State v. S.H. (In re A.H.)

554 P.3d 969

2024 UT 26

STATE of Utah, IN the INTEREST OF A.H., J.H., J.H., L.H., N.H., S.H., and E.H., persons under eighteen years of age.

State of Utah, Petitioner,

v.S.H. and N.H., Respondents.

No. 20221029

Supreme Court of Utah.

Heard November 13, 2023

Filed July 25, 2024

On Certiorari to the Utah Court of Appeals

Fourth District Juvenile Court,, Utah County, The Honorable Suchada P. Bazzelle, Nos. 1146856, 1145457, 1145458, 1145453, 1145454, 1145455, and 1145456

Attorneys^*:

Sean D. Reyes, Att’y Gen., Carol L.C. Verdoia, John M. Peterson, Asst. Att’ys Gen., Salt Lake City, for petitioner

Martha Pierce, Salt Lake City, Guardian ad Litem

Alexandra Mareschal, Kristin H. Norman, Jason B. Richards, Debra M. Nelson, Salt Lake City, for respondent N.H. Emily Adams, Salt Lake City, for respondent S.H

Chief Justice Durrant authored the opinion of the Court, in which Associate Chief Justice Pearce, Justice Petersen, Justice Hagen, and Justice Pohlman joined.

Chief Justice Durrant, opinion of the Court:

INTRODUCTION

¶1 This case concerns a lengthy interaction between a family and Utah’s child welfare system. The saga began in 2018, when a juvenile court, responding to a petition from the Utah Division of Child and Family Services (DCFS), removed seven children from their biological parents’ custody on grounds of abuse and neglect. The children were restored to their biological parents’ custody in early 2019 but were removed again a few months later after DCFS found continued problems.

¶2 After this second removal, DCFS was unable to find a single temporary placement that could host all seven children. The five oldest children were initially placed with various families before eventually being sent to live with their grandparents in New Mexico. The two youngest, Alice and Liam,¹ were placed with a foster family in Utah. This separation persisted until October 2020, when the juvenile court began proceedings to determine which permanent placement would be best for each child. These proceedings, known as a termination trial, were specifically held to determine whether the court should terminate the legal connection between the children and their biological parents. At these proceedings, the Attorney General’s Office represented DCFS, a court-appointed guardian ad litem represented the children, and private counsel represented the biological parents.

¶3 Before the termination trial began, the parties agreed to place the five oldest children in New Mexico with the grandparents as their permanent guardians. But the parties could not agree on where to place Alice and Liam, so the trial focused on those two children. After several days of testimony from the biological parents, grandparents, foster family, and the therapists and caseworkers who had supervised the two children, the juvenile court reached a decision. The court determined that it was in Alice and Liam’s best interest to terminate their legal relationship with their biological parents and to allow the foster family to adopt them. The biological parents appealed that decision.

¶4 The court of appeals reversed the termination order, concluding that the juvenile court’s decision was against the clear weight of the evidence. The appellate court also held that, for the termination of parental rights to be necessary, termination must be "materially better" than any other option. Because it reversed on the merits, the court of appeals did not reach some of the other issues the parents raised, including whether their counsel had been ineffective. The State and the guardian ad litem petitioned for review of the court of appeals’ ruling, and we granted certiorari. The guardian ad litem also raises the argument that one of the cases the juvenile court relied upon, In re B.T.B.,² was wrongly decided.

¶5 As a threshold matter, we reject the guardian ad litem’s contention that In re B.T.B. is flawed. We also find several errors in the court of appeals’ reasoning. First, the court erred by applying the "materially better" standard instead of the relevant statutory language. Second, the court exceeded the scope of appropriate appellate review by reweighing evidence and considering evidence outside the record. Third, the court erred by concluding that the juvenile court’s termination decision was against the clear weight of the evidence. Accordingly, we reverse and remand for consideration of the remaining issues in the biological parents’ initial appeal.

BACKGROUND³

¶6 We begin with the composition of the family at issue: a mother, a father, and seven children. The mother is the biological mother of all seven children. The father is the biological father of all but the oldest child. To avoid confusion, we refer to the mother and father collectively as the biological parents. For the purposes of this case, the children can be divided into two groups. The first group con- sists of the two youngest children: Alice, who was six years old at the time of the termination trial in October 2020, and Liam, who was four years old. The second group consists of Alice and Liam’s five older siblings, who ranged in age from fifteen to eight years old at the time of the termination trial.⁴ Also in the picture are the children’s grandparents. The grandparents are biologically related to only the oldest sibling. But the various parties and the court of appeals refer to them as grandparents to all the children, and we follow suit.⁵

¶7 Alice, Liam, and their siblings were first separated from their biological parents in August 2017.⁶ Due to the difficulty of finding a single placement that could accommodate seven children, who at the time ranged in age from twelve years to six months, the children were placed with three separate foster families. Alice and Liam were placed together, separate from their siblings.

¶8 Approximately ten months later, in May 2018, DCFS began returning the siblings to their biological parents for a trial home placement. By late June, all the siblings were living with their biological parents, and in early July they were joined by Alice and Liam. The juvenile court restored custody to the biological parents in January 2019 with continued support and supervision by DCFS. That arrangement was short-lived; by May, DCFS petitioned to remove the children again, citing new concerns.

¶9 Once again, DCFS was unable to find a foster family that could care for all seven children. Shortly after their removal, Alice and Liam were placed with the four youngest of the five older siblings. But by August, Alice and Liam were placed with a separate foster family, with whom they stayed until the termination trial. The siblings remained in other placements until October 2020, when they were placed with their grandparents.⁷

¶10 The process by which the siblings were placed with the grandparents warrants further examination. The biological parents first raised the possibility of placing the children with the grandparents in July 2019. Because the grandparents live in New Mexico. placing the children with them required compliance with the Interstate Compact on Placement of Children (ICPC).⁸ The ICPC does not control where children are placed; that decision is left to the juvenile courts. In this context, the ICPC is simply a standardized way for juvenile courts to determine whether children from one state can be safely placed with a family in another state.⁹

¶11 The juvenile court orally ordered DCFS to begin the ICPC process in July 2019, when it first learned that the grandparents were willing to take the children. DCFS did not actually comply with that order until three months later, in October 2019.¹⁰ The ICPC process was not completed until October 2020, but the juvenile court stated that this year-long duration was "not unusual."

¶12 By the time the ICPC report was returned, the parties were preparing for the termination trial. DCFS filed a petition seeking the termination of the biological parents’ rights to all seven children in November 2019. After several delays and attempts at mediation, the trial was set for October 2020. The ICPC investigation approved the grandparents as a potential placement just before the trial began. With that information in hand, the parties agreed that it would be in the best interest of the siblings to be placed in the permanent guardianship of the grandparents. But the parties were unable to agree on the best placement for Alice and Liam, which meant that the testimony at trial was directed at that issue.¹¹

¶13 The final speedbump before the termination trial concerned who would represent the biological parents during that proceeding. Though the record is somewhat muddy on the issue, it appears that the biological parents attempted to change counsel shortly before the termination trial began, and in the ensuing confusion no attorney filed a witness list on the biological parents’ behalf. Given the delays that had already plagued the termination trial and the last-minute realization of this issue, the juvenile court refused to postpone the trial further. The biological parents were allowed to testify themselves and to call the grandparents as witnesses, but they were otherwise allowed to call only witnesses who were already on the list the State had submitted.

¶14 With this last obstacle overcome, the termination trial began. The State’s primary witnesses were Alice and Liam’s therapists and caseworkers. These witnesses uniformly testified that Alice and Liam had become strongly attached to their foster family and that the foster family was a healthy and supportive placement for them. One caseworker noted that just a month after they were initially placed with this foster family, both Alice and Liam had begun referring to their foster parents as "Mom" and "Dad" and were "attached and bonded" to the foster parents’ other children. One of the therapists testified that Alice and Liam’s connection with their foster family was "the most secure attachment [the...