Opinion
20220001-CA
12-22-2022
IN THE INTEREST OF H.C., A PERSON UNDER EIGHTEEN YEARS OF AGE. v. R.C., Appellee. A.B., Appellant,
Emily Adams and Sara Pfrommer, Attorneys for Appellant Scott N. Weight, Attorney for Appellee Martha Pierce, Guardian ad Litem
Fourth District Juvenile Court, Provo Department The Honorable Suchada P. Bazzelle No. 1188649
Emily Adams and Sara Pfrommer, Attorneys for Appellant
Scott N. Weight, Attorney for Appellee
Martha Pierce, Guardian ad Litem
Judge Gregory K. Orme authored this Opinion, in which Judges Michele M. Christiansen Forster and Ryan D. Tenney concurred.
OPINION
ORME, JUDGE
¶1 A.B. (Mother) appeals the juvenile court's termination of reunification services and grant of permanent custody and guardianship of her minor son, H.C. (Child), to his father, R.C. (Father). We affirm.
BACKGROUND
¶2 Child was born in 2013. Mother and Father later filed for divorce and, in 2016, entered a stipulation regarding parent-time. The stipulation provided that Child would "primarily reside with Mother" in Utah and that he would have parent-time with Father in Florida for four weeks during the summer and would spend alternating Christmas holidays with Father.
¶3 In June 2020, Child visited Father in Florida for Father's four-week parent-time. There, Child told Father that "he was getting hit with a belt and a hanger" at home and that Mother's husband (Stepfather) punched him in the stomach. Father reported the allegation to Utah's Division of Child and Family Services (DCFS). DCFS's further investigation revealed that Stepfather would scream at Child, strike him with a belt, and punch and "whoop" him. The investigation also revealed that Mother spanked Child with her hand, a hanger, or a spatula, often leaving behind red marks where Child was struck.
¶4 Toward the end of June, the State filed a Verified Petition for Protective Supervision, in which it described what DCFS's investigation revealed. Following a hearing in early July, the juvenile court placed Child under temporary protective supervision services and ordered that Child remain in Florida with Father.
The petition sought protective services for Child and for three other children who resided with Mother and Stepfather. Because the other three children are not the subject of this appeal, we limit our recounting of the facts to Child's case.
¶5 In August 2020, Father filed for temporary custody of Child. In a subsequent hearing, the court declined to rule on the motion until Mother and Stepfather's case was adjudicated. But after Father asserted that the purpose of the motion was to ensure that he could enroll Child in school that year without Mother's interference, the court granted temporary custody of Child to Father "until the allegations of abuse of [Child] are conclusively determined by the Court." It reiterated that Father's "motion for custody will not be considered at this time, but may be considered after adjudication."
¶6 The following month, DCFS submitted a child and family plan to the court, which required, among other things, that Mother and Stepfather attend parenting courses, complete psychological evaluations, and complete the recommendations resulting from the psychological evaluations. Mother and Father indicated that they agreed with the plan. The court set the primary permanency goal for Child as "reunification with his Mother" and set a concurrent goal of "permanent custody and guardianship with a relative," which the court stated Father "of course . . . would qualify as." The court also adjudicated Child dependent as to Father.
The court is correct that Father is related to Child by reason of being his natural parent. See Utah Code Ann. § 80-3-302(1)(a)(iii) (LexisNexis Supp. 2022) (defining "natural parent" as "a biological father of the child who . . . was married to the child's biological mother at the time the child was conceived"). But "natural parent" is not found in the definition of "relative" under Utah Code section 80-3-102(6). See id. § 80-3-102(6).
"'Dependent child' or 'dependency' means a child who is without proper care through no fault of the child's parent, guardian, or custodian." See Utah Code Ann. § 80-1-102(21) (LexisNexis Supp. 2022) (emphasis added).
¶7 In December 2020, the State filed an Amended Verified Petition for Protective Supervision, in which it again alleged that Stepfather spanked and punched Child in the stomach, screamed at Child, and would "whoop" Child. The petition also again alleged that Mother would spank Child with her hand or a spatula, leaving behind red marks. The petition asserted that Mother and Stepfather denied spanking Child and that Mother believed that Father "has put ideas into [Child's] head."
¶8 Nonetheless, Mother and Stepfather waived trial and entered pleas under rule 34(e) of the Utah Rules of Juvenile Procedure, thereby acknowledging that the allegations in the amended petition could be accepted as true but without admitting they were. Following a hearing, the court deemed the amended petition's allegations to be true and adjudicated Child neglected as to Mother and Stepfather "based upon concerns of inappropriate discipline and parenting deficits." The court further stated that based on its finding of neglect, Child came "under the provisions of the Juvenile Court Act and [is] under jurisdiction of the court."
¶9 After the court issued its ruling, Mother requested that Child be returned to her. The court noted that Father had a right to respond and declined to rule on the request until the disposition hearing scheduled for later that month. Prior to the hearing, Father filed a request that he retain custody of Child and that Child remain in his care.
¶10 At the disposition hearing, the guardian ad litem (the GAL) stated that "the child and family plan seems appropriate" and that the case remains a protective supervision services case. The GAL also stated that the permanency plan of reunification seemed to be in Child's best interest but noted that the question of custody remained to be resolved.
¶11 Next, Mother renewed her request that Child be returned to her, noting that she and Stepfather were "doing well and are engaged with DCFS." Father opposed this request, arguing that it was in Child's best interest to remain with him in Florida. The court denied Mother's request, stating that it "needs to see how all parents do on the plan" and that it "is most comfortable with [Child] remaining in his Father's care right now," where he "is currently doing well." It reasoned that it was "too early in this case . . . to make that significant of a switch." The court also reiterated that "[t]he child and family plan is appropriate" and directed "all the parents to work on services and improvements they can make."
¶12 In March 2021, the court held a review hearing at which the GAL indicated that Child "continually expressed . . . that he likes it in Florida" and "is happy with" Father. Although Child was not afraid or unwilling to return to Mother, he told the GAL that he preferred to remain in Florida with Father. The GAL expressed that he was "confident that [Child] could be okay in either location." Next, Mother requested a trial home placement, which the court did not authorize because it wished first to review Mother's and Stepfather's parental fitness evaluations and to allow therapists to opine on the matter.
¶13 In June 2021, Mother filed a request that Child be returned to her care, asserting that she "has completed all of the services required by the Child and Family Plan." At a hearing held that same month, the State did not take a position on whether Child should return to Mother or remain with Father, stating that "[b]oth homes seem appropriate" and that Child's needs would be met in either home. The GAL provided the same opinion but reiterated that Child had repeatedly expressed a preference to stay with Father. The court ruled that Child was to remain in Florida with Father and scheduled a permanency hearing to determine "whether the primary permanency goal should remain in effect and be carried out or whether the concurrent [goal]" of permanent custody and guardianship with a relative "should now be adopted as the primary goal."
¶14 The court granted Mother's subsequent request that Child come to Utah for an in-person visit. Child visited Mother for a week that July. Curiously, Mother dispatched Stepfather to pick him up at the airport. The visit went well except for one incident in which Mother began calling Father when Child was misbehaving. In response, Child grabbed the phone, disconnected the call, and began to cry. Mother recorded Child's outburst with her cellphone.
¶15 In August 2021, the court held the permanency hearing in which the State, Mother, and Father all presented evidence. A DCFS caseworker testified that Mother and Stepfather had completed the goals outlined in the child and family plan. She also stated that Mother and Child had been having regular supervised telephonic or virtual visits and that Mother had been behaving appropriately, although Child at times seemed uninterested in talking. She also reported on Child's week-long visit to Utah, stating that it went well. The caseworker recommended, should reunification with Mother continue to remain the permanency goal, "that a trial home placement be authorized for [Child] to return to Utah" before the beginning of the school year.
¶16 Father called family members who testified that Child was faring well with him in Florida. Father's wife also testified that she and Father refrain from corporal punishment and instead discipline Child by taking away privileges. She said that Father will occasionally have Child do "about five or ten" pushups as a form of discipline.
¶17 Father described how Child's schooling had improved since he had come to live with him but stated that despite this progress, Child was still being held back in second grade. He recounted that Mother had called family services in Florida claiming that Father was neglecting Child, but the case was quickly closed as baseless. He also stated that Mother refused to pay her share of Child's medical expenses. Father expressed concerns about Child returning to Mother based on the court's prior adjudication of neglect and stated that Child had communicated a desire to remain with him.
¶18 Father also called Child's therapist, guidance counselor, and teacher to testify. The therapist testified that when Child first came to see her six months earlier, he was "[v]ery dysregulated," "had very poor interpersonal skills," and had "very poor boundaries" but that he had improved with therapy. She also stated that Child expressed a desire to remain with Father in Florida, primarily "because of whoopings" he had received in Utah. The therapist did acknowledge it was possible that Child's reluctance to return to Mother might be due to his adjustment disorder, which made Child dislike "being moved from place to place."
¶19 The guidance counselor testified that Child was evaluated before he began school in Florida and that his reading level "was significantly low." Although Child's reading level improved with tutoring, she stated that because "he still was significantly low in reading," the school recommended that he repeat second grade. She stated that Child would also benefit from repeating second grade because he was one of the younger children in his grade level and his social maturity was therefore lower than that of his peers. For example, Child had struggled more than his classmates with making friends and would become upset if one of his friends chose another friend, "which is common . . . for younger kids."
¶20 The teacher testified that Child suffered from behavioral issues when he first began school but that he had since greatly improved, and she "saw him definitely mature throughout the school year." She believed that Father and his wife, whom she described as "very involved parents," contributed to this marked improvement in Child. The teacher stated that Child was clean, always brought a nutritious meal to school, and appeared to be "[v]ery well taken care of physically."
¶21 Mother called Child's aunt and Stepfather to testify. The aunt testified that during Child's recent visit to Utah, Child "seemed scared, and he started crying and he ran upstairs" when Mother started calling Father because Child was misbehaving. Stepfather described the activities Child and his siblings engaged in when at home with Mother and Stepfather. He also testified that although DCFS did not ask him to do so, he elected to go to individual therapy twice per week and that he would be willing to engage in additional court-ordered services. He said he would refrain from corporal punishment of Child. He acknowledged that he had "very few" opportunities to have contact with Child over the past year because he was usually at work when Mother had her scheduled telephonic and virtual parent-time with Child.
¶22 Mother testified that she and Child enjoyed a close relationship but that she had felt "alienated" from him over the past year. She stated that she had secured a spot for Child at a Utah school that had a specialized tutoring program for children who were reading below their expected level. Mother testified that Child had a good relationship with his half-siblings and step-sibling who also lived with Mother and Stepfather. She stated that she was concerned about Child living with Father because Father "has a temper," and she recounted a prior incident in which Father had wrapped one of her other children tightly in a blanket and would not let him out even though he was screaming. Mother also recounted the incident during Child's visit to Utah when she began calling Father because Child was misbehaving. "Child ripped the phone from me and hung up on it and then started bawling his eyes out, saying he didn't want me to call him because he would punish him." Mother submitted the recording of Child's outburst to the court. Mother stated that she would be willing to engage in any additional services that the court ordered and to refrain from corporal punishment of Child.
This incident had been investigated. Father was not convicted of any offense related to this incident, and the juvenile court noted in its Permanency Hearing Order that "at the time, [Mother] denied that [Father] had done anything wrong."
¶23 Mother also testified that when Child visited her in Utah, she sent Stepfather to pick Child up from the airport because their youngest child had a medical emergency. She also stated that she set up an appointment with an optometrist and purchased glasses for Child during the visit, but she was not able to schedule an in-person family therapy session with Child because her therapist was on vacation at that time. Mother stated that she believed that family therapy was necessary to assist in rebuilding her relationship with Child, but only "[t]o an extent" because they still had "a very good relationship in person."
¶24 During closing arguments, the State argued that Child should return to Mother because this was a reunification case, Mother and Stepfather had completed the child and family plan, and there were no safety concerns. The GAL argued in closing that although he did not have safety concerns about Child returning to Mother and although he believed that Child "would be fine in either placement," it was in Child's best interest to remain with Father because he was "thriving" and had "made significant progress" with Father and because Child had consistently expressed a desire to remain with Father. The GAL thus argued that the permanency goal should be adjusted so that Child would remain with Father and that "significant visitation" should be provided to Mother.
¶25 Mother argued that Child should be returned to her care because this was a reunification case in which she and Stepfather had fully complied with the child and family plan and because there were no safety concerns regarding Child's return. Stepfather added that this juvenile case was "being used to wage what appears to be and amounts to be like a custody fight." He argued that because the goals of reunification had been met, Child should be returned to Mother and this juvenile case closed, and that any further modifications to custody should go through a district court.
¶26 Father argued that the court needed to decide what was in Child's best interest and that it would be inefficient and against Child's best interest to leave the determination regarding custody to the district court. He argued that Mother was "very ignorant" of Child's needs and that Child's education and social skills had "drastically improved" while Child was in his care. He also argued that there was no evidence that Stepfather had a good relationship with Child given their limited contact over the past year and that, given their past interaction, it was "highly inappropriate" for Mother to send Stepfather to pick Child up from the airport during his visit to Utah. Father thus asked the court to change the permanency goal, terminate reunification services, and award continued custody of Child to him, with Mother having "appropriate parent-time."
¶27 The juvenile court issued a Preliminary Custody Order in which it changed the permanency goal for Child to permanent custody and guardianship with Father. The court stated this order was "issued only for the purpose of directing the parties as to where [Child] should be enrolled in school" and that an order with findings of fact and conclusions of law would be forthcoming.
¶28 In December 2021, the court issued a Review Order in which it granted "permanent legal and physical custody and guardianship" of Child to Father and standard out-of-state parent-time to Mother. Although the court made limited findings of fact in that order, it indicated that it would issue a more detailed set of findings of fact and conclusions of law explaining its decision. The court then closed the case and terminated its jurisdiction.
¶29 In February 2022, the court issued its Permanency Hearing Order. The order stated that "[a]t the Disposition hearing in this matter, the Court set a primary permanency goal of reunification with a parent and a concurrent plan of permanent custody and guardianship with a relative." But at that time, the court had "indicated that it was too early to decide which parent should be the primary target of reunification" and that it had "made it clear that it wanted additional information regarding how all adults- [Mother, Stepfather, and Father]-would respond to the services, as well as how [Father] would handle having primary care of [Child] and how [Child] would respond to that placement, before a decision about [Child's] permanent custody would be made."
¶30 Although the court commended Mother and Stepfather for completing the child and family plan and appearing "to have made the changes necessary to achieve an acceptable level of safety in their home," the court stated that this did not mean that it found "their home to be perfect, or even optimal, for the healthy rearing of children" and that it meant "only that they meet a minimal standard of safety, entitling them to be free of state intervention in their private home and family life." Citing Utah Code section 80-3-409(2), the court stated that "[w]hile it is true that the Juvenile Court generally tries to return a child to the home from which he was removed, that is not mandatory."
¶31 The court explained that because it had made a finding of neglect as to Mother and a finding of dependency as to Father, "the parental presumptions for both parents have been rebutted and they are on equal footing before the Court." And because "the adjudicated findings of neglect and dependency constitute a substantial and material change in circumstances that would justify modification of any prior custody orders," the focus of the court's analysis of where Child "should be placed on a permanent basis must focus on his best interests."
The parental presumption, classically viewed, "recognizes the natural right and authority of the parent to the child's custody." Duncan v. Howard, 918 P.2d 888, 892 (Utah Ct. App. 1996) (quotation simplified). Under the presumption, "where one party to the controversy is a nonparent, there is a presumption in favor of the natural parent, even if an ordinary best-interest inquiry would come out in favor of the nonparent." In re A.T., 2020 UT App 50, ¶ 12, 464 P.3d 173 (quotation simplified). The juvenile court's invocation of this principle in a case between two natural parents-and not between a natural parent and a nonparent-is on a different footing. See id. ¶ 13 (stating that the court is unaware of any Utah case in which the parental presumption has been applied in a dispute between two natural parents); id. ¶¶ 14-15 (assuming "without deciding" that the presumption applies in such circumstances and concluding "[t]he neglect finding against Mother rebuts any parental presumption she might have, and the dependency finding against Father rebuts any parental presumption he might have"). Be all that as it may, the court's analysis in this case left both parents on a level playing field in the sense that neither benefitted from a parental presumption at the expense of the other.
¶32 The court noted that although the parental presumptions of both parents had been rebutted, the difference between the finding of neglect as to Mother and dependency as to Father "is significant." Namely, the former included a finding of fault while the latter did not, meaning that Mother had harmed Child while Father had not. Compare Utah Code Ann. § 80-1-102(58)(a)(ii) (LexisNexis Supp. 2022) ("'Neglect' means action or inaction causing . . . lack of proper parental care of a child by reason of the fault or habits of the parent, guardian, or custodian[.]") (emphasis added), with id. § 80-1-102(21) ("'Dependent child' or 'dependency' means a child who is without proper care through no fault of the child's parent, guardian, or custodian.") (emphasis added). But because Mother and Stepfather had satisfactorily addressed the deficits in their parenting, the court compared their "rehabilitated" home with that of Father for the purpose of its best interest analysis.
Because the applicable provisions of the Utah Code in effect at the relevant time do not materially differ from those currently in effect, we cite the current version of the code for convenience.
¶33 In conducting its best interest analysis, the court noted that Mother "displayed an acrimonious attitude toward" Father throughout the proceeding and engaged in "harassment tactics" while Child was living with Father. For example, Mother "refus[ed] to pay small sums of money, delay[ed] the sharing of insurance information for [Child's] medical or dental care, and refus[ed] to provide documentation needed for his school enrollment." She also contacted Florida welfare authorities, but her complaints were determined to be meritless, and the court found it notable that she did not notify the court or Utah DCFS of her concerns. The court reasoned that based on "the attitude and level of anger" Mother displayed toward Father during the proceeding, "[i]t is foreseeable that [Mother] will exercise her anger against [Father] by being uncooperative with allowing contact and parent time between [Child] and [Father], despite that relationship being of exceptional importance and benefit to [Child]."
¶34 The court further noted that Mother's "quest to have [Child] return to her care seemed less about their relationship and more about the financial implications of custody." And "[m]ore importantly, despite the rehabilitative services she completed, she seems to lose focus on [Child's] needs." In support of this conclusion, the court pointed to the fact that Mother sent Stepfather, "a person who has mistreated [Child] and who[m] he fears," to pick Child up from the airport during his Utah visit, which "indicate[d] a disconnection with her child and a lack of consideration for what his needs might be." Although Mother remained home with a sick child, the court stated that Stepfather, the sick child's father, could have just as easily remained home with the child, enabling Mother to meet Child at the airport. The court also pointed to the incident when Mother, who "was unable to effectively discipline [Child]," threatened to call Father and Child became upset and began to cry. After noting that this was "the only report of [Child] expressing any fear of [Father]," the court stated that it was "concerning that [Mother] employed [Father] as a disciplinary threat, setting him up to be someone [Child] should fear," and the court took a negative view of Mother's decision to record Child's outburst "[i]nstead of calming him and using another approach." Accordingly, the court found Mother's "focus on impeaching [Father] rather than effectively addressing her child's behavior to be a manipulative parenting approach and one that is detrimental to [Child] and his relationship with [Father]."
¶35 The order next pointed to the fact that Child had made educational progress while with Father, whereas Mother "was not even aware of [Child's] delays." And while Child's need to be held back a year was "regrettable," the court stated it believed it was in Child's best interest and that it was not attributable to Child's placement with Father, who did everything in his power to address Child's educational delays. The court found that Mother's "apparent lack of interest in [Child's] current schooling and her lack of accountability for his educational deficits, despite their origination while [Child] was in her home, suggest his delays are more likely a result of inattention on her part rather than any failure by [Father]."
¶36 And while the court praised Child's progress in his mental health and socialization while with Father, the court noted that Mother failed to schedule an appointment with a family therapist when Child was visiting her in Utah. Although Mother's therapist was unavailable during that time, the court stated that Mother could have obtained an appointment with another therapist because Child did not have an established relationship with Mother's personal therapist. The court expressed concern that Mother's "lack of focus on [Child's] needs and well-being will result in a future lapse of therapy and that [Child] would be at risk of losing his progress in his mental health and behavioral issues."
¶37 The court also noted that Child "has not seemed disturbed by his separation" from his half-siblings and step-sibling who reside with Mother and Stepfather and that he also has a new half-sibling in Father's house. Additionally, Child had expressed a desire to remain with Father, and "[g]iven what [Child] has experienced in his short life, his desires should be considered."
¶38 "Balancing all factors," the court concluded that it was in Child's best interest that Father be granted custody. The court stated that this "will maintain [Child's] current stability and protect his important relationships, as well as sustain his progress in both school and therapy." The court also held that it was in Child's best interest that he "have meaningful parent-time with [Mother]" due to her successful completion of the child and family plan. But it concluded that "returning [Child] to [Mother's] home would create a substantial risk of detriment to his physical or emotional wellbeing."
¶39 Mother appeals.
ISSUES AND STANDARD OF REVIEW
¶40 Mother first argues that the juvenile court "committed threshold legal errors" in its application of Utah Code section 80-3-409(2) when it terminated reunification services on the ground that Child's return to Mother posed a substantial risk of detriment to Child's physical or emotional well-being. She next challenges the court's statutory authority to grant permanent custody and guardianship of Child to Father. Both of these arguments involve legal questions, which we review for correctness. See Commonwealth Prop. Advocates, LLC v. Mortgage Elec. Registration System, Inc., 2011 UT App 232, ¶ 5, 263 P.3d 397. See also In re C.K., 2000 UT App 11, ¶ 17, 996 P.2d 1059 (stating that "issues of law" are reviewed "for correctness, according no deference to the [juvenile] court").
Father argues that some of Mother's arguments are unpreserved. Because we resolve the merits of the claims in Father's favor, we need not address this preservation argument. See State v. Kitches, 2021 UT App 24, ¶ 28, 484 P.3d 415 ("If the merits of a claim can easily be resolved in favor of the party asserting that the claim was not preserved, we readily may opt to do so without addressing preservation.") (quotation simplified).
ANALYSIS
¶41 Utah Code section 80-3-409(2) provides,
(a) If reunification services are ordered . . . the juvenile court shall, at the permanency hearing, determine . . . whether the minor may safely be returned to the custody of the minor's parent.
(b) If the juvenile court finds, by a preponderance of the evidence, that return of the minor to the minor's parent would create a substantial risk of detriment to the minor's physical or emotional well-being, the minor may not be returned to the custody of the minor's parent.Utah Code Ann. § 80-3-409(2)(a)-(b) (LexisNexis Supp. 2022) (emphases added). Section 80-3-409(3) lists what a court shall "review and consider" "[i]n making a determination under Subsection (2)(a)." Id. § 80-3-409(3)(a).
Subsection (c) of the statute lists instances that amount to prima facie evidence that return of the minor child to a parent would constitute a substantial risk of detriment to the minor, see Utah Code Ann. § 80-3-409(2)(c) (LexisNexis Supp. 2022), none of which apply to the present case.
¶42 Mother argues that the juvenile court's analysis under section 80-3-409(2) contained threshold legal errors because the court "did not make any finding that Child could not safely be returned to Mother" and because the court "used a best-interest analysis in lieu of the statutory substantial-risk-of-detriment analysis." We disagree on both counts.
A. Safety Finding
¶43 Mother argues that the juvenile court committed legal error because it "made no finding that Mother was unsafe, and, based on the evidence produced at the permanency hearing" in which the State, the DCFS caseworker, and the GAL all informed the court they did not have any safety concerns regarding Child's return to Mother, "any such finding would have been against the clear weight of the evidence." In essence, Mother's argument seems to assume that subsection (a) of section 80-3-409(2) is a threshold requirement that must be dealt with before moving to subsection (b), and she therefore asserts that the court was required under subsection (a) to make a specific safety finding separate and apart from its determination that Child's return to her posed a substantial risk of detriment to Child's physical or emotional well-being under subsection (b). This is incorrect.
¶44 Under section 80-3-409(2), "the overarching question to be addressed during [a permanency] hearing is whether the child may be safely returned to the parent." In re J.H., 2006 UT App 205, ¶ 13, 138 P.3d 70. But this overarching question, articulated in subsection (a) of the statute, is intertwined with the substantial-risk-of-detriment inquiry contained in subsection (b). The latter inquiry "is a subpart" of the broader safety question. Id. Thus, "the first step to be performed within [the safety] determination is to decide whether return would create a substantial risk of detriment to the child's well-being." Id. (quotation simplified). "If returning the child poses such a risk, the child may not be returned, the inquiry regarding safety ends, and the juvenile court is forced to take other actions, i.e., abandoning reunification efforts and steering the case in a different direction." Id. (quotation simplified). See In re A.S.A., 2012 UT App 151, ¶ 5, 279 P.3d 419 (per curiam) (stating that under the statute, "[t]he ultimate determination is whether the child may be safely returned," while "[a] consideration in making this determination is whether the return to the parent's custody would create a substantial risk of detriment to the child"). Only if the court determines that return does not pose a substantial risk of detriment to the child's physical or emotional well-being does the court proceed to consider other factors, including those listed in section 80-3-409(3), in making the ultimate determination of whether the child may safely be returned to the parent. See In re A.S.A., 2012 UT App 151, ¶ 5; In re J.H., 2006 UT App 205, ¶ 14.
The opinion in In re J.H., 2006 UT App 205, 138 P.3d 70, specifically discussed Utah Code section 78-3a-312(2), which was later renumbered, with minor changes, as section 80-3-409(2). Compare Utah Code Ann. § 78-3a-312(2) (LexisNexis Supp. 2005), with id. § 80-3-409(2) (Supp. 2022).
¶45 Here, the juvenile court determined that returning Child to Mother's "home would create a substantial risk of detriment to his physical or emotional well-being." This determination, by itself, was sufficient to preclude Child's return to Mother, see Utah Code Ann. § 80-3-409(2)(b) (stating that if the court determines "that return of the minor to the minor's parent would create a substantial risk of detriment to the minor's physical or emotional well-being, the minor may not be returned to the custody of the minor's parent") (emphasis added), and this determination obviated the need for any further finding related to the broader question of whether Child may safely be returned to Mother. Specifically, it obviated the need for any finding under subsection (a) about the safety of Mother's home as an abstract proposition. And as discussed in part I.B. below, such a determination was supported by the evidence presented at the permanency hearing. Accordingly, the court did not commit legal error by not making any additional safety-related findings.
B. Substantial-Risk-of-Detriment Analysis
¶46 Mother argues that "[t]he juvenile court made a threshold legal error when it substituted its best-interests analysis in the place of the statutorily required analysis of whether returning custody to Mother would constitute a substantial risk of detriment to Child." Unlike with the best-interest inquiry, Mother asserts, the substantial-risk-of-detriment inquiry "does not holistically examine all the relevant circumstances of the child's life," but instead focuses on "whether the child will be harmed by returning to the parent." See In re K.S., 2022 UT App 68, ¶ 53, 512 P.3d 497 ("The best interest test is broad, and is intended as a holistic examination of all the relevant circumstances that might affect a child's situation.") (quotation simplified).
¶47 But Mother mischaracterizes the court's analysis. While the court noted in its Permanency Hearing Order, with our emphasis, that "[t]he analysis of where [Child] should be placed on a permanent basis must focus on his best interests," the court also entered two specific findings: first, that returning Child to Mother's "home would create substantial risk of detriment to his physical or emotional well-being," and second, that "[t]he goal of permanent custody and guardianship with [Father] continues to be in [Child's] best interests and has been achieved." Accordingly, the court applied the best-interest analysis only after it determined that Child could not be returned to Mother under section 80-3-409(2)(b)-not in place of it.
But even if the court had determined that Child's return to Mother did not pose a substantial risk of detriment to Child's physical or emotional well-being, the court would have then had to conduct the broader safety inquiry under subsection (a) of section 80-3-409(2). Under this inquiry, it is "entirely appropriate" to conduct a best-interest analysis. In re J.H., 2006 UT App 205, ¶ 14, 138 P.3d 70 ("The juvenile court must then determine the safety question, looking at what is in the best interests of the child-an inquiry underlying all actions of the juvenile court."). See also Utah Code Ann. § 80-3-302(11) (LexisNexis Supp. 2022) ("No later than 12 months after the day on which the child is removed from the home, the juvenile court shall schedule a hearing for the purpose of entering a permanent order in accordance with the best interest of the child."). Accordingly, the court's determination of whether Child could safely be returned to Mother would have, in any event, implicated a best-interest analysis.
¶48 To be sure, the findings the court made supporting various aspects of its analysis in this case overlapped. Among other things, the court's analysis emphasized the following findings: that Mother's acrimonious attitude toward Father would likely negatively affect Child's relationship with him; that Mother employed a "manipulative parenting approach" by focusing on "impeaching" Father rather than addressing Child's needs; that Mother sent Stepfather, who had previously mistreated Child and with whom Child had little contact throughout the past year, to pick Child up from the airport, thereby indicating a "disconnection with her child and lack of consideration for what his needs might be"; that Mother seemed to be more concerned with "the financial implications of custody" than with her relationship with Child; that Mother was unaware of Child's learning delays and had an "apparent lack of interest in [Child's] current schooling"; and that Mother failed to schedule a therapy appointment during Child's Utah visit, which was indicative of a "lack of focus on [Child's] needs and well-being" and of a possible future lapse in therapy. While these findings are not unrelated to Child's best interest, they are, in the context of this case, entirely germane to the pivotal question of whether there was a substantial risk of detriment to Child if he returned to Mother. And while the court could certainly have more explicitly tied its findings to its substantial-risk-of-detriment analysis, this shortcoming is not fatal. Cf. In re A.S., 2014 UT App 226, ¶ 7, 336 P.3d 582 (per curiam) ("[A] trial court's failure to make explicit findings supporting its decision does not, alone, warrant reversal so long as the basis for the trial court's ruling is readily apparent from the record."); In re J.F., 2013 UT App 288, ¶ 10, 317 P.3d 964 ("That there is some overlap between the juvenile court's findings supporting grounds for termination and its findings supporting the best interests analysis is of little import.").
¶49 Furthermore, the court's best-interest analysis was appropriate under Utah Code section 80-3-302(11), which directs that "[n]o later than 12 months after the day on which the child is removed from the home, the juvenile court shall schedule a hearing for the purpose of entering a permanent order in accordance with the best interest of the child." See Utah Code Ann. § 80-3-302(11) (LexisNexis Supp. 2022) (emphasis added). See also id. § 80-3-409(8)(a) ("The juvenile court may, in the juvenile court's discretion . . . enter any additional order that the juvenile court determines to be in the best interest of the minor[.]"); id. § 78A-6-102(5)(g) (stating that one of the purposes of the juvenile court is to, "consistent with the ends of justice, act in the best interests of the minor in all cases and preserve and strengthen family ties"). Thus, the court was statutorily required to consider Child's best interest before entering its Permanency Hearing Order.
¶50 For all these reasons, the juvenile court did not commit legal error in conducting its analysis under Utah Code section 80-3-409(2).
II. Grant of Permanent Custody and Guardianship to Father
¶51 Mother next argues that the juvenile court erred in ordering placement of Child "in the permanent legal and physical custody of [Father]." First, she argues that the court's grant of permanent custody to Father "overstepped the statutory distinctions between juvenile courts and district courts." Second, she asserts that the court's order "overstepped the statutes that direct when and how permanency plans should be changed." We disagree on both counts.
¶52 In support of her first argument, Mother asserts that "[j]uvenile courts should not be deciding custody between two fit parents." She contends that while "the juvenile court's primary concern is the relationship between a child and a parent who has been accused of abuse or neglect," see Utah Code Ann. § 78A-6-103(2)(a) (LexisNexis Supp. 2022), "[t]he district court has a far broader jurisdiction over the relationship between parents and children but also the relationship between the two parents." She further argues that a district court "is in a better position to decide how the custody dispute should be resolved" and "would have done a more thorough job in comparing her with Father." In support of these assertions, she cites Utah Code section 30-3-10(2), which provides a detailed list of factors that district courts consider when making custody determinations in divorce cases.
¶53 In support of her second argument, Mother asserts that the court's grant of permanent custody and guardianship to Father "was not necessary and was not appropriate" because the State pursued reunification and advocated that custody be returned to Mother. She contends that because "the State may pursue a permanency plan other than reunification 'only as a last resort,'" see id. § 80-2a-201(4), and because "there is no indication that a change of permanency plan was required 'as a last resort,'" the juvenile court "overstepped its role when it unilaterally changed the permanency plan over the State's recommendation." Mother also takes issue with the court's grant of permanent custody and guardianship to Father, which possibly precludes her from petitioning for custodial change in the future. See id. § 78A-6-357(3)(d) ("A parent may not file a petition for restoration of custody under this section during the existence of a permanent guardianship established for the child under Subsection 80-3-405(2)(d)."). Mother asserts that such a permanent and adverse alteration to her parental rights "was not appropriate under the facts and circumstances of this case."
Because Utah Code section 80-3-405(2)(d) provides that "[i]f a minor has been placed with an individual or relative as a result of an adjudication under this chapter, the juvenile court may enter an order of permanent legal custody and guardianship with the individual or relative of the minor," see Utah Code Ann. § 80-3-405(2)(d)(i) (LexisNexis Supp. 2022) (emphases added), and because Utah Code section 80-3-102(6) does not include "natural parent" in its definition of "relative," see id. § 80-3-102(6); supra note 2, the question arises whether Mother-as Child's natural parent, see Utah Code Ann. § 80-3-302(1)(a)(i)-would be prevented from petitioning for custodial change in the future. We have no occasion to resolve this issue here.
¶54 Mother's arguments, however, are flawed in several respects. As an initial matter, contrary to her assertions, this was not merely a custody proceeding between "two fit parents." The juvenile court's order granting Father permanent custody and guardianship of Child was entered in the context of the court's prior adjudication that Mother neglected Child. Although Mother subsequently complied with the child and family plan, the court nonetheless determined that Child could not safely be returned to her care because it found that the return posed a substantial risk of detriment to Child's physical or emotional well-being. See id. § 80-3-409(2). Thus, Mother incorrectly asserts that she is a presumptively fit parent.
¶55 Additionally, because "the juvenile court has power to enter decisions regarding the custody of Child notwithstanding any continuing jurisdiction the district court may retain[,] . . . the juvenile court can modify custody and grant permanent custody" to the noncustodial parent, In re J. H, 2006 UT App 205, ¶ 11, 138 P.3d 70, so long as it is authorized by statute to do so in that particular circumstance, In re BB, 2002 UT App 82, ¶ 12, 45 P.3d 527 (stating that juvenile courts, being "creatures of statute," "are allowed to do only what the legislature has expressly authorized") (quotation simplified) See Utah Code Ann § 78A-6-104(1)(a)(iii) ("The juvenile court has jurisdiction, concurrent with the district court . . . over questions of custody, support, and parent-time of a minor if the juvenile court has jurisdiction over the minor's case[.]"). Here, the juvenile court unquestionably had continuing jurisdiction over Child, and it was authorized by statute to order permanent custody and guardianship of Child. See Utah Code Ann. § 80-3-409(4).
¶56 The juvenile court obtained original jurisdiction over Child when the State petitioned the court for protective supervision services, alleging abuse and neglect. See id. § 78A-6-103(2)(a). And as Mother acknowledged during oral argument, the juvenile court had continuing jurisdiction over Child following his removal and placement with Father. See id. § 80-3-302(3)(a).
¶57 Because the court ordered reunification services for Mother, it was required to hold a permanency hearing no more than 12 months after Child was removed from her home, see id. § 80-3-406(13)(a); id. § 80-3-302(11)-(12), to determine whether Child may safely be returned to Mother's care, see id. § 80-3-409(2). One of the purposes of the permanency hearing "is to compel the end of the period during which a child is in legal limbo and the parent is receiving reunification services from the State." In re J.N., 960 P.2d 403, 407 (Utah Ct. App. 1998). And because legal limbo "seriously affects" the child, "permanency adjudication occurs on a strict timeline." In re C.Z., 2021 UT App 28, ¶ 31, 484 P.3d 431.
¶58 Here, as discussed above, the court determined that Child could not safely be returned to Mother because there was a substantial risk of detriment to Child's physical or emotional well-being. See Utah Code Ann. § 80-3-409(2)(b). In light of this finding, and because the court did not extend reunification services, see id. § 80-3-409(7), it was required under Utah Code section 80-3-409(4) to order termination of reunification services and to "make a final determination regarding whether termination of parental rights, adoption, or permanent custody and guardianship is the most appropriate final plan for [Child]," see id. § 80-3-409(4)(a)-(b). See also In re J.H., 2006 UT App 205, ¶ 7, 138 P.3d 70 (stating that "because permanency hearings are designed to end the legal limbo for the children concerned, the permanency hearing statute clearly requires," if the juvenile court determines the child is not to be returned to the parent, that the court "order the termination of reunification services and set a final permanency plan for the child, i.e., adoption, termination of parental rights, or permanent custody or guardianship") (quotation simplified). Significantly, section 80-3-409(4) "leaves a juvenile court judge with no discretion." In re S.K., 1999 UT App 261, ¶ 12 n.5, 987 P.2d 616. See Utah Code Ann. § 80-3-409(8)(a) ("The juvenile court may, in the juvenile court's discretion . . . enter any additional order that the juvenile court determines to be in the best interest of the minor, so long as that order does not conflict with the requirements and provisions of Subsections (4) through (7)[.]") (emphasis added). The statute does not vest the juvenile court with the authority to defer to the district court in such a matter. Indeed, such an action would run afoul of the strict timeline mandated by statute in the interest of ending the legal limbo of the abused or neglected child.
The strict statutory timeline continues even after the permanency hearing. For example, the juvenile court may not ordinarily extend reunification services for more than 90 days after the permanency hearing, see Utah Code Ann. § 80-3-409(7)(a), (c) (LexisNexis Supp. 2022), or if the final plan is to terminate parental rights, the petition for termination must be filed and a pretrial hearing held within 45 days of the permanency hearing, see id. § 80-3-409(9)(a), and the court must decide whether to terminate parental rights no more than 18 months after the minor was removed from the home, see id. § 80-3-409(12)(c).
¶59 Here, the court determined that granting permanent custody and guardianship to Father and parent-time with Mother was the most appropriate of the three limited dispositional choices available to it-i.e., "termination of parental rights, adoption, or permanent custody and guardianship." Utah Code Ann. § 80-3-409(4)(b). Accordingly, despite Mother's assertions to the contrary, the court's grant of permanent custody and guardianship to Father was both appropriate and necessary given the mandate of the applicable statutory scheme.
Admittedly, it seems odd that, in a situation such as this with two parents vying for custody of a minor child, the statute authorizes the award of permanent guardianship to one parent over the other, where both enjoy parental rights in the minor child. But such is the statutory regimen that we are called upon to interpret and apply. And permanent custody and guardianship is one of only three options available by the terms of the controlling statute when parental neglect has triggered the juvenile court's jurisdiction and the case progresses to a permanency hearing at which parental neglect is found and reunification services are terminated. See id. § 80-3-409(4)(b).
CONCLUSION
¶60 The juvenile court did not err in its analysis under Utah Code section 80-3-409(2), and because it determined that returning Child to Mother would pose a substantial risk of detriment to Child's physical or emotional well-being, the court did not err in granting permanent custody and guardianship to Father.
¶61 Affirmed.