2022 UT App 116

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF J.J.W.,

A PERSON UNDER EIGHTEEN YEARS OF AGE.

M.E.S. AND D.C.S.,

Appellees,

v.

J.V.W.,

Appellant.

Opinion

No. 20210706-CA

Filed October 14, 2022

Eighth District Court, Vernal Department

The Honorable Samuel P. Chiara

No. 163800064

Alexandra Mareschal, Attorney for Appellant

John D. Hancock, Attorney for Appellees

JUDGE RYAN M. HARRIS authored this Opinion, in which 

JUDGES MICHELE M. CHRISTIANSEN FORSTER and DAVID N.

MORTENSEN concurred.

HARRIS, Judge:

¶1 J.J.W.’s (Child) maternal grandmother (Grandmother) and 

her husband filed a petition for adoption of Child, along with a 

petition seeking the termination of the parental rights of child’s 

father, J.V.W (Father). After a bench trial, the district court found 

that multiple statutory grounds for termination were present, and 

that it was in Child’s best interest for Father’s rights to be 

terminated. Father now appeals the court’s best-interest 

determination, asserting that the court’s analysis was, at a 

minimum, incomplete, because the court did not adequately 

consider other possible options short of termination. We agree 
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with Father, and therefore vacate the court’s termination order 

and remand for further proceedings consistent with this opinion. 

BACKGROUND

¶2 Child—who was born in 2011—lived with his mother 

(Mother), his half-brother (Brother, who was Mother’s child from 

a previous relationship), and Father in Vernal, Utah without 

relevant incident until 2016. By that point, Father and Mother—

who both had a history of involvement with illegal drug use—had 

relapsed, and they made the voluntary decision to have both boys 

(collectively, the Children) go and live with Grandmother while 

they made an effort to get clean. They made this decision, in part, 

because they preferred to make their own choice regarding 

placement of the Children, and because they wished to avoid 

involving the state’s Division of Child and Family Services, which

they feared might separate the Children. They agreed to the entry 

of a court order placing the Children in the guardianship of 

Grandmother and a maternal uncle (Uncle). The guardianship 

order gave Father and Mother the right to three hours of parenttime each week. The general idea behind the guardianship—

apparently shared by all involved at the time—was that the 

Children would be returned to Father and Mother if they were 

able to get clean. Indeed, Mother stated that, in her view, “the 

guardianship was more of a safety net” in case she and Father

relapsed again.

¶3 Father and Mother made genuine efforts to improve their 

situation and, just a few months later, toward the end of 2016, 

Grandmother returned the Children to Father and Mother. For 

about the next year, the Children lived with Father and Mother 

without apparent incident.

¶4 Toward the end of 2017, however, Father and Mother 

relapsed again, and this led to problems in the home. For instance, 
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living conditions in the home had become substandard—the 

district court later found, in an unchallenged finding, that “the 

home was in [an] uninhabitable condition”—and the Children 

were missing a lot of school. On January 1, 2018, the Children 

returned to Grandmother’s care, with the previous guardianship 

arrangement still in place. Father believed that, if he and Mother 

“could get some clean time, [they] would get the [C]hildren back” 

as they had before.

¶5 In 2018, shortly after the Children went to live with 

Grandmother for the second time, Father was charged with drug 

crimes and spent several months incarcerated. After his release, 

Father entered a sixty-day inpatient drug rehabilitation program

in the Salt Lake area. After that, Father spent four months in “day 

treatment,” during which time he spent some six hours per day in 

a combination of drug treatment programs and therapy. He then 

spent another few months in a nearby “sober living” situation, 

which included “aftercare” sessions with his treatment provider.

He “coined out of all three” programs, meaning that he 

successfully completed them at the “highest” level; indeed, the 

district court later found that Father had “graduated with high 

honors from his drug treatment programs.” He was also released 

from court-supervised probation some two years early, because 

the judge overseeing his criminal case recognized that Father had 

“satisfactorily complied with the conditions of” his probation.

¶6 During this time, however, Father had no contact—even 

telephonic or written contact—with Child at all. And Father did 

not attempt to make any financial contribution toward Child’s 

care and well-being. At one point during his therapeutic process, 

Father reached out to Grandmother via text message to “let [her] 

know where [he] was in [his] therapy,” but received no reply.

¶7 In February 2020, after completing his drug treatment 

programs, Father moved back to Vernal because he “wanted to be 

closer to where the kids were.” At this point, Father was 
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apparently clean and drug-free, but was still working on 

obtaining a job and permanent housing. He reached out to 

Grandmother, in an attempt to start the process of reunifying with 

Child, but Grandmother resisted these efforts, telling him that 

“nothing was going to change” and that he was not allowed to see 

or even send gifts to the Children. Grandmother eventually 

stopped responding to Father’s messages. 

¶8 In August 2020, Grandmother and her husband

(Grandparents) filed a petition to terminate all parents’ rights to 

the Children, including—as relevant to this appeal—Father’s 

rights with regard to Child.1 Soon after receiving notice of the 

petition, Father moved to intervene in the case, and in addition 

filed a motion seeking to assert his three-hour-per-week parenttime that the 2016 guardianship agreement allowed. The court 

granted Father’s motion to intervene but, upon Grandparents’ 

request, deferred the hearing on Father’s motion for parent-time

and decided to combine it with the termination trial. As a result, 

Father was not afforded any parent-time during the pendency of 

the case, and by the time of trial he had not seen Child for over 

three years (since January 2018).

¶9 The district court held a one-day trial in August 2021 to 

consider Grandparents’ petition. At trial, Grandparents testified 

and presented testimony from Uncle, Uncle’s wife, and Father. In 

addition to presenting his own testimony, Father called Mother as 

a witness, as well as his own mother; he also attempted to call his 

current girlfriend, with whom he was living at the time of trial,

but the court refused to allow her to testify because Father failed 

to list her in his pretrial disclosures.

1. Specifically, the petition sought to terminate Mother’s rights to 

both Children, Father’s rights to Child, and also the rights of 

Brother’s father to Brother.
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¶10 Grandmother testified that she considers the Children to 

be her own, believes they have a strong sibling bond, and feels 

that adoption is in their best interest because they “need and 

deserve [the] stability of a good home.” Grandmother described 

the developmental delays Child was experiencing when he first 

came to live with her, explaining how he had trouble regulating 

his emotions and using his motor skills. She testified about how 

she is still working with Child to improve his motor skills by 

making him practice his handwriting and by playing Legos with 

him. And she testified that Child had never indicated any desire 

to have contact with Father and that whenever the possibility is 

mentioned “[h]e withdraws into himself,” “rubs his hands 

together in a nervous motion,” and “just kind of shuts down.”

¶11 Grandmother’s husband testified that he and 

Grandmother were financially able to provide for the Children

and that the boys shared a close sibling bond. On crossexamination, he stated that he was open to letting Child see 

Mother and Father even if the adoption were approved, but also 

offered his view that it was in Child’s best interest for Child “to 

stay at my place” rather than “bounce back and forth between” 

Grandparents’ custody and his parents’ custody. 

¶12 Uncle, the co-guardian, then testified about the instances in 

which he and his wife picked up the Children from their home 

after the two relapses. He recalled that, during the 2016 removal, 

there was a “stench” in the house that made him want to vomit, 

and he described the situation as “wrecked squalor.” He also 

recalled that, during the 2018 removal, there were mountains of 

moldy laundry and giant water stains on the laundry room floor, 

broken glass and some sort of oily liquid on the kitchen floor, and 

a sink overflowing with dishes and rotten food. He testified that, 

despite snow on the ground, the Children came outside in sandals 

with no coats. Uncle explained that he currently lives next door 

to, and shares a yard with, Grandparents, and that his children

are more like siblings than cousins to Child. He also testified that 
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20210706-CA 6 2022 UT App 116

Child is actively involved in hockey and has thrived in 

Grandparents’ care. Uncle’s wife corroborated Uncle’s testimony 

about the poor condition of the house during both pickups.

¶13 At the close of the evidentiary presentation, the district 

court made an oral ruling terminating Father’s parental rights.2

The court made extensive findings—generally not challenged 

here—that at least two statutory grounds for termination existed: 

abandonment and past neglect. In particular, the court found that 

Father had abandoned Child by failing to make sufficient efforts 

to communicate with him from January 2018 until at least August 

2020. See Utah Code Ann. § 80-4-302(1)(b)–(c) (LexisNexis Supp. 

2022) (stating that a parent’s failure to communicate with a child 

“by mail, telephone, or otherwise for six months” constitutes 

“prima facie evidence of abandonment”). The court explained 

that abandonment also includes the failure “to show the normal 

interests of a natural parent without just cause,” and concluded 

that Father’s failure to provide for Child “emotionally [and]

financially” and his lack of “attempts to communicate with 

[Child] for such a long period of time” constituted clear evidence 

of abandonment. The court also discussed Father’s history of 

illegal drug use, and noted that Father’s “continuous failure . . . 

since 2016 to provide [Child] with adequate food, clothing, 

shelter, and education” meant that Father had, during his 

relapses, been “unfit” and had “neglected [Child].”

¶14 After determining that statutory grounds for termination 

were present, the court turned to the question of whether 

termination of Father’s parental rights was in Child’s best interest. 

On this score, the court’s analysis was not as extensive. During its 

2. The court also terminated Mother’s parental rights to both 

Children, as well as Brother’s father’s rights to Brother. Neither 

Mother nor Brother’s father appeals the court’s termination order, 

and therefore the court’s termination orders as to those other 

individuals are not at issue in this appeal. 
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20210706-CA 7 2022 UT App 116

oral ruling, the court commented that the Children “were in really 

bad shape” when they came to live with Grandmother, and noted 

that “they are now in good condition.” The court offered “kudos” 

to Father “for the incredible amount of effort” he had made “to 

try and sort things out,” but noted that Father had been clean once 

before “for a period of five years” (from 2011 through 2016) and 

yet had nevertheless later “relapsed.” The court offered its view 

that “the biggest risk” in the case “would be that I flip-flop their 

current custody, that I create a situation where they eventually go 

back into the custody of these parents, and then they end up being 

neglected and abused again.” The court concluded that the 

Children “are in a safe home where they are healthy and well 

cared for,” and that it is “in their best interest to not be exposed to 

the abuse and neglect that they faced several years ago.” 

¶15 The court also determined that “termination of parental 

rights [was] strictly necessary,” stating that “the reason that it’s 

strictly necessary is that, if I don’t terminate the parental rights in 

this case, then the adoption cannot go forward. And the adoption 

is in the best interest of the children . . . so that they can have 

permanency in their life.” The court commented that the 

“stability” of Father’s living situation was “questionable” because 

“he’s not even paying rent in the home that he lives in right now” 

and that “[h]e has no rights to that home” because “he’s not 

married to the person that he’s with and so I don’t know how 

stable that relationship is.” 

¶16 In its written ruling, which followed the oral ruling, the 

court made a factual finding—somewhat at odds with its oral 

ruling3

—that Father’s “situation is stable and because of his living 

situation he is not required to pay rent.” And the court’s best3. “Where a court’s oral ruling differs from a final written order, 

the latter controls.” Haskell v. Wakefield & Assocs. Inc., 2021 UT App 

123, ¶ 19, 500 P.3d 950 (quotation simplified).
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20210706-CA 8 2022 UT App 116

interest analysis consisted of a single paragraph, set forth here in 

its entirety:

The Court finds that the [C]hildren were in really 

bad shape in 2016 before [Grandparents] assumed 

care of the [C]hildren. The Court finds that the 

[C]hildren were again in really bad shape in 2018 

before [Grandparents] assumed care of the 

[C]hildren for the second time. The [C]hildren are 

now happy, well adjusted, well cared for and their 

needs are being met. The biggest risk to [the 

Children] is if the Court make[s] a decision that puts 

the [C]hildren at risk of going through what they 

have gone through again. The Court concludes that 

it is in the [C]hildren’s best interest that the parental 

rights of the natural parents be terminated. The 

termination of the parental rights is strictly 

necessary and it is in the best interests of the 

[C]hildren that they be adopted by [Grandparents]. 

If the Court does not terminate parental rights the 

adoption cannot occur. The Court will not create a 

situation where the [C]hildren may be bounced 

back and forth between different homes.

ISSUE AND STANDARD OF REVIEW

¶17 Father appeals the district court’s order terminating his 

parental rights, but does not challenge the court’s determination 

that statutory grounds for termination exist here. Instead, Father 

limits his challenge to the court’s best-interest analysis. In 

particular, he takes issue with the court’s conclusion that 

termination of his parental rights was “strictly necessary” to 

further Child’s best interest, and with the court’s apparent failure 

to assess whether a permanent guardianship with Grandparents 

would serve Child’s best interest as well as adoption would. 
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20210706-CA 9 2022 UT App 116

¶18 We review deferentially a lower court’s best-interest 

determination, and will overturn it “only if it either failed to 

consider all of the facts or considered all of the facts and its 

decision was nonetheless against the clear weight of the 

evidence.” In re E.R., 2021 UT 36, ¶ 31, 496 P.3d 58 (quotation 

simplified). But we do not afford “a high degree of deference” to 

such determinations; rather, we simply apply “the same level of 

deference given to all lower court findings of fact and ‘fact-like’ 

determinations of mixed questions,” id. ¶¶ 29, 30, and follow the 

“clear and convincing standard of proof” that is the relevant 

evidentiary standard in termination of parental rights cases, see In 

re G.D., 2021 UT 19, ¶ 73, 491 P.3d 867. 

ANALYSIS

I. Preservation

¶19 Before addressing the merits of Father’s challenge to the 

district court’s best-interest analysis, we must consider 

Grandparents’ assertion that Father failed to adequately preserve 

for appellate review the issue of whether a permanent 

guardianship arrangement would serve Child’s best interest at 

least as well as adoption would. In particular, Grandparents point 

out that Father did not make a specific request for the court to 

consider permanent guardianship as an alternative option. We 

acknowledge that it would have perhaps been better if Father had 

more expressly asked the court to consider particular enumerated

options short of termination, and we agree with Grandparents 

that, in some instances (e.g., where the existence of a particular 

option would not be readily apparent to the court), a parent may

need to expressly ask a trial court to consider a specific nontermination option in order to properly preserve the right to 

argue, on appeal, that the court did not adequately consider that 

option. But on the facts presented here, we find Grandparents’ 

preservation arguments unpersuasive.
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20210706-CA 10 2022 UT App 116

¶20 As an initial matter, it is important to remember that 

Grandparents—as the petitioners—bear the burden of proof on all 

elements of their termination request, including the best-interest 

question. See In re G.D., 2021 UT 19, ¶ 43, 491 P.3d 867 (stating that 

“petitioners in termination proceedings must prove termination 

is warranted”). In this context, Grandparents bear the burden of—

among other things—demonstrating that termination of Father’s 

parental rights was strictly necessary to serve Child’s best interest. 

And as part of that showing, Grandparents must demonstrate that 

no other option short of termination would serve Child’s best 

interest as well as termination would. See In re B.T.B., 2020 UT 60, 

¶ 66, 472 P.3d 827 (“If the child can be equally protected and 

benefited by an option other than termination, termination is not 

strictly necessary.”). 

¶21 Moreover, in assessing best interest, a court is obligated to 

“consider whether other less-permanent arrangements might 

serve the child’s needs just as well” as termination would. Id. ¶ 67 

(quotation simplified). As we discuss more fully below, courts 

that order termination of parental rights without appropriately 

exploring “feasible alternatives to termination” have not properly 

applied the second part of the two-part termination test. See In re 

H.F., 2019 UT App 204, ¶ 17, 455 P.3d 1098 (reversing and 

remanding a juvenile court’s termination order because, among 

other things, “the court’s determination that termination was 

strictly necessary was not supported by an appropriate 

exploration of feasible alternatives to termination”). 

¶22 In this case, the court was—or, at a minimum, certainly 

should have been—aware of the existence of a viable alternative 

guardianship option: after all, Child had been living with 

Grandmother pursuant to a court-ordered guardianship 

arrangement off and on since 2016. At the time of trial, a 

guardianship arrangement was the status quo; indeed, Father had 

filed a motion—still pending as of the time of trial—seeking to 

enforce the parent-time provisions of the court’s guardianship 
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20210706-CA 11 2022 UT App 116

order. In this situation, for Grandparents’ petition to succeed, they

needed to persuade the court to alter that status quo, upset the 

guardianship arrangement that was then in place, terminate the 

parents’ rights, and facilitate an adoption. Any grant of that

petition would therefore have to be accompanied by at least an 

implicit rejection of a guardianship alternative. 

¶23 Under these circumstances, the question of whether a 

permanent guardianship arrangement with Grandparents might

serve Child’s best interest as well as adoption was necessarily 

presented to the court. See In re D.B., 2012 UT 65, ¶ 17, 289 P.3d 

459 (stating that “an issue is preserved for appeal when it has been 

presented to the court in such a way that the court has an 

opportunity to rule on it” (quotation simplified)). On these facts, 

we discern no preservation infirmity, and therefore do not view 

this as an appropriate case for exercise of our discretionary 

preservation requirement. See Fort Pierce Indus. Park Phases II, III, 

& IV Owners Ass’n v. Shakespeare, 2016 UT 28, ¶ 13, 379 P.3d 1218 

(stating that “our preservation requirement is self-imposed and is 

therefore one of prudence rather than jurisdiction,” and that 

appellate courts “exercise wide discretion when deciding whether

to entertain or reject matters that are first raised on appeal” 

(quotation simplified)). 

II. Best Interest and Strict Necessity

¶24 Next, we proceed to address the merits of Father’s 

challenge to the district court’s termination order. Before 

terminating a parent’s rights, a court must be satisfied that both 

parts of a two-part test are met. First, the court must find that one 

or more statutory grounds for termination are present. See Utah 

Code Ann. § 80-4-301 (LexisNexis Supp. 2022). In this case, the 

court found that at least two such statutory grounds were 

present—abandonment and past neglect—and Father does not 

challenge the court’s findings in that regard. 
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20210706-CA 12 2022 UT App 116

¶25 But Father does challenge the court’s determination with 

regard to the second part of the test: that termination of his 

parental rights was in Child’s best interest. See In re B.T.B., 2020 

UT 60, ¶¶ 19–20, 472 P.3d 827. Specifically, Father challenges that 

determination as being, at a minimum, incomplete, asserting that 

the district court did not adequately explore potential options 

short of termination that might serve Child’s best interest just as 

well as termination would. On this point, we agree with Father. 

¶26 The best-interest inquiry is “wide-ranging” and “asks a 

court to weigh the entirety of the circumstances” of a child’s 

situation, including “the physical, intellectual, social, moral, and 

educational training and general welfare and happiness of the 

child.” See In re J.M., 2020 UT App 52, ¶¶ 35, 37, 463 P.3d 66 

(quotation simplified); see also In re H.F., 2019 UT App 204, ¶ 14, 

455 P.3d 1098 (“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)).

¶27 Our legislature has provided two related pieces of 

important guidance on the best-interest question. See In re A.H., 

2022 UT App 114, ¶¶ 35–36. First, it has expressed a strong 

preference for families to remain together, stating that “[i]t is in 

the best interest and welfare of a child to be raised under the care 

and supervision of the child’s natural parents” and that “[a] 

child’s need for a normal family life in a permanent home, and for 

positive, nurturing family relationships is usually best met by the 

child’s natural parents.” See Utah Code Ann. § 80-4-104(8) 

(LexisNexis Supp. 2022). 

¶28 Second, our legislature has mandated that termination of 

parental rights is permissible only when such termination is 

“strictly necessary.” See id. § 80-4-301(1). Our supreme court has 

interpreted this statutory requirement to mean that “termination 

must be strictly necessary to promote the child’s best interest.” See

In re B.T.B., 2020 UT 60, ¶ 60. Indeed, a court’s inquiry into the 
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20210706-CA 13 2022 UT App 116

strict necessity of termination should take place as part of the bestinterest inquiry that comprises the second part of the termination 

test. See id. ¶ 76 (stating that, “as part of [the best-interest inquiry], 

a court must specifically address whether termination is strictly 

necessary to promote the child’s welfare and best interest”). 

¶29 Our legislature further requires courts, when examining 

the necessity of termination, to consider whether “sufficient 

efforts were dedicated to reunification” of the family, and 

whether “the efforts to place the child with kin who have, or are 

willing to come forward to care for the child, were given due 

weight.” See Utah Code Ann. § 80-4-104(12)(b)(i)–(ii). And our 

supreme court, interpreting this requirement, has made clear that 

this part of the inquiry also requires courts to 

explore whether 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. In some cases, 

alternatives will be few and unsatisfactory, and 

termination of the parent’s rights will be the option 

that is in the child’s best interest. But in other cases, 

courts should consider whether other lesspermanent arrangements might serve the child’s 

needs just as well.

In re B.T.B., 2020 UT 60, ¶ 67 (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 “[i]f the child can be equally 

protected and benefited by an option other than termination, 

termination is not strictly necessary.” Id. ¶ 66 (quotation 

simplified); see also In re B.T.B., 2018 UT App 157, ¶ 55, 436 P.3d 

206 (stating that “if there is a practical way to keep parents 

involved in the children’s lives that is not contrary to the 

children’s best interests, a court should seriously consider such an 
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20210706-CA 14 2022 UT App 116

option”), aff’d, 2020 UT 60. As noted, courts that order termination 

of parental rights without appropriately exploring “feasible 

alternatives to termination” have failed to properly apply the 

second part of the test. See In re H.F., 2019 UT App 204, ¶ 17. 

¶30 In making its best-interest determination, the court did 

discuss—at least during its oral ruling—one potential alternative 

to termination: returning Child to Father’s custody. In its oral 

ruling, the court was complimentary of Father’s efforts to 

overcome his substance use problems, but nevertheless offered its 

view that Father’s current living situation was too unstable, and 

the risk of Father experiencing a relapse too high, to warrant 

returning Child to Father’s care. In its written ruling, however, the 

court made a contradictory finding regarding Father’s stability—

finding that his “situation [was] stable”—but otherwise offered 

no specific discussion, findings, or conclusions about Father’s 

current ability to care for Child. This is problematic. A parent who 

has, in the past, neglected or abandoned his or her child has 

certainly committed actions that constitute statutory grounds for 

termination. But it no longer follows “almost automatically” 

therefrom that it is in the best interest of the child to terminate the 

parent’s rights. See In re B.T.B., 2020 UT 60, ¶ 80 (“The court of 

appeals did not err in disavowing the almost automatically 

language in its case law.”). Especially in cases (like this one) 

initiated by private petition, it is important for courts to carefully 

assess a parent’s efforts to improve and, if the court remains 

unpersuaded that the parent’s situation has sufficiently changed

for the better, to specifically set forth reasons why it remains 

unpersuaded, in addition to reasons—which may be related—

why it is in the child’s best interest not to be returned to the 

parent. See id. ¶ 71. While there may be a basis in this record for 

the district court to have rejected Father’s position with regard to 

this alternative, see In re J.M., 2020 UT App 52, ¶¶ 37–42, 463 P.3d 

66 (upholding a court’s refusal to return custody to a parent under 

similar circumstances), the court here—by focusing largely on 

Father’s past actions rather than the current situation, and then by 
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making contradictory findings about Father’s current situation—

did not adequately explain itself. 

¶31 Even more problematic, however, is the court’s failure to 

expressly consider or even discuss—either in its oral or written 

ruling—the other obvious option: entering a permanent custody 

and guardianship order in favor of Grandparents.4 This option 

would have simply continued some version of the status quo then 

in place. Under this option, Grandmother (with, perhaps, her 

husband or Uncle as co-guardian) would continue to serve as 

Child’s legal guardian and Child would continue to live under her

care, but Father could—pursuant to the terms of the guardianship 

order, as determined and supervised by the court—retain the 

right to maintain a relationship with Child, including perhaps 

exercise of an appropriate amount of parent-time. This option has 

the benefit of preserving the familial relationships, as our 

legislature has commanded courts to do “wherever possible.” See

Utah Code Ann. § 80-4-104(12) (stating that “[w]herever possible, 

family life should be strengthened and preserved”). And this 

option does have certain hallmarks of permanency; after all, a 

parent whose child has been placed in a permanent guardianship 

arrangement in a child welfare proceeding has no independent 

right to petition to change or dissolve the guardianship. See id. 

§ 78A-6-357(3)(d) (LexisNexis Supp. 2022). Only the guardian has 

4. Grandparents argue that the district court did consider this 

alternative, at least implicitly. They point out that the court 

rejected “[a]ny scenario that included a possibility that the 

[C]hildren be returned” to Father, a conclusion they interpret as 

implicitly rejecting the guardianship option. As noted in our 

preservation analysis, we agree with Grandparents that the court 

necessarily had to at least implicitly reject the status quo 

guardianship option. But there is no getting around the fact that 

the district court did not ever expressly consider or discuss this 

option at all, let alone offer any reasons for rejecting it. And it is 

this lack of express reasoning that we consider problematic. 
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that right. Id. And we are aware of no evidence in the record that 

would lead us to believe that Grandparents would be particularly 

susceptible to undue influence from Father as concerns seeking a 

change or dissolution of the guardianship. 

¶32 As noted above, the court by necessity had to (at least 

implicitly) reject this option in order to grant Grandparents’ 

petition for adoption and termination. But it made no effort to 

explain why it rejected that option, or why it might have believed 

that termination better served Child’s best interest than 

guardianship did. And our supreme court requires courts to 

provide such an explanation “on the record.” See In re B.T.B., 2020 

UT 60, ¶ 74 (stating that the “strictly necessary” statutory 

language “requires the court to find, on the record, that no other 

option can achieve the same welfare and best interest for the 

child” as termination can). And the “strictly necessary”

requirement is especially important here, both because private 

termination cases “lack many of the parental protections that are 

built into the process when the State seeks termination of parental 

rights,” and because “the best interest analysis may be the only 

real opportunity for the court to consider whether something 

short of termination would serve the child’s welfare and best 

interest.” See id. ¶ 71. 

¶33 Grandparents defend the district court’s ruling by pointing 

to the court’s comments regarding stability. As noted, the court 

determined that the Children need stability, offered its view (at 

least in its oral ruling) that Father’s living situation was unstable 

and that there continued to be a risk of drug relapse, and 

concluded that adoption was the option that provided the highest 

level of stability. In its written ruling, the court concluded that 

termination was “strictly necessary” because “[i]f the Court does 

not terminate parental rights the adoption cannot occur.” But in 

this case, where another valid and available option exists, this 

reasoning is insufficient. 
In re J.J.W.

20210706-CA 17 2022 UT App 116

¶34 Our supreme court has recently clarified that the mere fact 

that adoptions—as a category—provide more permanency and 

stability than guardianships do is not enough to satisfy the 

statutory “strictly necessary” standard. See In re J.A.L., 2022 UT 12, 

¶ 24, 506 P.3d 606. In that case, the court held that the lower court 

fell into legal error in concluding that [a 

guardianship option] would not provide the “same 

degree of permanency as an adoption.” That is not 

the question under our law. A permanent 

guardianship by definition does not offer the same 

degree of permanency as an adoption. And there is 

always some risk that the permanent guardianship 

could come to an end, or be affected by visitation by 

the parent. If these categorical concerns were 

enough, termination and adoption would be strictly 

necessary across the board. But such categorical 

analysis is not in line with the statutory standard.

Id. The court then noted that, as part of the “strictly necessary” 

analysis, a court “must assess whether a permanent guardianship 

can equally protect and benefit the children in the case before it.” 

Id. ¶ 25 (quotation simplified). The court made clear that the 

statutory requirements were “not met by the categorical concern 

that a permanent guardianship is not as stable or permanent as an 

adoption,” and instead “require[] analysis of the particularized 

circumstances of the case before the court.” Id.

¶35 The situation presented here is even more concerning than 

the situation presented in In re J.A.L. In that case, the court at least 

discussed the possibility of a guardianship, but dismissed that 

option because it was not as permanent as an adoption. See id.

¶ 23. As noted, our supreme court deemed that reasoning 

insufficient. But here, the court did not even discuss the 

possibility of imposing a permanent guardianship arrangement; 

instead, it made only general references to permanence and 
In re J.J.W.

20210706-CA 18 2022 UT App 116

stability. It made no effort to explain—even using the thin 

reasoning offered by the trial court in In re J.A.L.—why a 

guardianship option would not further Child’s best interest. 

These generalized comments are simply insufficient to explain 

why termination of Father’s parental rights is strictly necessary to 

further Child’s best interest. 

¶36 In order to adequately assess strict necessity in these 

circumstances, the district court must directly confront this 

question: why does adoption and termination of Father’s parental 

rights better further Child’s best interest than a permanent 

guardianship option? In particular, before it may terminate 

Father’s rights, the court must adequately explain why it is better 

for Child to have Father cut out of his life forever than to have 

Father remain involved in his life, perhaps with limited parenttime, pursuant to a guardianship arrangement.5 And the court 

should approach these questions “from the child’s point of view,”

rather than from Grandparents’ or Father’s point of view. See In re 

B.T.B., 2020 UT 60, ¶ 64; see also Utah Code Ann. § 80-4-301(1) 

(instructing that the “strictly necessary” inquiry should be 

undertaken “from the child’s point of view”). After all, courts may 

permanently separate families only if it is strictly necessary to do 

so; if both adoption and guardianship equally serve a child’s best 

interest, then termination of the parent’s rights is not strictly 

necessary. See In re B.T.B., 2020 UT 60, ¶ 66 (“If the child can be 

5. In this vein, the court should also consider the fact that 

Mother—despite the fact that her parental rights have been 

terminated in a ruling she does not appeal—will very likely have 

some role in the Children’s lives going forward, simply by virtue 

of her biological relation to Grandmother, while Father—if his 

rights are terminated—is unlikely to be afforded the same 

opportunity. Indeed, we suspect that these factual realities had 

something to do with the fact that Father (but not Mother) went 

to the effort and expense of filing an appeal. On remand, among 

other things, the court should consider and discuss these realities. 
In re J.J.W.

20210706-CA 19 2022 UT App 116

equally protected and benefited by an option other than 

termination, [then] termination is not strictly necessary.”); accord

In re A.H., 2022 UT App 114, ¶ 48. 

CONCLUSION

¶37 The district court fell into legal error when it failed to 

expressly consider other apparent reasonable options short of 

termination that might serve Child’s best interest just as well. In 

particular, the court erred by failing to explain, on the record, why 

a permanent custody and guardianship arrangement with 

Grandparents could not serve Child’s best interest, and why 

termination of Father’s parental rights—as opposed to imposition 

of a guardianship—was strictly necessary to further that interest. 

We therefore vacate the district court’s termination order and 

remand the case for a renewed best-interest analysis. 

¶38 In so doing, we offer two items of guidance that we hope 

will be helpful on remand. First, we emphasize that this is not a 

weight-of-the-evidence reversal, but simply a remand for 

completion of the analysis. Nothing in this opinion should be 

construed as this court having placed its thumb on the scale of 

how that analysis should come out, and we of course offer no 

opinion in that regard. Second, we emphasize—as we have 

before, see In re Z.C.W., 2021 UT App 98, ¶¶ 14–15, 500 P.3d 94—

that the best-interest analysis on remand should be conducted in 

present-tense fashion, as of the date of the hearing or trial, and 

should not only take into account the items discussed in this 

opinion but, in addition, should take into account, in some form, 

any material developments with regard to Child that have 

occurred since the last trial.