In re J.M...

2024 UT App 147

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF J.M., S.M., L.M., AND J.A.M.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.

N.M.,
Appellant,
v.
STATE OF UTAH,
Appellee.

Opinion
No. 20230310-CA
Filed October 18, 2024

Eighth District Juvenile Court, Vernal Department
The Honorable Ryan B. Evershed
No. 1116736

Jason B. Richards, Alexandra Mareschal, and
Kirstin Norman, Attorneys for Appellant
Sean D. Reyes, Sandi F. Clemens, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY concurred.

ORME, Judge:

¶1 N.M. (Mother) appeals the juvenile court’s termination of
her parental rights, arguing her counsel (Counsel) provided
ineffective assistance by using an improper procedure to
withdraw her response to the custody petition. She also
challenges the court’s “strictly necessary” determination. Because
Mother’s ineffective assistance claim is untimely, we do not reach
In re J.M.

its merits. And we otherwise uphold the juvenile court’s
termination of her parental rights.

BACKGROUND

¶2 In September 2021, police found J.M., S.M., and L.M. 1
walking along a busy highway with their father (Father). Father
was arrested after he fled the scene, leaving the three children
behind. The children were inadequately dressed for their walk—
at least one did not have shoes and another was not wearing a
shirt. Their hygiene had also been ignored. They were placed in
emergency custody with the Division of Child and Family
Services (DCFS).

¶3 A fourth child, J.A.M., was at home with Mother. Inside the
family apartment, DCFS investigators found “lots of trash” and
“old food” on the kitchen floors and counters. Smoke alarms had
been removed, and Mother told investigators the hot water heater
had been broken for about three weeks. The front door was
broken because, according to Mother, a neighbor had kicked it in.
Investigators did not observe any usable beds or bedding in what
would have been the children’s bedrooms. Mother told them the
children slept in the primary bedroom with her and Father.
Mother attributed the disarray to the family trying to move. Given
the state of the home, DCFS decided to remove all four children
(the Children).

¶4 This was not the family’s first encounter with DCFS. As the
juvenile court later recognized, the three oldest children—J.M.,
S.M., and L.M.—had been removed from Mother’s and Father’s
custody multiple times and, as the juvenile court later stated, they
had “been under DCFS and court supervision for most of their

1. “The identity of minors should be protected by use of
descriptive terms, initials, or pseudonyms.” See Utah R. App. P.
24(d).

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lives.” In June 2015, a protective supervision services (PSS) case
was opened against Mother due to fetal exposure of J.M. to illegal
substances. In that case, the juvenile court found that Mother and
Father had been using drugs, had no stable housing, and had
incidents of domestic violence. In March 2016, the court made
additional findings regarding environmental neglect and child
endangerment due to the parents’ illegal drug use, resulting in
J.M. and later S.M., after his birth, being removed from the home.
Custody was eventually returned to Mother subject to protective
supervision, and the case was closed in June 2017. But in August
2017, DCFS again determined Mother had exposed her unborn
child, this time L.M., to illegal substances, so a third PSS case was
opened and remained open until August 2018. In August 2019, a
fourth PSS case was opened due to the parents’ physical neglect,
domestic-violence-related child abuse, and child endangerment.
The three oldest children were again removed, but after extensive
in-home services, they were returned to Mother, and the case was
closed in January 2021.

¶5 The day after the Children were removed in the case now
before us, in September 2021, the State filed a petition asking the
juvenile court to find the Children “abused, neglected, and/or
dependent” and to award custody to DCFS or to an appropriate
family member. At the shelter hearing, the court ordered the
Children to remain in DCFS custody, appointed a guardian ad
litem to represent the Children, and appointed Counsel to
represent Mother.

¶6 In December 2021, Mother and Father attended mediation
in which they agreed to respond to the allegations of the custody
petition under rule 34(e) of the Utah Rules of Juvenile Procedure
“by declining to admit or deny the allegations,” meaning the
allegations would “be deemed true,” provided the State amended

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those allegations. 2 Thereafter, the State filed an amended custody
petition. At a hearing the next day, the court conducted a colloquy
with both Mother and Father, inquiring into whether they
understood “that a Rule 34(e) plea is like a no contest plea” under
which they would be giving up certain rights. The court
endeavored to ensure that they did not feel pressured to respond
in this way and that they were not under the influence of drugs or
alcohol. The court then accepted the allegations of the petition as
true, adjudicated the Children abused and neglected, and
canceled the scheduled adjudication trial.

¶7 On January 4, 2022, the court issued its written
adjudication order (the Adjudication Order) in which it found
that Mother and Father “understood the proceedings and the
effect of their” no-contest responses and that they chose this
procedural option “willingly and knowingly.” The court found
that the “allegations and facts contained in the State’s Petition are
true and correct” and, based on this, concluded the Children were

2. Throughout their briefing, the parties have referred to Mother’s
response as a rule 34(e) “answer” or “plea.” But these are
misnomers. Rule 34(e) offers two distinct avenues for responding
to a petition in a child welfare case—either the respondent “may
answer by admitting or denying the specific allegations of the
petition,” or the respondent may “declin[e] to admit or deny the
allegations.” Utah R. Juv. P. 34(e). Mother took the latter tack. She
did not answer the petition, instead choosing to neither admit nor
deny the allegations in the State’s custody petition. This was not
an answer contemplated by the first part of rule 34(e) nor was it a
criminal plea. To avoid perpetuating this misuse of terminology
and to better capture the unique nature of the latter part of the
rule, we refer to Mother’s rule 34(e) response as a “no-contest
response,” per our recent decision, In re B.D., 2024 UT App 104,
¶ 12.

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abused and neglected. Accordingly, the court awarded
guardianship of the Children to DCFS.

¶8 That same day, the court held a disposition hearing in
which DCFS recommended against further reunification services
for the family. Upon learning of this recommendation, Mother
filed a “Motion to Withdraw Rule 34(e) No Contest Plea” in which
she requested leave to withdraw her no-contest response,
asserting it was “not made knowingly or voluntarily.”3 She
argued, among other things, that she had expected DCFS to make
reasonable reunification efforts, as it had done multiple times in
the past, and she argued she “would have never pled no contest
to the Petition if she knew DCFS were recommending termination
of reunification, relatively immediately after adjudication.” And
she further contended that under rule 25A(b)(1) of the Utah Rules
of Juvenile Procedure, “pleas of no contest may be withdrawn
with leave of the Court upon showing the plea was not knowingly
or voluntarily made.”

¶9 On February 2, 2022, oral argument was held on Mother’s
motion. The court denied what it called Mother’s motion “to set
aside” her no-contest response because it found the response had
been “made knowingly and voluntarily.” The court found that
Mother had been advised by Counsel, had attended mediation,
had had “[a] lot of time to think,” had successfully requested that
the petition be amended, and had been informed of her rights by
the court. Further, the court found that Mother would likely have
responded to the amended petition as she did even if she knew
that reunification services would not be offered, because trial on
the merits of the amended petition could have hurt her case if the
State brought up additional information and everything was “out
in the open.”

3. Father filed a similar motion, but because he does not join in
this appeal, we do not detail it here.

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¶10 In the meantime, DCFS began investigating potential
kinship placements for the Children with reference to a list
submitted by Mother, starting with the Children’s paternal aunt.
Because the aunt lived in South Carolina, DCFS initiated a request
under the Interstate Compact on the Placement of Children
(ICPC), but the request was denied after the aunt failed to respond
and provide necessary information. DCFS then initiated an ICPC
request for the Children’s paternal grandmother (Grandmother),
who also lived in South Carolina. But due to several
administrative errors, the request was delayed for seven months.
DCFS also initiated an ICPC request for a paternal uncle in
Oregon, who could not take any of the Children, and for another
paternal uncle in Virginia, who was eventually approved to take
two of the Children. The two oldest children, J.M. and S.M., were
subsequently placed with this uncle in Virginia. Because another
suitable kinship placement could not be found for L.M. and
J.A.M., they remained in foster care.

¶11 In April 2022, the State filed a petition for termination of
Mother’s and Father’s parental rights. At the four-day termination
trial, various witnesses testified about the events outlined above.
In particular, Grandmother testified about her desire to be a
kinship placement for the Children. She stated she had not been
contacted in South Carolina as a result of the ICPC request. She
testified that while she had not asked for visitation with the
Children since their removal, she had contacted DCFS about
becoming a placement. She expressed frustration with DCFS,
believing it was “keeping a lot of secrets” and being “dishonest.”
She admitted she did not trust DCFS and that, barring a court
order to the contrary, she felt it was safe to return the Children to
their parents. She also admitted she had arranged to pick up a fifth
child born to the parents in Colorado during the pendency of this

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case and take the infant to South Carolina until “this case closed.” 4
Several other witnesses testified, including the Children’s then-
current placements as well as Mother and Father.

¶12 The court later issued its termination order (the
Termination Order), in which it found that Mother and Father had
neglected the Children. The court went on to find that termination
was in the Children’s best interest. As part of its best-interest
inquiry, the court found it was strictly necessary to terminate
Mother’s and Father’s parental rights. After noting the efforts
made to place the Children in a kinship placement with their
paternal aunt, two paternal uncles, and Grandmother, the court
stated that there was “simply no family placement available in
this case that could accommodate all four children.” As concerns
Grandmother, the court indicated that because her house had
only one extra bedroom, she could only possibly be approved as
a placement for two of the Children. The court also acknowledged
the various administrative errors that had waylaid
Grandmother’s ICPC approval, but it ultimately found that
Grandmother was not an appropriate placement for the
Children. 5

4. The evidence suggested that Father had driven Mother hours
away to a hospital in Colorado that did not have a maternity ward
and that while being transported to another hospital that did, she
delivered the new baby in an ambulance. Grandmother was then
supposed to travel to Colorado and bring the child back to South
Carolina with her, in an apparent effort to avoid DCFS
interference.

5. During the trial, the court learned that Grandmother’s ICPC
request was still pending. The court “strongly considered”
staying the trial to await the ICPC decision, but it ultimately
decided against doing so because (1) no party requested it and
(2) “an approved ICPC would not change the Court’s mind as to
whether [Grandmother] would be an appropriate placement.”

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¶13 In its extensive findings regarding Grandmother, the court
found she “never requested to have contact or visitation with the
[C]hildren” after their removal and she “never contacted DCFS or
the Court to ask for updates” about the delayed ICPC request. The
court found that “Grandmother believes whatever the parents tell
her regarding the conditions of the home, problems with the
placements, and case issues” and that she “seemed unaware . . .
of the significance of the issues faced by the family and the neglect
occurring in the family home.” The court also noted
Grandmother’s testimony that she regretted “initially reporting
the parents to DCFS years ago” and that she “wouldn’t do that
now.” Further, the court found that Grandmother’s relationship
with her son in Virginia—J.M. and S.M.’s placement—had
reached the point of no contact because Grandmother “bought
into the lies and paranoia” sown by Mother and Father regarding
DCFS. The court noted that Grandmother testified at trial that “if
the [C]hildren were placed with her, she would return” them to
Mother and Father “when she thought it was appropriate.” And
Grandmother admitted to conspiring to take the fifth child to
South Carolina to avoid DCFS involvement. See supra note 4.
Ultimately, the court concluded it could not “trust [Grandmother]
to ensure the safety and protection of the [C]hildren.”

¶14 The court also considered alternatives to termination. But
it found that the placement of J.M. and S.M. in Virginia “should
not be disturbed” as they “are thriving with the family.” The court
found that while J.M. and S.M.’s kinship placement was “more
amenable to a non-termination option,” adoption was strictly
necessary, as evidenced by the fact that the relationship between
the parents and the paternal uncle’s family had “deteriorated to a
point where they are not having contact.” The court found J.M.
and S.M. were “integrated into the family,” called their aunt and
uncle “mom and dad,” viewed their cousins as siblings, and
considered them “their primary family.”

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¶15 As for the younger children, L.M. and J.A.M., the court
found that though they were not placed with kin, they were also
thriving. The court found permanent guardianship with their
foster family was not a suitable alternative to termination because
“after many years of assistance,” Mother and Father “cannot
adjust their circumstances to properly care for” them. The court
noted that Mother and Father had “a lot of animosity” for the
foster parents and had threatened them with legal action, saying
they would “get what is coming to them.” The court also found
that Mother and Father instructed L.M. and J.A.M. to expose the
foster parents’ “lies.”

¶16 Further, the court found that Mother and Father had
complained multiple times about the Children calling their
placements “mom and dad” and had “put their needs above the
children’s and consistently allowed this concern to get in the way
of having productive visits with” them. Accordingly, the court
found that adoption of all the Children was in their best interest
and that termination was strictly necessary to facilitate it. The
court ordered both Mother’s and Father’s parental rights
terminated.

¶17 Mother appeals.

ISSUES AND STANDARDS OF REVIEW

¶18 On appeal, Mother argues Counsel provided ineffective
assistance by using an improper procedure to seek withdrawal of
her no-contest response to the State’s custody petition. “In child
welfare cases, we employ the Strickland test to determine a claim
for ineffective assistance of counsel.” In re K.J., 2024 UT App 47,
¶ 45, 548 P.3d 886 (quotation simplified), cert. denied, 554 P.3d 924
(Utah 2024). But here, we must first determine the threshold issue
of whether we have jurisdiction to reach the merits of this
argument. “Questions about appellate jurisdiction are questions
of law that, by definition, arise for the first time in the appellate

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setting.” In re R.P., 2024 UT App 106, ¶ 7, 554 P.3d 1183 (quotation
simplified).

¶19 Mother also argues it was not strictly necessary to
terminate her parental rights. Specifically, she challenges the
juvenile court’s determination that DCFS made adequate efforts
to locate a kinship placement with Grandmother, and she argues
the court failed to consider permanent guardianship with
Grandmother or the Children’s current placements as an
alternative to outright termination of her parental rights.
“Whether a parent’s rights should be terminated presents a mixed
question of law and fact” and “we will thus overturn a juvenile
court’s termination decision only if it is against the clear weight of
the evidence or leaves us with a firm and definite conviction that
a mistake has been made.” In re B.W., 2022 UT App 131, ¶ 45, 521
P.3d 896 (quotation simplified), cert. denied, 525 P.3d 1269 (Utah
2023). “Put differently, we will overturn a termination decision
only if the juvenile court 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.” Id. (quotation simplified).

ANALYSIS

I. Mother’s No-Contest Response

¶20 Counsel argued that Mother’s no-contest response,
pursuant to which the allegations of the amended custody
petition were deemed true, should have been withdrawn under
rule 25A(b)(1) of the Utah Rules of Juvenile Procedure because it
“was not knowingly or voluntarily made.” On appeal, Mother
argues this was the wrong procedure to withdraw her response

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and, thus, Counsel provided ineffective assistance. But we lack
jurisdiction to address the merits of this claim. 6

¶21 “This court has original jurisdiction over appeals from the
juvenile court,” In re R.P., 2024 UT App 106, ¶ 8, 554 P.3d 1183
(citing Utah Code § 78A-4-103(3)(c)), “and our rules of appellate
procedure provide that a party may appeal ‘a final order or
judgment,’” id. (quoting Utah R. App. P. 3(a)(1)). “[I]n appeals
from juvenile court, finality is viewed somewhat more flexibly
than in the district court context.” In re J.E., 2023 UT App 3, ¶ 19,
524 P.3d 1009. “The determining factor in deciding which orders
in a child welfare case are final and appealable as a matter of right
is whether the order effects a change in the permanent status of
the child.” In re R.P., 2024 UT App 106, ¶ 11 (quotation simplified).

¶22 “Utah’s appellate courts have determined that in child
welfare proceedings, unlike traditional civil cases, appeals may be
heard from more than one final judgment.” Id. ¶ 9 (quotation
simplified). “This difference does not stem from a different

6. We were informed by the parties that no-contest responses
under rule 34(e) have been referred to in juvenile court as
“no-contest pleas” and utilized in an informal procedure that
borrows from criminal law and from rules 24 through 29 of the
Utah Rules of Juvenile Procedure, which govern delinquency. We
note that because a no-contest response entered under rule 34(e)
applies to “non-delinquency cases,” see Utah R. Juv. P. 34(a), it
should be governed by the Utah Rules of Civil Procedure—not
criminal law or delinquency procedure, see id. R. 2(a) (“When the
proceeding involves neglect, abuse, dependency, termination of
parental rights, adoption, status offenses or truancy, the Utah
Rules of Civil Procedure shall apply unless inconsistent with these
rules.”). The Advisory Committee on the Utah Rules of Juvenile
Procedure may wish to adopt a rule governing the process by
which no-contest responses entered pursuant to rule 34(e) may be
withdrawn.

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application of or exception to the final judgment rule, but rather
from the unique nature of juvenile court jurisdiction, which often
continues after a final judgment is rendered.” Id. (quotation
simplified). But “where a final ruling or order of the trial court
goes unchallenged by appeal, such becomes the law of the case,
and is not thereafter subject to later challenge.” In re H.H., 2024
UT App 25, ¶ 87, 546 P.3d 39 (quotation simplified), cert. denied,
550 P.3d 997 (Utah 2024). “A notice of appeal in a child welfare
case must be filed within fifteen days after the entry of the
operative court order.” In re R.P., 2024 UT App 106, ¶ 8. See Utah
R. App. P. 52(a); Utah R. Juv. P. 52(a)(1). And “[i]f an appeal is not
timely filed, this court lacks jurisdiction over the issues raised.” In
re R.P., 2024 UT App 106, ¶ 8.

¶23 Here, the Adjudication Order was a final, appealable order.
See In re H.H., 2024 UT App 25, ¶ 87 (holding that “an adjudication
order is final for purposes of appeal”) (quotation simplified). The
juvenile court properly considered Mother’s post-adjudication
motion to withdraw her no-contest response as a post-judgment
motion to set aside the Adjudication Order. The court’s denial of
this motion, which was in essence a motion for relief from
judgment pursuant to rule 60(b) of the Utah Rules of Civil
Procedure, was itself a final, appealable order. See Amica Mutual
Ins. Co. v. Schettler, 768 P.2d 950, 970 (Utah Ct. App. 1989) (“[A]n
order denying relief under Rule 60(b) is a final appealable
order.”). Thus, the proper time to raise Counsel’s alleged
ineffective assistance would have been in an appeal from that
ruling, made 15 days after the February 2, 2022 hearing in which
the court denied Mother’s motion. See Utah R. Juv. P. 52(a)(1);
Utah R. App. P. 52(a). But Mother did not do so. Instead, she
raised the issue in her notice of appeal from the Termination
Order entered over a year later, in April 2023—well outside the
15-day window.

¶24 Mother’s chance to raise this ineffective assistance claim
came and went when she appealed neither the Adjudication

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Order nor the denial of her post-judgment motion challenging the
Adjudication Order. We therefore lack jurisdiction to address the
claim here. See In re R.P., 2024 UT App 106, ¶ 8 (“If an appeal is
not timely filed, this court lacks jurisdiction over the issues
raised.”).

II. Termination of Mother’s Parental Rights

¶25 “A court may terminate parental rights only after making
two necessary findings”—“first, the court must find, by clear and
convincing evidence, that at least one statutory ground for
termination exists,” and “second, the court must find that
termination of the parent’s rights is in the best interest of the
child.” In re J.P., 2021 UT App 134, ¶ 13, 502 P.3d 1247 (quotation
simplified). Mother’s challenge to the termination of her parental
rights centers on the second part of this inquiry.

¶26 “Because any number of factors can have bearing on the
child, the best-interest inquiry is a broad-ranging, holistic
examination of all the relevant circumstances that might affect a
child’s situation.” Id. ¶ 14 (quotation simplified). And termination
must be “strictly necessary from the child’s point of view.” Id. ¶ 15
(quotation simplified). Our Supreme Court has instructed that the
strictly necessary inquiry is part of the best-interest inquiry. Id.
(citing In re B.T.B., 2020 UT 60, ¶¶ 60, 76, 472 P.3d 827).
“Termination is strictly necessary only when, after exploring
possible placements for the child, the juvenile court concludes
that no 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.” Id. (quotation
simplified). “Indeed, 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.” In re J.J.W.,
2022 UT App 116, ¶ 29, 520 P.3d 38 (quotation simplified).

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¶27 Mother argues it was not strictly necessary to terminate her
parental rights. She asserts that the court did not give due weight
to DCFS’s inadequate efforts to approve a kinship placement that
could accommodate all four Children—namely, placing them
with Grandmother. She also argues that the court failed to
consider permanent guardianship with Grandmother or the
Children’s current placements as alternatives to termination. We
address these arguments in turn.

A. Kinship Placement

¶28 Under Utah Code section 80-4-104(12)(b)(ii), “[i]n
determining whether termination is in the best interest of the
child, and in finding, based on the totality of the circumstances,
that termination of parental rights, from the child’s point of view,
is strictly necessary to promote the child’s best interest, the
juvenile court shall consider” whether “the efforts to place the
child with a relative who has, or is willing to come forward to care
for the child, were given due weight.” Mother argues the court
did not adhere to this statutory directive. In particular, she argues
the court failed to consider DCFS’s “botched” efforts to have
Grandmother approved as a kinship placement. We disagree.

¶29 The juvenile court has “an obligation to consider proposed
kinship placements, and if a court rejects a kinship placement, it
must give reasons on the record for doing so.” In re B.W., 2022 UT
App 131, ¶ 67, 521 P.3d 896, cert. denied, 525 P.3d 1269 (Utah 2023).
“[A]lthough there’s a statutory preference for kinship placements,
and although courts must appropriately explore kinship
placements as a result, courts that explore such options may then
conclude, on the facts before them, that a different option is in fact
in a child’s best interest.” Id. ¶ 68. “[I]f a court has complied with
its statutory obligations, its resultant best interest determination
is entitled to deference.” Id. ¶ 69.

¶30 In the Termination Order, the court detailed the efforts
DCFS made to submit an ICPC request for Grandmother, as well

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as the many administrative errors that had occurred during the
process. But regrettable though these missteps were, the court
also made two pages of findings rejecting Grandmother as an
appropriate kinship placement. The court noted Grandmother’s
lack of contact with the Children, DCFS, or the court, even after
the ICPC request was delayed. And the court found that even if
Grandmother’s ICPC request had been approved, she only had
one extra bedroom in her home and thus could only have been
approved for two of the Children—not all four. Of particular
concern, the court found that Grandmother “believes whatever
the parents tell her” and that she had “bought into” Mother’s and
Father’s “lies and paranoia” about DCFS to the detriment of her
relationship with her son in Virginia and her relationship with
J.M. and S.M. As summarized by the court, Grandmother testified
at trial that “if the [C]hildren were placed with her, she would
return” them to Mother and Father “when she thought it was
appropriate.” She also conspired to conceal the birth of the fifth
child born during the pendency of this case to avoid DCFS
involvement. In sum, the court concluded it could not “trust
[Grandmother] to ensure the safety and protection of the
[C]hildren.”

¶31 After learning that Grandmother’s ICPC request was still
pending during the termination trial, the court “strongly
considered” whether to stay the trial pending the ICPC decision.
But the court ultimately decided against issuing a stay because
(1) no party requested it and (2) in light of the above findings, “an
approved ICPC would not change the Court’s mind as to whether
[Grandmother] would be an appropriate placement.” The court
acknowledged the statutory directive that “family members
coming forward to provide placement for the [C]hildren” must
“be given due weight.” And the court did give due weight to a
potential kinship placement with Grandmother—though it
ultimately found the placement to be inappropriate. Thus, we
cannot say that the court “failed to consider all of the facts or that
it considered all of the facts and its decision was nonetheless

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against the clear weight of the evidence.” In re B.W., 2022 UT App
131, ¶ 82, 521 P.3d 896 (quotation simplified).

B. Permanent Guardianship

¶32 Mother also argues the court failed to consider permanent
guardianship with Grandmother or with the Children’s current
placements as alternatives to termination of her parental rights.
We disagree.

¶33 In the Termination Order, the court thoroughly considered
kinship placement with Grandmother, concluding it was not
appropriate and that Grandmother could not be trusted “to
ensure the safety and protection of the [C]hildren.” Because
Grandmother had “bought into the lies and paranoia of the
parents regarding DCFS”; had expressed regret over previously
reporting the parents to DCFS; and had “testified that, if the
[C]hildren were placed with her, she would return [them] to the
parents when she thought it was appropriate,” the court
determined she was not an appropriate kinship placement and,
thus, certainly not a suitable permanent guardian for the
Children.

¶34 The court also considered whether permanent
guardianship with the Children’s then-current placements—J.M.
and S.M. with family in Virginia and L.M. and J.A.M. with a foster
family—could be an alternative to termination. With regard to
J.M. and S.M., the court found that while their family placement
was “more amenable to a non-termination option,” from the point
of view of the children, adoption was strictly necessary as the
relationship between their paternal uncle’s family and Mother
and Father had “deteriorated to a point where they are not having
contact.” The court found J.M. and S.M. were “integrated into the
family,” called their foster parents “mom and dad,” viewed their
cousins as siblings, and considered them “their primary family.”

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¶35 With regard to L.M. and J.A.M., the court found permanent
guardianship was not feasible as Mother and Father, “after many
years of assistance, cannot adjust their circumstances to properly
care for” them. The court noted that Mother and Father had “a lot
of animosity” toward the foster parents, had threatened them
with legal action, and had made statements that they would “get
what is coming to them.” The court found that Mother and Father
had told L.M. and J.A.M. to expose the foster parents’ “lies.” The
court further found that Mother and Father had complained
multiple times about the Children calling their placements “mom
and dad” and had “put their needs above the children’s and
consistently allowed this concern to get in the way of having
productive visits with their children.”

¶36 After considering permanent guardianship with both
Grandmother and the Children’s current placements, the court
concluded that “no option satisfies the Children’s need for safety,
stability, and permanency more than adoption.” Thus, we cannot
say the court failed to consider permanent guardianship as an
alternative to termination.

CONCLUSION

Because we lack jurisdiction over Mother’s untimely ineffective
assistance claim, we cannot address it. And we decline to overturn
the juvenile court’s determination that it was strictly necessary to
terminate Mother’s parental rights. Accordingly, we affirm.

20230310-CA 17 2024 UT App 147