In re B.R.

1 When the children were initially placed in the State’s
custody, B.R. was ten years old, J.R. was six years old, N.R. was
three years old, and K.M. was eighteen months old. 	They are now
thirteen, nine, six, and four.
2007 UT 82
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, in the interest 	Nos. 20060875
of B.R., J.R., N.R. and K.M., persons 	20060886
under eighteen years of age.
_____________________________________
State of Utah,
Petitioner,
v.
F I L E D
S.M.,
Respondent. 	October 26, 2007
---
First Juvenile District, Logan
The Honorable Jeffrey R. Burbank
No. 154248
Attorneys: 	Mark L. Shurtleff, Att’y Gen., John M. Peterson,
Asst. Att’y Gen., Salt Lake City, Nathan W. Jeppsen,
Tremonton, for petitioner
Angela Fonnesbeck, Logan, for respondent
Martha Pierce, Guardian ad Litem, Salt Lake City,
---
On Certiorari to the Utah Court of Appeals
DURHAM, Chief Justice:
¶1 	S.M., the mother of four children, B.R., J.R., N.R.,
and K.M., 1 had her parental rights terminated by the juvenile
court due to findings of neglect and unfitness resulting from her

2 The juvenile court also terminated the parental rights of
N.R. and K.M.’s father. 	He did not appeal, and thus we focus
only on the circumstances relevant to the mother’s case.
Nos. 20060875, 20060886 	2
struggle with methamphetamine abuse. 2 	The court of appeals
reversed and we granted certiorari to review that decision. 	We
hold that the juvenile court acted within its discretion in
terminating the mother’s parental rights and therefore reverse
the court of appeals.
BACKGROUND
¶2 	In May 1996, S.M. began a pattern of methamphetamine
drug abuse that eventually resulted in the State taking custody
of her four children. 	From 1996 until S.M.’s parental rights
termination trial in August 2005, S.M.’s longest period of
sobriety was three years. 	The Division of Child and Family
Services (the Division) began a lengthy involvement with S.M. and
her children in March 2001, and the children’s current out-of-
home placement was precipitated by S.M. dropping her children off
at a Child and Family Support Center in April 2004. 	After
leaving the children, S.M. telephoned her former caseworker,
stating that she could no longer care for the children and
admitting that she had relapsed and was using methamphetamine.
Once in the State’s custody, the children’s hair was tested, and
the tests determined that all four children had been exposed to
methamphetamine.
¶3 	Following the relinquishment of her children, S.M. was
given twelve months to comply with the Division’s service plan
for reunification. 	The plan required S.M. to complete substance
abuse treatment, participate in mental health counseling, obtain
stable employment and housing, and attend visitation with her
children. 	A permanency hearing was held in April 2005, one year
after the children’s removal. 	The juvenile court concluded after
that hearing that S.M. had failed to substantially comply with
the service plan. 	The court described S.M.’s attempts at
substance abuse treatment as “sporadic and not consistent.” 	S.M.
continued to use methamphetamine throughout the twelve-month
reunification period. 	She began, but did not complete, three
substance abuse treatment programs. 	She attended thirty-four
visits with the children over the twelve-month period, missing
other visits because she was under the influence of
methamphetamine. 	At the permanency hearing, S.M. did not have
stable housing for the children and she was not employed. 	She
had attended only a few mental health counseling sessions.
Looking not only to failed compliance with the service plan, but
also to the emotional and physical well-being of the children and

3 The children’s lives were marked not only by their
mother’s drug abuse, but also by frequent moves.
3 	Nos. 20060875, 20060886
the detrimental effects of the persistent instability thrust upon
these children by their mother’s lifestyle, 3 the juvenile court
terminated reunification services and set the new goal of
adoption for the children. 	The court made its findings in these
matters by clear and convincing evidence.
¶4 	The State subsequently sought to terminate S.M.’s
parental rights. 	A trial was held four months after the
permanency hearing. 	In making its findings on the issue of
whether S.M.’s rights would be terminated, the court adopted many
of its findings from the permanency hearing. 	The court
determined that those findings that were relevant to S.M.’s
ability to provide a safe home for the children at the April
permanency hearing were informative as to her fitness as a parent
at the August trial. 	Also relevant was S.M.’s conduct during the
months between the permanency hearing and the termination trial.
The juvenile court considered the efforts S.M. had made during
that time. 	Those efforts included S.M.’s current involvement
with a Twelve Step Program and the court’s recognition that she
was “in the initial stages of her recovery.” 	The court noted,
however, that this was the fourth program she had participated in
and that she had not completed a program since her children were
placed in the State’s custody. 	The court further recognized
that, since the permanency hearing, S.M. had participated in
mental health counseling and in outpatient treatment focused on
maintaining sobriety and avoiding domestic violence. 	In addition
to the individual treatment, S.M. had also participated in some
group therapy sessions--five targeting domestic violence and one
focused on substance abuse. 	Her therapist acknowledged at trial
that he could not predict S.M.’s future sobriety and that such a
prediction was difficult because she had previous periods of
sobriety after which she returned to chronic drug use. 	Other
significant changes in S.M.’s circumstances following the
permanency hearing included her having secured housing, although
she had been in her own apartment for less than a month at the
time of trial, and having been employed for a two-month period,
in contrast to one day of employment during the entire twelve-
month period of reunification services.
¶5 	Although the court acknowledged the steps S.M. had
taken following the permanency hearing, the court weighed the
mother’s attempts during that short time frame against nine years
of chronic drug use marked by periods of sobriety and relapse.
It concluded that, overall, S.M. had made only “token” and
“minimal” efforts to “adjust her circumstances, conduct, and

4 All four of the children were placed in foster homes with
specialized levels of care due to their needs.
5 One example bears mentioning. 	The court of appeals
directed juvenile courts to consider the risk that an adoptive
placement may be disrupted in considering the best interests of
the child in the context of permanency planning and termination
of parental rights. 	S.M. v. State (State ex rel. B.R.), 2006 UT
App 354, ¶ 71, 144 P.3d 231. 	We do not think this is consistent
with statute or public policy, but in view of our decision to
vacate the appellate court’s opinion, we do not address it
(continued...)
Nos. 20060875, 20060886 	4
conditions to make it in the children’s best interest to return
to her home,” “to prevent neglect of the children, to eliminate
the risk of serious physical, mental, or emotional abuse of the
children, and to avoid being an unfit parent.” 	The court then
concluded that S.M. had substantially neglected the children,
that she was unfit, that she had experienced a failure of
parental adjustment, and that it was not possible to safely
reunite the children with her. 	Further, the juvenile court
determined that “[t]here is a substantial likelihood that mother
will not be capable of exercising proper and effective parental
care in the near future.” 	In fact, the court concluded that,
because of the history of the case and S.M.’s lengthy involvement
with illegal substances, “if the Court were to return the
children to [S.M.], it is likely that within six months to a
year, we would be right back where we are now, with the children
in custody after having been exposed to their [mother’s] use of
methamphetamine.” 	The court terminated S.M.’s parental rights.
In rendering its decision, the court considered not only S.M.’s
past and present conduct, but also the special physical, mental,
and emotional needs of the children 4 and determined that the
decision to terminate parental rights was in their best
interests.
¶6 	S.M. appealed, and the court of appeals reversed the
juvenile court. 	The State and the Guardian ad Litem petitioned
this court for certiorari review, which was granted. 	We now
reverse the court of appeals, vacate its opinion, and remand the
case directly to the juvenile court. 	Our jurisdiction is
appropriate pursuant to Utah Code section 78-2-2(3)(a), (5)
(2002).
ANALYSIS
¶7 	Although the State and the Guardian ad Litem asked us
to review many aspects of the court of appeals’ opinion, 5 we

5 (...continued)
further.
6 In this case, it is not clear when S.M. knew that the
heightened standard was being used, but she did not object to the
trial court’s findings which made it very clear. 	Nor did she
object at the termination trial or before the court of appeals.
5 	Nos. 20060875, 20060886
treat only two: 	(1) whether it was permissible for the juvenile
court to use a heightened evidentiary standard at the permanency
hearing, and (2) whether the court of appeals erred in its review
of the juvenile court’s decision by reweighing the evidence. 	In
order to remedy the parties’ other concerns, we vacate the
opinion of the court of appeals.
I. 	THE JUVENILE COURT’S USE OF THE CLEAR AND CONVINCING
EVIDENTIARY STANDARD AT THE PERMANENCY HEARING WAS PROPER
¶8 	The juvenile court made findings using the heightened
clear and convincing evidentiary standard at S.M.’s permanency
hearing. 	S.M. never objected to the use of the heightened
standard--not in response to the court’s permanency order, not at
the termination trial, and not on appeal to the court of appeals.
The court of appeals, however, concluded that by using the
heightened standard, “the juvenile court took it upon itself to
treat Mother’s permanency hearing as a sort of pre-termination
hearing.” 	S.M. v. State (State ex rel. B.R.), 2006 UT App 354,
¶ 76, 144 P.3d 231. 	The court of appeals concluded that by
finding facts by clear and convincing evidence, the juvenile
court was erroneously addressing termination and use of the
heightened standard “resulted in Mother going into her
termination trial in the face of a multitude of previously
established facts.” 	Id. 	We review the court of appeals’
decision for correctness and disagree with its conclusion. 	Use
of the clear and convincing standard at a permanency hearing is
not improper, and all parties to these proceedings should be
aware that the trial court has the option of making findings by
the heightened standard. 6
¶9 	At a permanency hearing where reunification services
have previously been ordered by the court, the juvenile court is
charged with determining “whether the minor may safely be
returned to the custody of the minor’s parent.” 	Utah Code Ann.
§ 78-3a-312(2)(a) (Supp. 2007). 	The juvenile court may determine
that the child may not be returned to her parent only “[i]f the
court finds, by a preponderance of the evidence, that return of
the minor would create a substantial risk of detriment to the

Nos. 20060875, 20060886 	6
minor’s physical or emotional well-being.” 	Id. § 78-3a-
312(2)(b).
¶10 	Contrary to S.M.’s assertions and the court of appeals’
opinion, the juvenile court did not make conclusions about the
termination of S.M.’s parental rights at the permanency hearing.
It simply made factual findings that were necessary to its
determination of the children’s safety for the reunification
services question by a standard of proof higher than that
required by the statute. 	Those findings, while relevant to the
termination question and relied on later by the juvenile court in
its consideration of the termination issue, did not mandate a
particular outcome at the termination trial. 	The same conduct
that was relevant in determining the children’s safety was also
relevant to S.M.’s termination. 	However, S.M.’s unfitness and
failure of parental adjustment, along with other grounds for
termination of parental rights contained in Utah Code section 78-
3a-407, were not considered by the juvenile court at the
permanency hearing. 	Instead, the failure to substantially comply
with the service plan, including sporadic and inconsistent
attempts at substance abuse treatment, missed visits with the
children due to continued drug use, a lack of stable housing and
employment, and failure to attend mental health treatment, were
factual findings relied upon by the juvenile court in determining
that the children could not be safely returned to their mother’s
custody. 	These questions--whether the children could be safely
returned and whether continued provision of reunification
services was warranted--were the only issues considered at the
April 2005 permanency hearing. 	Contrary to the court of appeals’
assertion, S.M. was not deprived of notice that termination would
be considered at the permanency hearing because, in fact,
termination was never considered. 	The evidence presented at the
permanency hearing regarding S.M.’s conduct and her lack of
substantial compliance with the service plan, however, was
relevant to the separate and subsequent issue of termination, and
there was no detriment to S.M. in the court’s reliance at the
termination hearing on that evidence, which had been already
subjected to the appropriate standard of proof.
¶11 	In this case, the juvenile court’s adoption of factual
findings from the permanency hearing when it considered
termination of S.M.’s parental rights avoided the necessity of
reintroducing all of the evidence previously produced at the
permanency hearing. 	Moreover, and importantly, those findings
were supplemented with new information offered at the termination
trial, including significant evidence about S.M.’s conduct after
the permanency hearing and up to the date of the termination
trial. 	Use of the earlier findings allowed the court to forgo

7 S.M. could, in fact, challenge the conclusions and
findings from the permanency hearing with evidence at the
termination trial if such evidence existed. 	We are at a loss to
understand why a parent would fail to present evidence at the
permanency hearing itself if such evidence existed contradicting
the State’s assertions that he or she did not substantially
comply with the service plan and that the children could not be
safely returned to the parent.
8 The court of appeals reached a contrary conclusion,
determining that the heightened standard prejudiced the parent
and violated her due process rights because the parent was not
afforded notice that the termination issue would be considered at
the permanency hearing. 	State ex rel. B.R., 2006 UT App 354,
¶¶ 75-81. 	However, as noted in the text, termination was not
considered by the juvenile court at the permanency hearing.
Furthermore, S.M. fully participated in both hearings, had notice
of the issues in controversy, and was afforded a full opportunity
to present all relevant evidence.
7 	Nos. 20060875, 20060886
hearing the same evidence twice. 	The facts related to S.M.’s
conduct prior to the permanency hearing could not change between
the two proceedings--history could not be rewritten. 7 	S.M. could
not fail to substantially comply with the service plan up until
April 2005 at one hearing and then demonstrate substantial
compliance for the same time period four months later. 	In fact,
use of a heightened standard for proof of noncompliance is more
protective of S.M.’s rights at the permanency hearing. 8 	We
stress that merely because the same evidence may be relevant at a
permanency hearing and a termination trial, the overlapping
evidence does not amount to a predetermination of the termination
issue. 	As in this case, the juvenile court did not consider
whether termination was appropriate--i.e., S.M.’s unfitness--
until the August termination trial; the permanency hearing merely
focused on the ability to safely return the children to S.M.’s
custody. 	Thus, we conclude that use of the heightened
evidentiary standard of clear and convincing evidence at the
permanency hearing is permissible.
II. 	THE COURT OF APPEALS ERRED IN SUBSTITUTING
ITS JUDGMENT FOR THAT OF THE JUVENILE COURT
IN ITS REVIEW OF THE TERMINATION DECISION
¶12 	We review the court of appeals’ decision for
correctness “with particular attention to whether the court of
appeals reviewed the trial court’s decision under the correct
standard.” 	State v. Worwood, 2007 UT 47, ¶ 11, 164 P.3d 397.
Whether a parent’s rights should be terminated presents a mixed

Nos. 20060875, 20060886 	8
question of law and fact. 	Certainly, the legal standard of
unfitness is the ultimate question, but such decisions rely
heavily on the juvenile court’s assessment and weighing of the
facts in any given case. 	Because of the factually intense nature
of such an inquiry, the juvenile court’s decision should be
afforded a high degree of deference. 	It is in an “advantaged
position with respect to the parties and the witnesses.” 	State
ex rel. M.S. v. Salata, 806 P.2d 1216, 1218 (Utah Ct. App. 1991)
(internal quotation marks omitted). 	Thus, in order to overturn
the juvenile court’s decision “[t]he result must be against the
clear weight of the evidence or leave the appellate court with a
firm and definite conviction that a mistake has been made.”
S.B.D. v. State (State ex rel. Z.D.), 2006 UT 54, ¶¶ 33, 40, 147
P.3d 401 (considering a pure question of fact and stating that
“[a]n appellate court must be capable of discriminating between
discomfort over a trial court’s findings of fact--which it must
tolerate--and those that require a court’s intercession. 	It must
forebear disturbing the ‘close call.’”). 	Therefore, in this
case, the juvenile court’s decision could be overturned 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. 	When a foundation for the court’s
decision exists in the evidence, an appellate court may not
engage in a reweighing of the evidence. 	We conclude, as the
court of appeals did, that the juvenile court considered all of
the evidence. 	We also conclude, contrary to the court of
appeals, that the juvenile court properly exercised its
discretion in weighing the totality of the evidence and
determining that S.M.’s rights should be terminated.
¶13 	In termination cases, the juvenile court must weigh a
parent’s past conduct with her present abilities. 	As the court
of appeals has recognized:
[T]he weight which a juvenile court must give
any present ability evidence is necessarily
dependent on the amount of time during which
the parent displayed an unwillingness or
inability to improve his or her conduct and
on any destructive effect the parent’s past
conduct or the parent’s delay in rectifying
the conduct has had on the parent’s ability
to resume a parent-child relationship with
the child. 	Thus, although the court has a
duty to look forward--i.e., to look at the
parent’s present ability and the likelihood
that the parent will be able to resume
parenting within a reasonable time--the court

9 We disagree with the court of appeals’ conclusion that
many of the juvenile court’s findings were clearly erroneous.
S.M.’s recent improvements do not render the juvenile court’s
findings that she had failed to complete a drug program, failed
to complete counseling, and failed to maintain stable housing and
employment clearly erroneous. 	State ex rel. B.R., 2006 UT App
354, ¶ 106. 	S.M. had only begun drug treatment, begun
participating in mental health counseling, obtained housing for
less than one month, and sustained employment for two months.
These events do not render any of the juvenile court’s findings
clearly erroneous.
9 	Nos. 20060875, 20060886
must consider such evidence in light of the
parent’s past conduct and its debilitating
effect on the parent-child relationship.
That is, if a parent has demonstrated some
improvement in parenting ability but not a
strong likelihood that the parent can provide
a proper home for the child in the very near
future, after a long period of separation, a
history of problems and failure to remedy,
and deterioration of the relationship between
the child and parent, this court should not
overturn a court’s order terminating parental
rights.
S.L. v. State (State ex rel. M.L.), 965 P.2d 551, 561-62 (Utah
Ct. App. 1998) (footnote omitted). 	This standard required the
juvenile court to consider the totality of the evidence regarding
S.M.’s parenting--all of her conduct up to the termination trial.
In this case, as noted above, the juvenile court did weigh all
the appropriate evidence. 	Although it adopted findings regarding
the mother’s past conduct from the permanency hearing, it also
considered the steps she had taken during the months between the
two proceedings. 	The court of appeals recognized that the
juvenile court had considered the mother’s past and present
conduct. 	However, it concluded that the juvenile court’s
interpretation of some facts was clearly erroneous 9 and disagreed
with the emphasis that the juvenile court placed on S.M.’s pre-
permanency and post-permanency hearing conduct.
¶14 	The court of appeals gave more emphasis to S.M.’s
recent efforts than the juvenile court did, identifying S.M.’s
post-permanency hearing efforts as “substantial rehabilitative
efforts.” 	State ex rel. B.R., 2006 UT App 354, ¶¶ 105-06; see
also id. ¶¶ 91, 110. 	In contrast, the juvenile court looked to
all of the evidence, including S.M.’s recent rehabilitation
efforts and her past conduct characterized by periods of sobriety

10 We note that all of S.M.’s improvements occurred after
the permanency hearing. 	Such improvements may be adequate in
some cases--“[a]lthough it may be a difficult feat to accomplish,
the parent may still be able to change circumstances such that
when the petition is tried, the juvenile court will not find by
clear and convincing evidence grounds for terminating parental
rights.” 	State v. J.N. (State ex rel. J.N.), 960 P.2d 403, 408
n.8 (Utah Ct. App. 1998). 	But in this case, the juvenile court
was within its discretion to conclude otherwise.
Nos. 20060875, 20060886 	10
followed by relapse, and determined that based on the weight of
all the evidence, a brief period of improvement did not overcome
her lengthy history of drug abuse and neglect. 10 	In overturning
the juvenile court’s determinations of neglect, unfitness,
failure of parental adjustment, failure to remedy the
circumstances leading to state custody of the children, and that
only token efforts had been made by the mother, the court of
appeals concluded that the juvenile court had given insufficient
weight to the evidence of S.M.’s rehabilitative efforts. 	Id.
¶¶ 107, 110, 117, 123, 124. 	The court of appeals stated that
“Mother’s previous drug use and other prior failings do not
outweigh the evidence of present parenting ability.” 	Id. ¶ 130.
It concluded that S.M. “has as good a chance of remaining drug-
free as any recovering addict” and characterized as speculative
the juvenile court’s determination that, based upon the history
of the case, if the children were returned to S.M., the children
would likely be back in the State’s custody within six months due
to the mother’s drug use. 	Id. ¶ 108. 	In this court’s opinion,
the conclusion that S.M. is likely to recover is equally as
speculative as the conclusion that she is likely to relapse. 	At
trial, S.M.’s therapist testified that he could not predict
future sobriety in light of her past episodes of sobriety
followed by relapse, and his testimony was cited in the juvenile
court’s order in support of the decision to terminate parental
rights. 	This case presents an inappropriate substitution of the
court of appeals’ judgment for that of the juvenile court. 	The
juvenile court’s determination that S.M.’s recent and eleventh-
hour attempts to become a fit parent could not overcome the years
of drug abuse and neglect that her children had experienced was
not against the clear weight of the evidence, and the juvenile
court properly exercised its discretion in making this
determination. 	Simply because an appellate court may have come
to a different result had it been the initial trier of fact does
not permit it to reverse the juvenile court absent a firm and
definite conviction that the court’s decision was against the
clear weight of the evidence. 	This is not such a case.

11 	Nos. 20060875, 20060886
¶15 	As required by State ex rel. M.L., the court of appeals
and the juvenile court also considered the debilitating effect
that S.M.’s conduct had on the parent-child relationship. 	965
P.2d at 561-62. 	The court of appeals, citing to continued love
between S.M. and her children and a continued relationship,
concluded that only “minimal deterioration in the parent-child
relationship” had occurred. 	State ex rel. B.R., 2006 UT App 354,
¶¶ 112-13 & n.29. 	However, despite continued love, which will
almost always exist when a child has formed a bond with a parent,
“‘[f]rom the child’s perspective, at least, the earlier period of
stagnation is not necessarily wiped out by the later improvement.
The harm may have been done.’” 	State ex rel. M.L., 965 P.2d at
562 (quoting In re B.M., 682 A.2d 477, 480 (Vt. 1996)). 	In this
case, the mother chronically used drugs from the time her oldest
child was two years old and during the entire period that she had
custody of her youngest three children. 	Unfitness and neglect
occur when a parent “habitual[ly] or excessive[ly] use[s] . . .
controlled substances, or dangerous drugs that render the parent
unable to care for the child.” 	Utah Code Ann. § 78-3a-408(2)(c)
(Supp. 2007). 	Harm has clearly been done to the parent-child
relationship as a result of S.M.’s drug abuse, her neglect of the
children, and the children’s placement in state custody as a
result of their mother’s conduct. 	The juvenile court determined
that such harm was not overcome by S.M.’s post-permanency hearing
attempts at rehabilitation and compliance with her service plan.
The juvenile court did not err in concluding that nine years of
chronic drug use, including twelve months of continued drug use
during the reunification period, was not outweighed by S.M.’s
recent efforts.
CONCLUSION
¶16 	In conclusion, it is permissible for a juvenile court
to make findings using a clear and convincing evidentiary
standard at a permanency hearing. 	Additionally, the court of
appeals erred in substituting its judgment for that of the
juvenile court in its review of the termination decision. 	The
juvenile court acted within its discretion in terminating S.M.’s
parental rights. 	We vacate the opinion of the court of appeals
and reinstate the findings of the juvenile court. 	In the
interest of expediting the long delayed permanent placement of
these children, we remand the case directly to the juvenile
court.
---

Nos. 20060875, 20060886 	12
¶17 	Associate Chief Justice Wilkins, Justice Durrant,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham’s opinion.