2024 UT App 34

THE UTAH COURT OF APPEALS

IN THE MATTER OF THE ADOPTION OF J.E., E.E., AND L.E.,

PERSONS UNDER EIGHTEEN YEARS OF AGE.

K.E.,

Appellant,

v.

K.M.L. AND L.L.L.,

Appellees.

Opinion

No. 20230162-CA

Filed March 14, 2024

Third District Court, West Jordan Department

The Honorable Matthew Bates

No. 222900154

Julie J. Nelson and Alexandra Mareschal,

Attorneys for Appellant

Bradley A. Schmidt, Attorney for Appellees

JUDGE DAVID N. MORTENSEN authored this Opinion, in which 

JUDGES RYAN D. TENNEY and JOHN D. LUTHY concurred.

MORTENSEN, Judge:

¶1 In connection with an adoption proceeding brought in 

district court, the rights of a biological father were terminated. The 

father now claims on appeal that the district court relied 

impermissibly on generalized concerns of his minor children’s

need for permanence and that our recent decision in In re L.L.B., 

2023 UT App 66, 532 P.3d 592, compels reversal here. We agree 

with the father and reverse.
In re J.E.

20230162-CA 2 2024 UT App 34

BACKGROUND

¶2 KML1 (Mother) and KE (Father) have two minor children,2

who are the subject of this appeal—EE, age sixteen, and LE, age 

thirteen. For much of the children’s lives, Father has been 

incarcerated. As relevant here, from 2013 to 2018, Father was 

incarcerated. During that period, his time with EE and LE

“consisted of, at most, a weekly visit” with them at the prison.

¶3 In 2018, Father was released from prison on parole. 

Sometime during this same period, Mother and Father divorced 

and Mother married LLL (Stepfather). According to Father, after 

the divorce, the parent-time arrangement allowed him visits 

every other weekend. But Father saw EE and LE only once in the 

summer of 2018. Beyond that visit, Father says he “tried to” 

exercise his parent-time four times, but that each time he went to 

Mother’s home for the exchange as required by the divorce 

decree, Stepfather told him the decree required Father to text 

Mother. Father disputes the texting requirement. The final time 

Father attempted to visit the children, he found that they had 

moved and the “house was empty.” Mother had not given him an 

updated address or contact information. Father notified the law 

enforcement officers whom Mother and Father used to 

communicate with one another. 

1. Regarding this opinion’s omission of periods following initials, 

see A.W. v. Marelli, 2024 UT App 8, ¶ 1 n.1. This practice is 

consistent with The Chicago Manual of Style, which states that if 

“an entire name is abbreviated, spaces and periods can usually be 

omitted.” The Chicago Manual of Style Online ¶ 10.12 (17th ed. 

2017).

2. A third child, JE, was initially a part of these proceedings but 

has since turned eighteen and is no longer included.
In re J.E.

20230162-CA 3 2024 UT App 34

¶4 In January 2020, Father returned to prison because of a 

parole violation, and he remained there until December of that 

same year. Following his release, he tried contacting Mother, but 

when he called the “last phone number [he] had with her[,] . . . 

there was nothing.” He asked his family to help him contact 

Mother, but they had no way to reach her either. Father returned 

to prison in November 2021 because of another parole violation. 

While incarcerated, he tried to call the children but still did not 

have updated contact information. Father says he also wrote 

letters for the children but did not send them because he did not 

have a current address for Mother.

¶5 In April 2022, Mother and Stepfather petitioned the district 

court for termination of Father’s parental rights and Stepfather’s 

adoption of the children. The court bifurcated the proceedings 

and, following a hearing in November 2022, determined that 

Father met the statutory ground of abandonment for termination 

of parental rights.

¶6 In January 2023, during a second evidentiary hearing, the 

district court determined that it was in the best interest of EE and 

LE to terminate Father’s parental rights. The court determined 

that the children presently had “no relationship” with Father. 

Both children testified that they had “no memory of him, and they 

would not recognize him if they saw him.” The court also 

determined that for the last four years, Stepfather had “assumed 

the role of natural father” to the children, including socializing 

with them, playing with them, attending their school and 

extracurricular activities, assisting with their schoolwork, and 

caring for them, such as by driving them places and making them

meals. Both EE and LE “testified to the strong emotional bond” 

they had with Stepfather and their desire to be adopted by him,

which the court gave some weight in consideration of their ages. 

The court also determined that the “destruction of the relationship 

between the children and [Father’s] extended family . . . [was] due 

to [Mother’s] failure to respond to efforts” made by the family to 
In re J.E.

20230162-CA 4 2024 UT App 34

see the children. The court determined that Mother was “not 

supportive of the relationship between the children and [Father’s] 

family.” During the hearing, Father requested reconsideration of 

the court’s abandonment finding. The court took new evidence on 

the issue but ultimately did not alter its finding and terminated 

Father’s parental rights.

¶7 In February 2023, the district court held a hearing 

concerning Stepfather’s adoption of EE and LE, during which 

Father asked the court to stay the adoption pending appeal. 

Following arguments from each party, the district court 

proceeded with the adoption, determining that it was “in the best 

interests of the [children] that [the] adoption go forward.”

¶8 Father appeals.

ISSUE AND STANDARDS OF REVIEW

¶9 On appeal, Father argues that the district court erred by 

deciding that termination of Father’s parental rights was in the 

best interest of EE and LE. “Whether a parent’s rights should be 

terminated presents a mixed question of law and fact.” In re B.R., 

2007 UT 82, ¶ 12, 171 P.3d 435. “A lower court’s best-interest 

ruling is reviewed deferentially,” but we do not limit our review 

to considering whether any relevant facts have been left out; we 

also “assess whether the court’s determination that the clear and 

convincing standard had been met goes against the clear weight 

of the evidence.” In re L.L.B., 2023 UT App 66, ¶ 16, 532 P.3d 592

(cleaned up). 

ANALYSIS

¶10 “The right of parents to raise their children is one of the 

most important rights any person enjoys.” In re D.S., 2023 UT App 

98, ¶ 16, 535 P.3d 843 (cleaned up), cert. granted, Jan. 25, 2024 (No. 
In re J.E.

20230162-CA 5 2024 UT App 34

20230877). Before terminating parental rights, a district court must 

find that (1) “one or more of the statutory grounds for termination 

are present” and (2) “termination of the parent’s rights is in the 

best interests of the child.” In re L.L.B., 2023 UT App 66, ¶ 17, 532 

P.3d 592 (cleaned up). A district court “must make both of these 

findings . . . by clear and convincing evidence and the burden of 

proof rests with the petitioner.” Id. (cleaned up). Father has not 

challenged the district court’s ruling that statutory grounds for 

termination existed, so we turn to the best-interest analysis.

¶11 Our supreme court recently determined that a “court must 

start the best interest analysis from the legislatively mandated 

position that wherever possible, family life should be 

strengthened and preserved.” In re B.T.B., 2020 UT 60, ¶ 66, 472 

P.3d 827 (cleaned up).3 Relying nearly entirely on In re L.L.B., 2023 

3. In the same case, our supreme court determined that a court 

may terminate parental rights only “when it concludes that a 

different option is in the child’s best interest and that termination 

is strictly necessary to facilitate that option.” In re B.T.B., 2020 UT 

60, ¶ 66, 472 P.3d 827 (emphasis added). The district court here 

made the legal determination that the legislature intended a 

strictly necessary requirement to apply to the Utah Adoption Act 

(UAA) for district courts. Yet, the court did not make any 

subsidiary findings or give reasoned analysis as to whether 

termination was strictly necessary here; instead, it simply noted 

in the order’s conclusion that it was strictly necessary to terminate 

Father’s rights to allow the adoption to proceed. Both parties 

make arguments on appeal whether the district court erred in this 

conclusion but neither addresses whether the strictly necessary 

requirement is even appropriate to apply.

The UAA applies to district courts and reads as follows: 

“The district court may terminate an individual’s parental rights 

in a child if . . . the individual’s parental rights are terminated on 

grounds described in Title 80, Chapter 4, Termination and 

(continued...)
In re J.E.

20230162-CA 6 2024 UT App 34

UT App 66, 532 P.3d 592, a recent decision from our court in which 

we reversed the termination of a father’s parental rights, Father 

argues that the court erred when it determined that termination 

and adoption was in the best interest of EE and LE. Father does 

not claim that the court’s findings were erroneous; instead, he 

asserts that the facts taken together do not support the court’s 

ruling. “The best-interest inquiry is intended as a holistic 

examination of all of the relevant circumstances that might affect 

a child’s situation.” Id. ¶ 21 (cleaned up); see also In re D.S., 2023 

UT App 98, ¶ 18 (“The best-interest inquiry is wide-ranging and 

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

Restoration of Parental Rights, and termination is in the best 

interests of the child.” Utah Code § 78B-6-112(5)(e). 

Comparatively, the Termination of Parental Rights Act 

applies to juvenile courts and reads as follows: “[I]f the juvenile 

court finds termination of parental rights, from the child’s point 

of view, is strictly necessary, the juvenile court may terminate all 

parental rights with respect to the parent if the juvenile court finds 

any one of the [listed grounds for termination].” Id. § 80-4-301(1) 

(emphasis added). 

The case in which our supreme court stated that the best 

interest of the child analysis includes the strictly necessary 

requirement was an appeal from juvenile court. See In re B.T.B., 

2020 UT 60, ¶ 1. The supreme court has not yet addressed whether 

this analysis also applies to appeals from a district court—

particularly given the absence of the “strictly necessary” language 

in the UAA.

Our court recently acknowledged, but did not answer, this 

same question in In re L.L.B. when it determined that it did not 

need to address the issue because “even without considering the 

strictly necessary part of the best-interest analysis . . . there [was]

not clear and convincing evidence supporting the district court’s 

conclusion that termination of Father’s parental rights was in [the 

child’s] best interest.” 2023 UT App 66, ¶ 18, 532 P.3d 592. We 

conclude the same and will not address the issue further.
In re J.E.

20230162-CA 7 2024 UT App 34

situation . . . .” (cleaned up)). A district court undertakes this 

analysis from the child’s perspective and must consider the 

child’s “physical, intellectual, social, moral, and educational 

training and general welfare and happiness.” In re L.L.B., 2023 UT 

App 66, ¶ 21 (cleaned up). To support his argument that the 

district court erred, Father argues that the “facts and legal analysis 

are almost identical” between his case and In re L.L.B. This is an 

overstatement of the cases’ factual parallels, and we are quick to 

point out where the two cases diverge; however, we still conclude 

that In re L.L.B. is factually similar enough to be helpful in 

reaching our ultimate conclusion that the district court did err. 

¶12 In In re L.L.B., like the situation in the case before us, the 

district court terminated the father’s rights in order to allow a 

stepfather to adopt a child. Id. ¶ 15. Our court reversed. Id. ¶ 35. 

¶13 In that case, less than a week after the birth of his child, the 

father left due to a drug relapse. Id. ¶ 2. Over the course of the 

next year, the father saw the child only twice. Id. A paternity 

agreement then granted the mother sole custody and awarded 

parent-time to the father. Id. ¶ 3. Three years later, the mother 

married the stepfather, with whom she and the child lived from 

that point on. Id. ¶ 4. For approximately five years, the father used

his parent-time, but then the parents got into an argument. Id. 

Around that same time, the father and child were in a fourwheeling accident, which the mother suspected had been caused 

by the father’s alcohol use. Id. In the months that followed, the 

father’s parent-time was supervised because the mother was 

concerned that he was using drugs and alcohol around the child. 

Id.

¶14 About two years later, the mother and stepfather filed a 

petition in district court for termination of the father’s parental 

rights and the stepfather’s adoption of the child. Id. ¶ 5. At trial, 

the mother testified that in the nearly two-year period leading up 

to the proceedings, the father had attempted to contact the child 
In re J.E.

20230162-CA 8 2024 UT App 34

only twice. Id. ¶ 7. She also testified that he was severely behind 

on child support payments, and he had never been involved in 

the child’s education. Id. The guardian ad litem testified that the 

child did not have a relationship with the father due to his absence 

and that, in contrast, the stepfather was “an excellent father” who 

had a “great bond” with the child. Id. ¶ 13 (cleaned up). Over the 

course of the case, the father relapsed, went to jail, and got sober.

Id. ¶ 12. At the time of trial, he had a job and was again paying 

child support. Id. 

¶15 The mother admitted that since filing the termination 

petition, she had not responded to the father’s requests to see the 

child. Id. ¶ 7. The father’s mother testified that she had tried “to 

stay in contact” with the child but had “difficulty getting 

responses” from the mother. Id. ¶ 9. After the termination petition 

had been filed, the father had seen the child once and had written 

letters to the mother, sent a gift, and emailed the child. Id. ¶ 11.

¶16 The district court concluded that the child deserved a 

“healthy, stable family relationship” with the stepfather, who was 

the child’s father figure, and that it was in the child’s best interest 

for the adoption to go forward. Id. ¶ 15 (cleaned up). Because the 

adoption could not occur without termination of the father’s 

parental rights, the district court determined “by clear and 

convincing evidence that it [was] ‘strictly necessary’” to terminate 

the father’s rights. Id. Our court reversed because the district 

court’s conclusion that termination was in the child’s best interest 

went “against the clear weight of the evidence.” Id. ¶ 34. We will 

discuss some of the applicable reasoning from In re L.L.B. in our 

ensuing analysis.

¶17 Here, the district court based its decision that termination 

was in the best interest of EE and LE primarily on two categorical 

concerns. First, the court stated that the children needed 

permanency by reasoning that it was “in the best interest of the 

children to have a normal family life and a permanent home and 
In re J.E.

20230162-CA 9 2024 UT App 34

to have a positive nurturing family relationship with a mother 

and father.” Second, the court reasoned that Father’s absence 

while incarcerated required termination of his rights because 

“weekly visits at the prison . . . are not an adequate substitute to a 

father in the home and do little to maintain the bond between 

parent and child.” But categorical concerns such as these are not 

enough to overcome the legislative presumption that it is in the 

best interest of children to be raised by their natural parents. We 

now address why these concerns are insufficient grounds to

terminate Father’s rights.

I. Permanency

¶18 “As our supreme court has explained, categorical concerns 

about the lack of permanence of an option other than adoption are 

not enough, otherwise termination and adoption would be strictly 

necessary across the board.” In re L.L.B., 2023 UT App 66, ¶ 23, 532 

P.3d 592 (cleaned up). Just as in In re L.L.B., while we understand 

the concern about what Stepfather’s legal rights may be regarding 

the children if Mother dies or Mother and Stepfather divorce,4 this 

concern is present in many termination cases, and it does not lead 

us to the conclusion here “that termination of a parent’s rights is 

in the [children’s] best interest.” Id. 

4. The legislature might wish to consider that our court frequently 

sees this issue raised by stepparents who are concerned over what 

their legal role will be in a child’s life if their spouse—the child’s 

natural parent—dies. A statute addresses this concern for 

grandparents, but no such legal protections exist for stepparents. 

See Utah Code § 30-5-2(4); see also In re S.T.T., 2006 UT 46, ¶ 30, 144 

P.3d 1083 (upholding the statute recognizing that the death of one 

parent creates potential conflict between the surviving parent and 

the “in-law” grandparents and, accordingly, providing “an 

avenue for grandparents and grandchildren to maintain their 

relationship” through visitation rights).
In re J.E.

20230162-CA 10 2024 UT App 34

¶19 Relatedly, Father argues that the district court erred 

because it did not find that “the present quality of the [c]hildren’s 

relationship with Stepfather would be changed by adoption.” We 

agree and see no evidence on the record that—excluding a 

tragedy like Mother’s death—the adoption will change the living 

situation or custody of the children. The absence of such a change 

“is a factor that may weigh against termination in some cases.” In

re B.T.B., 2018 UT App 157, ¶ 56, 436 P.3d 206 (cleaned up), aff’d, 

2020 UT 60, 472 P.3d 827. Just as in In re L.L.B., we see no findings 

from the district court that EE and LE’s “current living situation 

[is] not healthy and stable” or that their living situation will 

change in any way if Stepfather does not adopt them. See 2023 UT 

App 66, ¶ 27. Indeed, we see no evidence, or even an assertion, 

that Stepfather’s love, care, or attachment would change in the 

absence of an adoption decree.

¶20 Thus, the categorical concern of stability and permanency 

does not support the court’s decision to terminate Father’s 

parental rights.

II. Incarceration

¶21 Because Father has been in and out of prison for much of 

the children’s lives, the district court relied on the categorical 

concern of his incarceration to support its termination decision. 

While it is true that it is much harder for incarcerated parents to 

be engaged in their children’s lives, the legislature’s policy that 

we must begin with an assumption that it is in the best interest of 

children “to be raised under the care and supervision of [their]

natural parents” does not support a categorical rule that 

incarcerated parents’ rights should be terminated. In re D.S., 2023 

UT App 98, ¶ 18, 535 P.3d 843 (cleaned up), cert. granted, Jan. 25, 

2024 (No. 20230877). In In re D.S., our court recently reversed a 

juvenile court’s termination of parental rights in the case of a 

father who was incarcerated at the time. Id. ¶ 33. The father there 

expressed “a desire to have a stronger relationship” with his 
In re J.E.

20230162-CA 11 2024 UT App 34

children. Id. ¶ 11 (cleaned up). This court determined that “a 

parent’s desire to build and maintain—coupled with efforts to 

actually maintain—a meaningful relationship with a child is a 

factor that will often weigh in favor of . . . a determination that it 

is in the child’s best interest to keep the relationship intact.” Id. 

¶ 27. Our court also explained that the father’s desire to have 

visitation with his children upon his release should also be 

“viewed positively” in the best-interest inquiry. Id. 

¶22 Here, Father is currently incarcerated and has not, at the 

present, turned his life around like the father in In re L.L.B, 2023 

UT App 66, ¶ 30, 532 P.3d 592. However, Father has expressed 

that he misses the children and has a desire to “support them in 

their daily lives, their school, [and] their personal affairs.” Father 

said that he is “glad that they are living a decent” life, but he still 

wants to be a part of that life. We acknowledge and credit Father’s

desire to build a relationship with the children despite his 

incarceration. Additionally, from 2013 to 2018, Father interacted 

with the children in the only avenue available to him as an 

incarcerated parent—through “at most, a weekly visit” at the 

prison. And though these visits did not continue during his 

subsequent periods of incarceration, it was at this point that

Father had no means of contacting his children due to Mother’s 

actions.

¶23 Furthermore, there is no evidence that Father’s 

relationship with EE and LE is harmful to them—just as in In re 

L.L.B. where there was no finding that the father’s presence 

“affirmatively harmed” the child or that the father’s “attempts to 

exercise his parental rights” in any way “negatively affected or 

disrupted” the child’s life. 2023 UT App 66, ¶ 24; see also In re D.S., 

2023 UT App 98, ¶ 24 (reversing termination of an incarcerated 

father’s parental rights in part because there was “no indication 

that [the father’s] continuing relationship” with the children was 

“harmful to them, rather than merely perhaps inconvenient”). 

Here, neither party has raised any concerns about Father ever 
In re J.E.

20230162-CA 12 2024 UT App 34

posing a threat to or endangering the children. This is important. 

Even in In re L.L.B., though the father had turned his life around, 

there were instances in the past of concern for the child’s safety,

such as the four-wheeling accident and supervised visits over fear 

of the father’s substance abuse. See 2023 UT App 66, ¶ 4. We note 

that in In re L.L.B our court emphasized that courts must weigh 

parental conduct in the past against later conduct and that the 

father was a “presently fit and capable” parent. Id. ¶ 29 (cleaned 

up). We only point to this concern to emphasize that no such 

circumstance exists here.

¶24 Thus, not only is the district court’s reliance on the fact of 

Father’s incarceration unsupported in this case, but the creation 

of such a categorical rule goes against Utah’s statutes and caselaw.

III. Other Concerns

¶25 Mother and Stepfather, in an effort to distinguish In re 

L.L.B. from the present case, point to the fact that, unlike Father, 

the father in that case made “many” attempts to communicate 

with the children after his incarceration. 2023 UT App 66, ¶ 29, 

532 P.3d 592. However, Father’s argument is well-taken that the 

district court determined this lack of communication was “largely 

the result of Mother and Stepfather’s interference.” Mother 

moved the children without telling Father or providing any 

means of contacting them. This lack of communication should not 

be held wholly against Father as it was the result of Mother’s 

actions; to do so would certainly encourage other parents to 

prevent communication in an effort to similarly strengthen their 

cases for termination of parental rights.

¶26 Relatedly, any lack of relationship—or as the court put it 

“destruction” of the relationship—between the children and 

Father’s extended family was due to Mother’s lack of support and 

her “failure to respond to [the extended family’s] efforts . . . to see 

the children.” Mother’s failure to respond to these efforts should 

likewise not be held against Father.
In re J.E.

20230162-CA 13 2024 UT App 34

¶27 Thus, looking holistically at the evidence presented, as 

courts are required to do, see id. ¶ 21, we conclude that the 

evidence does not clearly and convincingly demonstrate that 

termination of Father’s parental rights was in EE’s and LE’s best 

interest. In our view, the primary bases for the district court’s 

decision were its categorical conclusions about the need for 

permanency and the insubstantial nature of a parent/child 

relationship when a parent is incarcerated. We view Utah 

precedent as precluding reliance on such categorical concerns. 

And we view the remainder of the district court’s findings to be 

insufficient to meet the required burden of proof once these bases 

are removed from the analysis. Given our legislature’s clear 

expression that, “as a matter of state policy, the default position is 

that it is in the best interest and welfare of a child to be raised 

under the care and supervision of the child’s natural parents,” id. 

¶ 31 (cleaned up), we must reverse.

¶28 The court’s order in the adoption decree relied on the 

termination of all Father’s “rights, duties and responsibilities, 

including residual parental rights.” Accordingly, with our 

reversal of the termination order, we also reverse the adoption 

decree. While this decision is final, it does not preclude the 

possibility of future termination and adoption proceedings if 

there is a material change in circumstances.

CONCLUSION

¶29 The district court’s conclusion that the termination of 

Father’s parental rights was in the best interest of EE and LE was 

against the clear weight of the evidence. As a consequence of this 

error, the court also erred when it granted Stepfather’s adoption 

of the children in reliance on termination of Father’s rights. We 

therefore reverse.