather’s attempts to exercise his
parental rights”). 4 Indeed, the juvenile court accurately noted that
3F

“there were no allegations of abuse or neglect regarding [Father]
at the time the [C]hildren were ordered into [DCFS] custody,” and
the Children were found only “dependent”—not abused or
neglected—as to him. And the court found that Father “was
involved in” K.S.’s life “until he was about eight years old” and in
D.S.’s life until she “was three”; that he “love[s] these [C]hildren”;
and that he “expresses genuine love and affection for” them.

¶25 To be sure, Father’s incarceration has placed a great degree
of stress on the parent-child relationship. Because of his
incarceration, Father was unable to care for the Children in their
time of need when Mother abandoned them, and he was—as of
the time of trial—still unable to assume custody of them. Father
has, however, made a credible and determined effort to remain
involved in the Children’s lives despite his incarceration. With
Grandmother’s initial encouragement and assistance, virtual
visits were arranged on a regular basis, and the juvenile court
found that, “[a]t first, the [C]hildren were eager” to participate in
those visits. Over time, however, the Children have lost their
enthusiasm for the visits. But no party pins this loss of enthusiasm
on Father’s behavior regarding those visits; he remains excited
about the visits, and there is no evidence that Father has ever
turned down (or not shown up for) an opportunity for visits, or
that he has ever acted inappropriately during any visit. Indeed,

4. As noted already, see supra note 3, no witness at trial mentioned
the 2014 “supported” incident of abuse, and the protective order
violations were discussed only in passing. Most importantly for
present purposes, the juvenile court did not base any of its
findings or conclusions on either of these incidents; in particular,
it made no finding that either one was of such a nature as to render
Father’s relationship with the Children harmful to them.

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the juvenile court specifically found that Father was “a good
listener” during the visits, and Grandmother testified that Father
was “very good at playing kitchen” with D.S.

¶26 The most anyone can say regarding any downside to these
visits is that the Children find them boring or “uncomfortable”
because they sometimes see other inmates in the background and
because they do “not know what to do” during the visits.
Grandmother has had to add some structure to the visits so that
the Children have some things to talk about with Father; K.S. has
turned to music, and D.S. to “playing kitchen.” On some
occasions, the Children find the visits “difficult” and need
comfort from Grandmother after the visits conclude, but there is
no indication from the record that this difficulty arises from
anything Father does or says during the visits; indeed, it seems
that the difficulty arises simply from the fact that Father is in
prison, a fact that makes communicating and bonding
comparatively difficult and often awkward.

¶27 Given Father’s genuine efforts to maintain a meaningful
relationship with the Children, as well as the absence of a
“harmfulness” component to that relationship, we see no basis for
the juvenile court’s view that the Children need “protections
against [Father’s] commitment for increased and continued
visitation.” As a general matter, we want parents to exhibit a
commitment toward a positive and continued relationship with
their children. See In re A.H., 2022 UT App 114, ¶ 55 (“Family life
should be strengthened and preserved wherever possible, and . . .
it is usually in the best interest and welfare of a child to be raised
under the care and supervision of the child’s natural parents.”
(quotation simplified)); see also In re B.T.B., 2018 UT App 157, ¶ 55,
436 P.3d 206 (“In many cases, children will benefit from having
more people—rather than fewer—in their lives who love them
and care about them . . . .”), aff’d, 2020 UT 60, 472 P.3d 827. All else
being equal, there is inherent value and benefit—not only to the
parent but to the children—in maintaining familial relationships,

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a fact that the juvenile court failed to discuss or account for. See In
re J.J.W., 2022 UT App 116, ¶ 31 (noting the “benefit of preserving
the familial relationships, as our legislature has commanded
courts to do ‘wherever possible’” (quoting Utah Code § 80-4-
104(12))). And a parent’s desire to build and maintain—coupled
with efforts to actually maintain—a meaningful relationship with
a child is a factor that will often weigh in favor of, and not against,
a determination that it is in the child’s best interest to keep the
relationship intact. See In re A.H., 2022 UT App 114, ¶ 55. As we
read this record, Father should be commended—rather than
chided—for maintaining love and affection for, and a desire to
continue a meaningful relationship with, the Children despite his
incarceration. And Father’s wish to have “visitation” with the
Children after his release from prison should likewise have been
viewed positively—or at least neutrally—rather than negatively
in the context of the best-interest inquiry. See id. (“[W]e question
whether—in many cases, including this one—a parent’s desire to
re-engage in their child’s life should be viewed as negatively as
the juvenile court appeared to view it.”).

¶28 All of this is especially true in this case, where the
prospective adoptive parent is Father’s own mother. As
Grandmother herself acknowledged, no matter the outcome of
the case—whether adoption or guardianship—there will very
likely be some sort of ongoing relationship between Father and
the Children. That is, not even Grandmother believes that Father
will (or necessarily should) be completely cut out of the Children’s
lives; instead, she testified that, in the event she is allowed to
adopt the Children, she would consult with “therapist[s]” and
other “people that know more than” she does about appropriate
visitation, and come to a decision about the level of Father’s
involvement that she believes would be best for the Children. In
another similar case, we defined the relevant question as follows:
“[B]efore it may terminate [a parent’s] rights, the [juvenile] court
must adequately explain why it is better for [the Children] to have
[the parent] cut out of [their lives] forever than to have [the

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In re D.S.

parent] remain involved in [their lives], perhaps with limited
parent-time, pursuant to a guardianship arrangement.” In re
J.J.W., 2022 UT App 116, ¶ 36. In cases like this one, where—given
the identity of the prospective adoptive parent—nobody thinks
Father really is going to be completely cut out of the Children’s
lives as a practical matter, it becomes more difficult to establish
that it is best for the Children for Father’s rights to be terminated.

¶29 Finally, we put almost no stock in the juvenile court’s
finding that the Children “expressed a desire to be adopted by”
Grandmother. In this context—termination cases in which the
children are not in the physical custody of the parent in
question—our law allows the court to consider “the child’s
desires regarding the termination,” but only if the court
“determines [that] the child is of sufficient capacity to express the
child’s desires.” Utah Code § 80-4-303(1)(a). The issue of the
capacity of the Children to express their desires was never
discussed at trial, and the juvenile court made no determination
that either one of the Children had sufficient capacity. At the time
of trial, K.S. was eleven years old and D.S. was six years old. While
the governing statute puts no absolute age threshold on when a
child’s desires may be considered, 5 it is far from obvious that
4F

either of the Children—especially the six-year-old—were “of
sufficient capacity” to express a meaningful opinion about the
ultimate question in this case: whether Father’s rights ought to be
terminated to facilitate an adoption or whether Father should
retain certain rights through a guardianship arrangement. In
parental termination cases, a court wishing to take a child’s
desires into account should make a determination regarding the

5. Utah’s adoption statutes, by contrast, establish a specific age
limit regarding when a child’s consent to adoption must be
procured. See Utah Code § 78B-6-120(1)(a) (“[C]onsent to
adoption of a child . . . is required from . . . the adoptee, if the
adoptee is more than 12 years of age, unless the adoptee does not
have the mental capacity to consent.”).

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In re D.S.

child’s capacity to express those desires; absent such a
determination, the requirements of the statute are not met.

¶30 Moreover, even if the Children could be considered
capable of offering meaningful testimony about their desires,
there are evidentiary problems with the juvenile court’s finding
on the subject: the trial testimony did not support any finding on
this issue more specific than that the Children—quite
understandably—wanted to remain in Grandmother’s care.
Caseworker testified that the Children “would like to be adopted
by” Grandmother, but she offered no additional details about her
conversation with the Children. And Grandmother stated that she
had discussed adoption with the Children, but she testified that
D.S. responded, “That’s like the commercials on TV about
adopting a dog.” And she acknowledged that the Children “have
some misconceptions about” what adoption would mean, and
that she had “tried to fix” those misconceptions. But no witness
offered any testimony that could support a finding that either of
the Children actually understood and appreciated the distinction
between adoption and guardianship, and that, based on that
understanding, they preferred adoption. In particular, no witness
offered any testimony that either of the Children understood that,
if an adoption were to occur, Father would lose all of his parental
rights, and—relatedly—no witness offered any testimony that the
Children actually wanted Father to lose all of his parental rights. 6
5F

6. In this vein, we note a general concern with evidence about a
child’s desires regarding termination coming in through the
testimony of a prospective adoptive parent. A much better
practice is for such evidence to come in through either a proffer
from a guardian ad litem—the attorney specifically hired to
represent the interests of the child—or through the testimony of
professional witnesses (e.g., mental health counselors) who
presumably have training in discussing such topics with minors
(continued…)

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In re D.S.

¶31 In the end, the facts of this case simply don’t add up to
strict necessity. Even though we review the juvenile court’s
decision deferentially, we still must reverse when “the evidence
presented at trial [does] not constitute clear and convincing
evidence that termination of [the parent’s] rights . . . would be in
the best interest of those children.” In re A.H., 2022 UT App 114,
¶ 38; see also In re L.L.B., 2023 UT App 66, ¶ 34 (reversing the
district court’s decision where the “court’s conclusion that
termination of [a father’s] parental rights was in [a child’s] best
interest goes against the clear weight of the evidence”). With the
appropriate “clear and convincing” evidentiary standard in mind,
we conclude that the juvenile court’s decision in this case was
against the clear weight of the evidence, and that the reasons upon
which the court’s analysis relied were insufficient to support
termination of Father’s rights.

¶32 We emphasize, however, that our decision is dependent
upon the particular circumstances of this case. Those notable
circumstances include the following: the juvenile court made no
finding that Father’s relationship with the Children was abusive
or harmful; the prospective adoptive parent is Father’s own
mother; and Father will—in any event—likely have a relationship
of some kind with the Children in the future. Moreover, there is
no evidence that Father and Grandmother have the sort of
relationship where he would be likely to exercise undue control
over custody and care decisions in a guardianship arrangement.
See In re J.J.W., 2022 UT App 116, ¶ 31 (noting that guardianship
might be a viable option because, among other things, there was

in a neutral way. By noting the absence of specific foundational
evidence about the Children’s desires, we are in no way faulting
Grandmother for apparently not asking additional follow-up
questions of the Children regarding termination; indeed, this
opinion should not be viewed as encouraging prospective
adoptive parents to engage in conversations with children about
termination of their natural parents’ rights.

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In re D.S.

“no evidence in the record that would lead us to believe that [the
guardians] would be particularly susceptible to undue influence
from [the parent] as concerns seeking a change or dissolution of
the guardianship”); see also In re A.H., 2022 UT App 114, ¶ 55. If
the facts of the case were different, termination of Father’s
parental rights might well have been justified. For instance, if
Father’s relationship with the Children were abusive or
detrimental, the situation would certainly be different. And we
have previously noted that, where the prospective adoptive
placement consists of non-relatives with no pre-existing
relationship with the parent whose rights are at issue, a
guardianship arrangement may be a poor fit. See In re J.P., 2021
UT App 134, ¶ 11, 502 P.3d 1247 (discussing with approval a lower
court’s reasoning that permanent guardianship arrangements
work best in situations where the parent and the guardian know
each other and are “willing to work together to preserve [the]
parent-child relationship” and “where the child has a healthy
relationship with both the guardian and the parent,” and that
such arrangements may not work as well in non-relative, foster-
family placement situations). But on the facts presented at the
termination trial in this case, a permanent guardianship
arrangement serves the Children’s interest at least as well as
adoption does, and therefore termination of Father’s parental
rights is not strictly necessary to promote the Children’s best
interest. See In re A.H., 2022 UT App 114, ¶ 49 (“If the two
placements can each equally protect and benefit the child’s best
interest, then by definition there does not exist clear and
convincing evidence in favor of terminating a parent’s rights.”
(quotation simplified)).

CONCLUSION

¶33 We reverse the juvenile court’s order terminating Father’s
parental rights and remand the case for further proceedings
consistent with this opinion. We note, as we have in similar cases,

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In re D.S.

that “best-interest determinations are to be conducted in present-
tense fashion, as of the date of the trial or hearing convened to
consider the matter.” Id. ¶ 58. Our holding today is that, based on
the evidence presented at trial in August 2022, termination of
Father’s rights was not strictly necessary to promote the
Children’s best interest. But the situation may well have changed
since August 2022. In particular, we are aware that Father was
scheduled to be released from prison in December 2022; the
record submitted to us contains no information about whether
that occurred as scheduled or, if so, what has happened since his
release. If nothing has materially changed since the August 2022
trial, then we expect the court to enter an order establishing a
permanent custody and guardianship arrangement, with the
Children in Grandmother’s care, and to make appropriate rulings,
as necessary, regarding the scope of Father’s reasonable visitation.
But if there is evidence that matters have materially changed since
the trial, the court may need to consider that evidence in some
fashion, see In re Z.C.W., 2021 UT App 98, ¶ 15, 500 P.3d 94, and
re-assess best interest, with its strictly necessary component,
based on the situation at the time of the remand proceedings.

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