2015 UT App 66

_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF T.H., T.H.,

AND T.H., PERSONS UNDER EIGHTEEN YEARS OF AGE.

D.H.,

Respondent and Appellant,

v.

STATE OF UTAH,

Petitioner and Appellee.

Memorandum Decision

No. 20140265-CA

Filed March 19, 2015

Third District Juvenile Court, Salt Lake Department

The Honorable James R. Michie Jr.

No. 1086063, 1086064, 1086066

Richard K. Clark, Attorney for Appellant

Sean D. Reyes and John M. Peterson,

Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE STEPHEN L. ROTH authored this Memorandum Decision, in 

which JUDGES MICHELE M. CHRISTIANSEN and JOHN A. PEARCE 

concurred.

ROTH, Judge:

¶1 D.H. (Father) appeals from the juvenile court’s order 

terminating reunification services and awarding custody of his 

three minor children to their mother (Mother). Father challenges 

the sufficiency of the evidence to support that decision. We 
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conclude that the juvenile court’s findings are supported by the 

record, and we therefore affirm.

¶2 “[I]n order to overturn the juvenile court’s decision *on 

custody,] [t]he result must be against the clear weight of the 

evidence or leave the appellate court with a firm and definite 

conviction that a mistake has been made.” See In re B.R., 2007 UT 

82, ¶ 12, 171 P.3d 435 (third alteration in original) (citation and 

internal quotation marks omitted). In considering whether this 

standard has been satisfied, we “review the juvenile court’s 

factual findings based upon the clearly erroneous standard.” In 

re E.R., 2001 UT App 66, ¶ 11, 21 P.3d 680. We “may not engage 

in a reweighing of the evidence” but instead must only assess 

whether there is evidence that supports the juvenile court’s 

findings and conclusions. In re B.R., 2007 UT 82, ¶ 12.

¶3 This case originated in April 2013 from allegations of 

environmental neglect in the parents’ home. Based on Mother’s 

and Father’s admissions,1the juvenile court adjudicated the 

children neglected. Accordingly, the court entered an order for 

“[p]rotected supervision,” which is “a legal status created by 

court order following an adjudication on the ground of . . . 

neglect . . . , whereby the minor[s are] permitted to remain in the 

. . . home, and supervision and assistance to correct the . . . 

neglect . . . is provided” by the Division of Child and Family 

Services (DCFS). See Utah Code Ann. § 78A-6-105(33) 

(LexisNexis Supp. 2014).2 At a subsequent disposition hearing, 

 

1. Mother and Father admitted some of the allegations outright, 

and other allegations were deemed true pursuant to rule 34(e) of 

the Utah Rules of Juvenile Procedure, which treats “*a+llegations 

not specifically denied by a respondent *to+ be deemed true,” 

Utah R. Juv. P. 34(e).

2. Several provisions of the Juvenile Court Act, including this 

one, were amended in 2014. See, e.g., Utah Code Ann. § 78A-6-

(continued...)
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20140265-CA 3 2015 UT App 66

the juvenile court set a goal of keeping the children in the 

custody of both parents, provided that the parents could acquire 

and implement the skills necessary to keep the children safe in 

the home.3 DCFS created a child and family plan with specific 

services and responsibilities for each parent (the Service Plan). 

¶4 Both parents initially made efforts to comply with the 

Service Plan, but on September 11, 2013, Mother obtained a 

protective order against Father that required him to move out of 

the home. The protective order did not specifically preclude 

Father’s contact with the children but instead awarded 

temporary custody to Mother and “*d+efer*red+ to Juvenile 

Court” on parent-time. The juvenile court subsequently 

prohibited Father from exercising parent-time with the oldest 

child until a therapist authorized visitation to resume. It allowed 

Father to have parent-time with the younger two children but 

mandated that all visits be supervised by DCFS or another courtapproved agency. 

¶5 By late September 2013, police had arrested Father for 

violation of the protective order. Father was in and out of 

custody for protective order violations until at least January 

2014. During his incarceration, Father could not participate in 

the services offered through the Service Plan. Once he was 

released from custody in January 2014, he participated in regular 

 

(<continued)

105 amend. notes (LexisNexis Supp. 2014). The particular 

subsections that are relevant to this appeal have not been 

amended, so we cite the current version of the Utah Code 

Annotated for the reader’s convenience.

3. The juvenile court set a concurrent goal of adoption of the 

children. Because Mother adequately remedied the situation that 

caused the children’s neglect, this goal was not pursued and 

thus is not at issue in the appeal.
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20140265-CA 4 2015 UT App 66

supervised parent-time with the two youngest children and had 

a trial visit with the oldest child, after which the child expressed 

a desire to resume visitation. 

¶6 On March 19, 2014, the juvenile court conducted a review 

hearing. Counsel for each parent, the State, and the Guardian ad 

Litem (GAL) addressed the need for the juvenile court’s 

continued involvement with the family and the allocation of 

custody and parent-time going forward. The parties presented 

no testimony at the hearing. Mother, through her attorney, asked 

the juvenile court to close the case and award her sole legal and 

physical custody of the children. Counsel argued that such 

action was appropriate because Mother had remedied the 

environmental situation that resulted in the adjudication of 

neglect and she planned to continue participating in therapy and 

skills training through Hopeful Beginnings even after the case 

terminated. Mother’s attorney also reported that Mother was 

abiding by the protective order and cooperating with law 

enforcement’s ongoing investigation of criminal charges against 

Father for repeatedly violating the protective order. Mother’s 

attorney also stated that Mother had demonstrated a willingness 

to facilitate Father’s parent-time with the children. Father’s 

attorney responded that Father sought joint legal custody and 

that he wanted the court either to allow him unsupervised 

parent-time with the children according to the standard 

statutory schedule or to continue its jurisdiction over the family 

until such an order could be put in place. Father’s attorney 

reported that Father was complying with Adult Probation and 

Parole and was “extremely eager . . . to prove that he is a safe 

and stable father figure to these children.” The State 

recommended, based on the significant improvement of the 

children’s environment, that custody be given to Mother and the 

juvenile case be closed. The GAL recommended that the case be 

kept open so as to better assess Father’s ability to care for the 

children now that he had been released from jail. 
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¶7 After hearing all of the arguments and considering 

written reports prepared by DCFS and Hopeful Beginnings, the 

juvenile court agreed with Mother and the State that the case 

should be closed. Accordingly, it entered an order giving Mother 

sole legal and physical custody of the children, granting Mother 

discretion, with the input of Hopeful Beginnings, to determine 

how much visitation the children should have with Father, and

terminating both DCFS services and the juvenile court’s 

jurisdiction over the family. Father appeals, arguing that the 

evidence does not support the juvenile court’s decision.

¶8 Specifically, Father contends that there is insufficient 

evidence to support three findings: (1) “that it was not safe to 

return the minor children to the custody of Father”; (2) “that 

Father was not in substantial compliance with the Service Plan”; 

and (3) “that it would be in the children’s best interest that 

Father’s reunification services be terminated and that 

permanen[t] custody and guardianship be awarded to 

*Mother+.” It is not apparent from the record that the juvenile 

court actually made either of the first two findings. Instead, it 

appears that the juvenile court determined that it was in the 

children’s best interests to terminate the court’s jurisdiction and 

that doing so required that the children be placed in the legal 

custody of one parent. In light of that decision, the juvenile court 

awarded Mother “*s+ole legal custody” and “discretion to 

determine the visitation with the Father and children.”4 These 

decisions have support in the record.

¶9 Regarding the decision to terminate jurisdiction, the 

juvenile court stated that although “there *were+ several reasons 

why it would make sense to keep *the case+ open,” the court

would close the case because the parties had come under the 

 

4. Father has not challenged the juvenile court’s decision to 

award Mother “discretion to determine the visitation” rather 

than to set a parent-time schedule.
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20140265-CA 6 2015 UT App 66

jurisdiction of the court due to an environmental neglect issue 

that had since been resolved. The court further noted that 

custody had not been a concern until the issuance of the 

protective order because the court had initially ordered 

protective supervision, which permitted the children to remain 

in both their parents’ custody in the family home. And even with 

the issuance of the protective order and Father’s subsequent 

incarceration, the parties themselves, with the assistance of 

DCFS and Hopeful Beginnings, had been able to craft a parenttime arrangement that allowed the children a safe and healthy 

relationship with Father. Because the parents would continue to 

receive services from Hopeful Beginnings beyond the 

termination of the juvenile court case and because Mother had 

demonstrated her willingness to facilitate the children’s 

visitation with Father, the juvenile court concluded that the 

“limited scope” of the juvenile court jurisdiction did not permit 

it to keep the case open solely for the purpose of monitoring the 

“conflict between mom and dad.” Given the function of the 

juvenile court and the circumstances that caused it to become 

involved with this family, the court’s finding that it would be in 

the children’s best interests to terminate DCFS services and the 

court’s jurisdiction has a basis in the record.

¶10 The record also supports the court’s decision to choose 

Mother as the children’s custodian. Although Father apparently 

complied with DCFS as much as he could while out of custody 

and expressed a willingness and desire to parent the children, 

Father placed himself in a position, by repeatedly violating the 

protective order, where he could not fully participate in the 

Service Plan or care for the children. Because of his violations, 

Father was in and out of jail during at least five of the nine 

months that the Service Plan was in effect. While he was in jail, 

he did not participate in services or exercise parent-time with the 

children. And even when he was out of custody, Father had no 

parent-time with the oldest child, except for one trial visit, and

had only supervised visitation with the two younger children. 

Although by the time of the final review hearing Father had 
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20140265-CA 7 2015 UT App 66

resumed parent-time with all three children, it was still on the 

condition that the visits be supervised. Thus, the court had a 

basis for determining that it was not feasible for Father to have 

physical custody of the children.

¶11 With respect to the juvenile court’s decision to deny joint 

legal custody, it is important to recognize that Father is not 

allowed to have any contact with Mother until after the 

protective order expires in September 2015. This includes a 

prohibition on physical contact and also a ban on any form of 

communication, such as telephone, email, or mail contact. Thus, 

there was a basis for the juvenile court to determine that given 

the severe constraints on their ability to communicate, the 

parents could not jointly make the types of decisions that legal 

custody entails. See Utah Code Ann. § 78A-6-105(22) (LexisNexis 

Supp. 2014) (defining legal custody to include decisions 

regarding physical custody, education, and ordinary and 

emergency medical care of minor children). For these reasons, 

we conclude that there is no clear error in the court’s finding that 

it was in the children’s best interests for the court to award 

Mother sole legal custody.

¶12 Because “a foundation for the court’s decision exists in the 

evidence,” we affirm the juvenile court’s custody order. See In re 

B.R., 2007 UT 82, ¶ 12, 171 P.3d 435.