In re A.R...

2019 UT App 81
THE UTAH COURT OF APPEALS
S TATE OF U TAH , IN THE INTEREST OF A.R., R.R., AND V.R.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
E.R.,
Appellant,
v.
S TATE OF U TAH ,
Appellee.
Per Curiam Opinion
No. 20190245-CA
Filed May 16, 2019
Third District Juvenile Court, Salt Lake Department
The Honorable Kimberly K. Hornak
No. 1155663
Colleen K. Coebergh, Attorney for Appellant
Sean D. Reyes, Carol L. C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
Before JUDGES M ICHELE M. C HRISTIANSEN F ORSTER , DAVID N.
M ORTENSEN , and R YAN M. HARRIS.
PER CURIAM:
¶1 	E.R. 	(Father) 	appeals 	a 	decision 	awarding 	permanent
custody 	and 	guardianship 	of 	his 	children 	to 	their 	paternal
grandmother. Father asks this court to reverse the grant of
permanent 	custody 	and 	guardianship 	and 	remand 	with 	a
direction 	to 	enter 	an 	order 	of 	temporary 	custody 	and
guardianship 	in 	the 	paternal 	grandmother 	pending 	further
proceedings. We affirm the juvenile court’s decision.

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¶2 	Father 	does 	not 	challenge 	the 	juvenile 	court’s
determination of his unfitness as a parent due to his untreated
mental illness. The sole issue raised on appeal is a claim that the
juvenile court’s award of permanent custody and guardianship
of the children to their paternal grandmother was erroneous
because In re B.T.B., 2018 UT App 157, 436 P.3d 206, required the
court to preserve the possibility of rehabilitation of the parent-
child relationship as well as a future restoration of custody to
Father.
¶3 	The case was before the juvenile court on the Guardian ad
Litem’s (GAL) petition to terminate Father’s parental rights to
allow the children to be adopted. In contrast, the State advocated
for an award of permanent custody and guardianship to the
paternal grandmother with whom the children had resided
throughout the child welfare case. The paternal grandmother
wanted to be the children’s permanent guardian rather than
adopt them. The State had withdrawn its earlier petition to
terminate Father’s parental rights and thereafter requested an
award of permanent custody and guardianship to the paternal
grandmother. 	Father 	joined 	in 	the 	State’s 	recommendation.
During the trial on the termination petition, Father’s counsel
stated, “I would submit that at the very least what this court
could do [is] grant permanent custody and guardianship in the
grandmother 	and 	close 	the 	case.” 	Father’s 	counsel 	also
acknowledged that, under current Utah law, “if my client loses
permanent custody and guardianship in this case, he cannot
[petition to] get his children back.” See Utah Code Ann. § 78A-6-
1103(3)(b) 	(LexisNexis 	2018). 	Father 	would, 	however, 	retain
residual rights that would include rights to visitation. The court
awarded permanent custody and guardianship of the children to
their paternal grandmother.
¶4 	Notwithstanding 	his 	position 	at 	the 	termination 	trial,
Father 	asserts 	that 	he 	has 	preserved 	a 	challenge 	to 	the
permanent custody and guardianship award by filing an appeal.

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20190245-CA 	3 	2019 UT App 81
This is insufficient to preserve the issue for consideration on
appeal. An issue is preserved for appeal when it has been
presented to the juvenile court in such a way that the court has
the opportunity to rule on it. See In re D.B., 2012 UT 65, ¶ 17, 289
P.3d 459. “To provide the court with this opportunity, the issue
must be specifically raised by the party asserting error, in a
timely manner, and must be supported by evidence and relevant
legal authority.” Id. (quotation simplified). Although the record
reflects that the juvenile court and the parties discussed the
requirement 	of 	B.T.B. 	to 	consider 	alternatives 	other 	than
terminating Father’s parental rights, Father did not raise the
argument that he makes in this appeal. In fact, Father’s counsel
specifically 	requested 	an 	award 	of 	permanent 	custody 	and
guardianship 	in 	the 	paternal 	grandmother 	in 	opposing 	the
GAL’s petition to terminate his parental rights.
¶5 	But even assuming that Father did preserve the issue,
Father’s argument is based upon a mistaken interpretation of
B.T.B. Father relies on this court’s statement in B.T.B. that the
juvenile court should “consider whether other less-permanent
arrangements . . . might serve the child’s needs just as well in the
short term, while preserving the possibility for rehabilitation of
the parent-child relationship in the longer term.” In re B.T.B.,
2018 UT App 157, ¶ 55. Father claims that B.T.B. required the
juvenile court to make the award of custody and guardianship
only temporary to allow him the possibility to regain custody in
the future. B.T.B. contains no such requirement; remedies short
of termination, that preserve the parent-child relationship in
some fashion, can take any one of several forms, including the
one 	the 	juvenile 	court 	selected 	in 	this 	case: 	a 	permanent
guardianship arrangement in which the parent retains the right
to visitation, even if the parent no longer has the right to petition
for 	a 	restoration 	of 	custody. 	Indeed, 	as this 	court 	recently
clarified, “B.T.B. simply stands for the proposition that juvenile
courts must consider or explore alternatives to termination of
parental rights before they may find that termination is ‘strictly

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necessary’ to the best interests of the child.” In re C.T., 2018 UT
App 233, ¶ 16, 438 P.3d 100 (quotation simplified). “After this
consideration, 	if 	a 	juvenile 	court 	determines 	that 	no 	such
alternatives are available or articulates supported reasons for
rejecting alternatives that do exist, such findings are entitled to
deference on appeal.” Id. In this case, the juvenile court not only
considered alternatives to termination, the court selected one of
those 	alternatives 	by 	awarding 	permanent 	custody 	and
guardianship to the paternal grandmother. In this case, the
juvenile 	court 	complied 	with 	B.T.B.’s 	requirement 	that 	it
consider alternatives to termination, and the juvenile court’s
well-articulated 	reasons 	supporting 	its 	award 	of 	permanent
custody and guardianship in a relative are entitled to deference.
See id., ¶ 17.
¶6 	Accordingly, we affirm the award of permanent custody
and guardianship of the children to their paternal grandmother.