2022 UT App 68

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF K.S. AND C.S.,

PERSONS UNDER EIGHTEEN YEARS OF AGE.

C.G.S.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Amended Opinion1

No. 20210520-CA

Filed May 26, 2022

Fourth District Juvenile Court, Heber City Department

The Honorable Brent H. Bartholomew

No. 1041288

Sheleigh A. Harding and Beau Dean Blackley, 

Attorneys for Appellant

Sean D. Reyes, Carol L. Verdoia, and John M. 

Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE RYAN M. HARRIS authored this Opinion, in which 

JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN

FORSTER concurred.

HARRIS, Judge:

1. This Amended Opinion replaces the Opinion in Case No. 

20210520, issued on April 28, 2022. After our previous opinion 

issued, the Guardian ad Litem filed a petition for rehearing. We 

grant that petition, at least in part, and hereby amend footnote 12 

as requested. 
In re K.S.

20210520-CA 2 2022 UT App 68

¶1 After a bench trial, the juvenile court terminated C.G.S.’s 

(Father) parental rights regarding K.S. and C.S. (collectively, the 

Children). The court determined that multiple statutory grounds 

for termination were present and that it was in the Children’s best 

interest for Father’s rights to be terminated. Father now appeals, 

and we affirm. 

BACKGROUND

¶2 Father is the biological father of C.S. (born in 2009), and 

asserts that he is the biological father of K.S. (born in 2007), 

although his parental rights with regard to K.S. have never been

established. Both Children share the same mother (Mother).

¶3 The family’s first encounter with the child welfare system 

took place in 2010, when the Children were adjudicated as 

neglected by both Father and Mother—who were living together 

at the time—and were placed under the jurisdiction of the juvenile 

court. Over the next few months, the Division of Child and Family 

Services (DCFS) provided services to the family in an effort to 

address the concerns raised, and the case proceeded successfully, 

with the court terminating its jurisdiction in 2011. 

¶4 In or about 2011, Father relocated to Louisiana, while

Mother and the Children remained in Utah. At some point 

thereafter, Mother asked Father to take over caring for the 

Children for a while. The Children lived with Father in Louisiana 

for several years,

2 until Father relocated to Colorado in July 2016

to seek better work opportunities. At that point, Father asked 

Mother to take the Children back for the following school year; 

2. The juvenile court found that the Children were with Father in 

Louisiana “for two years,” but Father testified that the Children 

were with him in Louisiana for five years, from when the Children 

were “2 and 4 up until” they were “7 and 9 years old.” 
In re K.S.

20210520-CA 3 2022 UT App 68

his expectation was that they would return to his care after the 

school year ended. But over the ensuing months, communication 

between Father and Mother deteriorated; after that, Father had no 

in-person contact with the Children and only sporadic telephonic 

communication, and the Children did not ever return to Father’s 

care. Eventually, Father returned to Louisiana.

¶5 In January 2019, Mother contacted Father and asked him to 

come to Utah from Louisiana to pick up C.S., who was apparently 

exhibiting discipline problems. Father obliged, and arranged to 

rent a car and take time off work to drive to Utah. When he 

arrived, however, Mother refused to allow Father to take either of 

the Children, and he returned to Louisiana without them.

¶6 A few months later, in April 2019, DCFS filed a petition for 

protective supervision, alleging that Mother had “substance 

abuse issues” and asking the juvenile court to find the Children 

abused and neglected by Mother and dependent as to Father. At 

a pretrial hearing held soon after the filing of the petition, Father 

appeared telephonically and voluntarily waived his right to 

counsel. He entered a general denial as to any allegations against 

him and requested another hearing on the matter. The court 

scheduled another pretrial hearing for the following month, and 

explained to all parties, including Father, that they had the right 

to an attorney at future hearings, even if they could not afford one 

on their own; the court also provided all parties with instructions 

on how to apply for a court-appointed attorney. 

¶7 The following month, after Mother tested positive for 

illegal drugs and indicated her desire to enter an inpatient 

treatment program, DCFS filed a motion asking the court to 

authorize DCFS to remove the Children from Mother’s home. A 

shelter hearing was held on May 9, 2019 to address the motion;

Father again appeared telephonically and again waived his right 

to counsel. At the hearing, the court found that removal of the 

Children from Mother’s home was in their best interest, and 
In re K.S.

20210520-CA 4 2022 UT App 68

transferred temporary custody and guardianship to DCFS. After 

Father asked the court “about having the [C]hildren placed with 

him,” the court ordered DCFS to “investigate the safety and 

appropriateness of the non-custodial parent or relatives to assume 

custody” of the Children.

¶8 Upon Mother’s loss of custody, DCFS initially placed the 

Children with Mother’s ex-husband (Stepfather). It soon became 

apparent, however, that C.S. required more one-on-one attention 

than Stepfather could provide, so DCFS then placed C.S. with 

several foster families, each for a short time. Eventually, DCFS 

placed C.S. with his elementary school principal (Foster Mother)

and her husband (collectively, Foster Parents), who signed up to 

become foster parents specifically for C.S; he has lived with Foster 

Parents ever since. K.S. remained with Stepfather for a time, then 

was placed with a foster family for a short period after Stepfather 

relocated, but in 2020 she went to live with Stepfather in his new 

location. As of the time of trial, C.S. was living with Foster Parents

and K.S. was living with Stepfather; both Children were doing 

well in their respective placements and were proceeding toward 

adoption with those families.

¶9 On May 16, 2019, one week after the shelter hearing, the 

court held another hearing at which Father appeared 

telephonically. The court again explained to Father “the process 

to request a public defender,” and emailed Father the relevant 

request form, which Father acknowledged receiving. The court 

ordered Mother and Father to participate in a mediation in early 

June 2019, but Father did not appear at the scheduled mediation. 

The court also scheduled another hearing for June 20, 2019, but 

Father did not appear at that hearing either, despite the court’s 

attempt to reach him via telephone. At the June 20 hearing, the 

court adjudicated the Children neglected by Mother.

¶10 Based on Father’s failure to appear at both the mediation 

and the June 20 hearing, and based on the fact that he had failed 
In re K.S.

20210520-CA 5 2022 UT App 68

to answer the State’s petition, the State filed a motion asking the 

court to “enter a default” against Father. The court granted the 

motion and later entered a default judgment against Father.

3

¶11 The court held a review hearing in October 2019, and 

Father appeared by phone. During the hearing, Father “expressed 

a desire” to have the Children placed with him in Louisiana. 

Mother objected, asserting that the Children were “afraid” of 

3. In the default judgment, the court stated that the Children were 

“neglected . . . by reason of the fault or habits of” Father. In its 

petition, however, DCFS had alleged only that the Children were 

dependent as to Father. The default judgment should therefore 

have stated that the Children were dependent as to Father, not 

that Father neglected them. While unfortunate, this mistake does 

not appear to have had any specific negative consequences for 

Father; indeed, even a dependency finding would have been 

sufficient to bring the Children within the jurisdiction of the 

juvenile court. See Utah Code Ann. § 80-1-102(17) (LexisNexis 

Supp. 2021) (stating that a “dependent child” is “a child who is 

without proper care through no fault of the child’s parent,

guardian, or custodian”); id. § 80-3-405(2)(a)(i) (“The juvenile 

court may vest custody of an abused, neglected, or dependent 

minor in the division or any other appropriate person.”). And 

although the juvenile court later found, after the termination trial, 

that Father had neglected the Children, that finding was based on 

its determination that Father had abandoned the Children, and 

not on its earlier erroneous default judgment. 
In re K.S.

20210520-CA 6 2022 UT App 68

Father,4 and the court ordered “an expedited ICPC[5] with 

Louisiana to allow DCFS to . . . determine if [placing the Children 

with Father] is a proper placement.”

¶12 In January 2020, while DCFS was “working on the ICPC,”

the court held another review hearing, but Father again failed to 

appear, and did not answer the phone when the court called him.

Father did, however, appear at a subsequent hearing in early June 

2020 (held via videoconference), and for the first time claimed to 

have filled out and sent in the indigency forms requesting 

appointment of a public defender. The court indicated that it had 

not yet received the completed forms, but in light of Father’s 

request for counsel—and at the urging of appointed counsel for 

Mother—the court went ahead and appointed an attorney to 

represent him anyway, at least on a temporary basis. From that 

point forward, Father has always been represented by counsel in 

this matter. 

¶13 At another hearing a week later, Father’s attorney 

appeared but Father did not, despite the court’s attempt to contact 

him. The court indicated, however, that it had received the 

4. K.S. later testified that Father was physically abusive when the 

Children lived with him; in particular, she stated that he would 

“hit [the Children] with a belt” and would make them “kneel 

down on dry rice for about four hours or so.” She also testified 

that she gets “really scared” when she is with him “to a point 

where [her] stomach starts hurting” and she “start[s] shaking.” 

5. The abbreviation “ICPC” refers to the Interstate Compact on 

Placement with Children, an interstate agreement that has been 

adopted by all fifty states. See Utah Code Ann. § 62A-4a-701 

(LexisNexis 2018). The ICPC allows child welfare agencies from 

different states to cooperate regarding placement of children 

across state lines. What the juvenile court meant when it ordered 

“an expedited ICPC” is discussed below, in Part II. 
In re K.S.

20210520-CA 7 2022 UT App 68

completed indigency forms from Father, and it appointed him 

counsel on a permanent basis.

¶14 At a continued permanency hearing in late June 2020, 

Father appeared via videoconference, as did his attorney. During 

the hearing, the court inquired of Father as to why he had not 

remained in contact with the Children, and Father indicated that 

it was “because of his work”; the court found that though Father 

“did work on the oil rigs,” he had “the opportunity to contact [the 

Children] and did not.” 

¶15 On June 30, 2020, Louisiana child welfare authorities sent a 

letter to DCFS “in reference to” DCFS’s “inquiry regarding a 

home study request” for Father. Louisiana authorities indicated 

that they had made six unsuccessful attempts to contact Father 

before finally reaching him on the seventh attempt and 

scheduling an appointment for an interview. On the date of the 

scheduled interview, however, Father called and canceled, 

apparently “because of work,” and the interview was 

rescheduled. On the rescheduled date, Louisiana authorities went 

to Father’s home, but he told them that he was about to move and 

that he would not be living there when the Children might 

possibly be staying with him, so the authorities “did not complete 

a home assessment on that home.” Father told the Louisiana

authorities that he would call them with his new address, but he 

never did, and the authorities’ subsequent “attempts to reach him 

were futile.” Some five months later, Father finally contacted 

them and told them his phone had been broken. Louisiana 

authorities closed the case due to Father “being noncompliant.”

¶16 Later that summer, DCFS filed a petition seeking 

termination of both Mother’s and Father’s parental rights as to the 

Children. With regard to Father, DCFS alleged the existence of 

several grounds for termination, including abandonment, and 

asserted that it was in the Children’s best interest that his parental 

rights be terminated. At a subsequent hearing, the court changed 
In re K.S.

20210520-CA 8 2022 UT App 68

the primary permanency goal from reunification to adoption, 

with the intent that Stepfather would adopt K.S. and Foster 

Parents would adopt C.S. Another mediation was scheduled, at 

which Father did appear, but it was unsuccessful.

¶17 A few weeks later, after another hearing and at the 

recommendation of the guardian ad litem, the court concluded 

that any subsequent contact between Father and the Children 

should be conducted either through the Children’s therapists or 

the guardian ad litem. The court also imposed discovery and 

disclosure orders as the parties prepared for a trial on DCFS’s 

termination petition.

¶18 In November 2020, Father filed a motion asking the court 

to authorize a team of independent expert therapists, paid for by 

DCFS or the county, to assess Father’s relationship with the 

Children and issue a report. DCFS did not oppose the motion, and 

the court subsequently granted it. It then took several months to 

select the experts, who were officially appointed in March 2021,

and the evaluation was finally scheduled to take place in April 

2021. But Father failed to appear for the evaluation, and it was

therefore not completed as scheduled. Father asked the court to 

postpone the trial dates so that the assessment could be 

rescheduled, but the court denied that request. 

¶19 The court held a three-day trial in June 2021 to consider the 

State’s termination petition. At trial, the court heard testimony

from the Children—ages 13 and 12 at the time—both of whom

stated that they were happy and thriving in their respective 

placements and that neither had any desire to live with (or even 

see) Father again. The State presented testimony from the 

Children’s therapist, who provided a summary of each child’s 

respective behavioral issues and detailed the Children’s shared

anxiety regarding Father. The State also offered testimony from a 

DCFS caseworker who testified that Father had consistently failed 

to communicate with her.
In re K.S.

20210520-CA 9 2022 UT App 68

¶20 For his part, Father introduced testimony from his fiancée

and also testified on his own behalf. Both averred that Father was

an active and attentive father who had attempted to maintain 

contact with the Children throughout their entire lives. Father

acknowledged, however, that he had failed to maintain 

communication with the Children for at least one six-month 

period, attributing that failure in part to a broken cell phone.

Lastly, the court heard testimony from Stepfather and Foster 

Mother, who testified that the Children were doing well and were 

relieved to no longer be forced to communicate with their parents. 

Both also testified that they would happily pursue adoption if 

given the opportunity. Mother did not appear at trial.

¶21 After taking the matter under advisement, the court issued 

a written decision terminating the parental rights of both Mother 

and Father.6 The court first found that DCFS had made a “fair and 

serious attempt” to reunify the Children with their parents. Next, 

the court found at least three separate statutory grounds—

including abandonment—for termination of Father’s parental 

rights. Finally, the court concluded that termination of Father’s 

parental rights was in the Children’s best interest and was strictly 

necessary. In assessing the Children’s best interest, the court 

found that the Children were both doing significantly better in 

their respective placements than they had been doing in the 

custody of either parent; the court additionally noted that the 

Children had formed meaningful relationships with their foster 

families and that disrupting those relationships would be 

detrimental to their well-being. The court also emphasized the 

fact that the Children expressed a strong desire to be adopted and 

no desire to have any kind of a relationship with Father.

6. Mother is not a participant in this appeal, and the court’s order 

terminating her rights is not at issue here. 
In re K.S.

20210520-CA 10 2022 UT App 68

ISSUES AND STANDARDS OF REVIEW

¶22 Father appeals the juvenile court’s order terminating his 

parental rights, and asks us to consider three issues. First, he 

alleges that the court “violated [his] right to counsel by having 

repeated hearings where Father was unrepresented.” If this issue 

were preserved for our review, we would review it for 

correctness. See State v. King, 2018 UT App 190, ¶ 10, 437 P.3d 425

(“Whether a defendant has the right to counsel during a particular 

phase of [the] proceedings is a constitutional issue that presents a 

question of law that we review for correctness.”). But Father 

acknowledges that this issue is not preserved for appellate review, 

and asks us to apply plain error review. “To demonstrate plain 

error, a defendant must establish that (i) an error exists; (ii) the 

error should have been obvious to the trial court; and (iii) the error 

is harmful.” State v. Johnson, 2017 UT 76, ¶ 20, 416 P.3d 443 

(quotation simplified).7

¶23 Second, Father contends that the juvenile court erred by 

determining that it could not place the Children with him in 

7. This court recently held that plain error review is generally not 

available to civil litigants. See Kelly v. Timber Lakes Prop. Owners 

Ass’n, 2022 UT App 23, ¶ 44. We left open the possibility, 

however, that plain error review may still be available in certain 

types of civil cases that involve significant fundamental rights, 

including cases—like this one—that involve “termination of 

parental rights.” Id. ¶ 11 n.10. Because it remains unsettled 

whether plain error review is available in cases like this one, and 

because neither party asks us to conclude that plain error review 

is unavailable here, we proceed to analyze Father’s claims, where 

appropriate, for plain error. See, e.g., Miner v. Miner, 2021 UT App 

77, ¶ 11 n.3, 496 P.3d 242 (stating that, where the issue remains 

unsettled, and where “both parties appear to assume the 

propriety of plain error review” in the case at hand, the court 

would apply plain error review where appropriate). 
In re K.S.

20210520-CA 11 2022 UT App 68

Louisiana absent an ICPC review by Louisiana authorities. As 

with the first issue, Father acknowledges that he did not object to 

the court’s action and that his objection is therefore unpreserved, 

but nevertheless asks us to review the issue for plain error.

¶24 Third, Father assails the merits of the juvenile court’s 

determination to terminate his parental rights. He contends that 

there exists insufficient evidence to support the court’s 

determinations that there are statutory grounds for termination 

and that termination was in the Children’s best interest. “The 

ultimate conclusion that a parent is unfit or that other grounds for 

termination have been established is a legal question, but such 

decisions rely heavily on the juvenile court’s assessment and 

weighing of the facts in any given case.” In re J.M., 2020 UT App 

52, ¶ 22, 463 P.3d 66 (quotation simplified). We thus afford a “high 

degree of deference to a juvenile court’s decision with regard to 

the existence of statutory grounds, and overturn it only when the 

result is against the clear weight of the evidence or leaves us with 

a firm and definite conviction that a mistake has been made.” Id. 

(quotation simplified). And we apply this same deferential 

standard to a juvenile court’s decision that termination of a 

parent’s rights is in a child’s best interest. See In re E.R., 2021 UT 

36, ¶¶ 7, 12, 496 P.3d 58. 

ANALYSIS

I

¶25 Father first argues that the juvenile court violated his right 

to counsel by holding hearings while Father was unrepresented.

We find Father’s argument unpersuasive, because Father waived 

his right to counsel at the first two hearings, and was appointed 

counsel as soon as he indicated that he desired a court-appointed 

attorney and that he had completed the indigency request form. 

Under these circumstances, the juvenile court did not err. 
In re K.S.

20210520-CA 12 2022 UT App 68

¶26 Father certainly had the right to be represented by counsel 

from the outset of these proceedings. See Utah Code Ann. § 80-3-

104(2)(a) (LexisNexis Supp. 2021) (“The parent or guardian of a

minor who is the subject of an abuse, neglect, or dependency 

petition has the right to be represented by counsel, and to present 

evidence, at each hearing.”).

8 As a parent facing termination of his 

parental rights, Father had the right to be represented by a courtappointed attorney, at no cost to himself, if he did “not knowingly 

and voluntarily waive the right to counsel” and was found to be 

“indigent.” See id. § 78B-22-201(1)-(2) (LexisNexis Supp. 2021); see 

also Utah R. Juv. P. 35(a) (“At the commencement of the initial 

pre-trial hearing, if the parent . . . appears pro se, the court shall 

advise the parent . . . of the right to the assistance of counsel at all 

stages of the proceeding including the right to apply to the court 

for the appointment of counsel if indigent.”). 

¶27 At the first two hearings at which Father telephonically 

appeared, he voluntarily waived his right to counsel, and he does 

not now, on appeal, claim otherwise. At the first hearing, the 

juvenile court explained to Father that he had the right to an 

attorney at that hearing and at all future hearings, even if he could 

not afford one, and gave him instructions as to how to apply for a 

court-appointed attorney if he later changed his mind and 

decided he wanted one. The court reiterated these instructions at 

Father’s third hearing, this time also emailing Father the relevant 

request form, which Father acknowledged receiving.9 The court 

8. Some of the statutes cited in this section have been subject to 

recent revision. Where the recent revisions have not materially 

changed the statutes as concerns this case, we cite the current 

version of the statutes for convenience. 

9. The record submitted to us does not contain transcripts of these 

early hearings; the information included here comes from the 

(continued...)
In re K.S.

20210520-CA 13 2022 UT App 68

then scheduled another hearing, but Father did not appear at that 

hearing or at a scheduled mediation, and the court then (at the 

State’s request) entered default against Father.

¶28 Father’s next telephonic appearance was at a hearing a few 

months later, where he reiterated his request that the Children be 

placed with him following their removal from Mother’s custody, 

and where the court ordered “an expedited ICPC.” The record 

contains no indication that Father requested a court-appointed 

lawyer at this hearing. And Father did not appear at the next 

hearing scheduled in the case.

¶29 Father did, however, appear at a subsequent hearing in 

June 2020 (held via videoconference), and for the first time 

court’s minute entries summarizing events at the hearings. Those 

minute entries indicate that Father’s waiver of counsel was 

“knowing and willing.” Because we do not have access to the 

transcripts of these hearings, we must presume the regularity of 

the proceedings occurring during those hearings, including a 

presumption that the waiver of counsel described in the minute 

entries was knowing and voluntary. See Capital One Bank (USA), 

NA v. Roberts, 2014 UT App 120, ¶ 2, 327 P.3d 1226 (per curiam) 

(“In the absence of the transcript on appeal, the reviewing court 

presumes the regularity of the proceedings below.”). 

Nevertheless, we take this opportunity to remind juvenile courts 

of the importance of taking appropriate steps, including proactive 

steps, to ensure that all parents facing termination of their 

parental rights have the opportunity to be represented by counsel, 

and that all waivers of the right to counsel are knowing and 

voluntary. See State v. Frampton, 737 P.2d 183, 187 (Utah 1987) 

(stating that “it is the trial court’s duty to determine if [a 

defendant’s] waiver is a voluntary one which is knowingly and 

intelligently made,” and that “a colloquy on the record between 

the court and the accused is the preferred method of ascertaining 

the validity of a waiver”).
In re K.S.

20210520-CA 14 2022 UT App 68

requested an attorney and claimed to have filled out and sent in 

the indigency forms requesting appointment of a public defender.

Although the court had not yet received those forms, it went 

ahead and appointed an attorney to represent him anyway, at 

least on a temporary basis. From that point forward, Father has 

always been represented by counsel in this matter. 

¶30 Father’s chief complaint, in this regard, is that the juvenile 

court, “instead of insisting on [Father] filling out the [request 

form],” “should have taken brief testimony from Father on the 

record to determine if he would qualify for counsel.” We see two 

problems with this argument. 

¶31 First, at his first two appearances, Father expressly and 

voluntarily waived his right to an attorney. Individuals have a 

constitutional right to represent themselves if they so choose, and 

this right is one that courts must respect. See State v. Frampton, 737 

P.2d 183, 187 (Utah 1987) (citing Faretta v. California, 422 U.S. 806

(1975), and stating that “the sixth amendment to the United States 

Constitution . . . implicitly guarantees” the right to selfrepresentation, and that a person’s “right to conduct his own 

defense must be respected and guarded by the courts in harmony 

with the right to assistance of counsel, also guaranteed by the 

sixth amendment”). In the face of Father’s expressed desire to 

represent himself, and his apparent voluntary waiver of his right 

to counsel, the juvenile court did not commit error by declining to 

take testimony from Father to assess his level of indigency.10 And 

10. In this regard, the case at hand is materially distinguishable 

from Buck v. Arkansas Department of Human Services, 548 S.W.3d 

231 (Ark. Ct. App. 2018), a case Father relies on to support his 

argument. In Buck, the parent never voluntarily waived his right 

to counsel. Id. at 233–34. And there is no indication that the parent 

in Buck was ever even informed that he had the right to counsel, 

or that he was given an opportunity to request the appointment 

of counsel. Id.
In re K.S.

20210520-CA 15 2022 UT App 68

the moment the court perceived that Father wished to withdraw 

his waiver and request counsel, the court appointed counsel to 

represent him, even before it had received the request form for the 

appointment of counsel.

¶32 Second, when a parent requests an attorney, the applicable 

rule of procedure gives juvenile courts a choice regarding how 

that request should be handled. See Utah R. Juv. P. 35(a) (“If 

appointment of counsel is requested, the court may proceed to 

examine the parent . . . concerning eligibility for appointed 

counsel or the court may continue the pre-trial hearing and 

require the parent . . . to file an affidavit or other evidence as 

deemed appropriate by the court for a determination as to 

eligibility for appointed counsel.”). Certainly, the court could 

have done as Father now advocates: it could have proceeded to 

examine Father regarding his financial circumstances, during the 

hearing and on the record. See id. But the rule affords the court 

another option: to require the parent to fill out the form. Id. And 

again, Father overlooks the fact that the court appointed him an 

attorney as soon as Father’s request for one was made clear, even 

before the court had received the form; nothing in the record 

indicates that the juvenile court was waiting for the completed 

form—as opposed to waiting for Father to actually request 

counsel—before appointing counsel.

¶33 Under the circumstances presented here, we perceive no 

error—let alone an obvious one—in the juvenile court’s handling 

of Father’s right to and request for counsel. On this basis, we reject 

Father’s first claim. 

II

¶34 Father next takes issue with the juvenile court’s refusal to 

immediately place the Children with him once the court removed 

them from Mother’s custody. In particular, Father complains 

about the court’s decision to order “an expedited ICPC” before 
In re K.S.

20210520-CA 16 2022 UT App 68

making any decision about placing the Children with him, 

asserting that the ICPC has no application in a situation in which 

a court is considering placing a child with a noncustodial parent 

who lives in another state. Even assuming, for purposes of our 

analysis, that Father’s interpretation of the ICPC is the better one, 

we nevertheless find his arguments unpersuasive. 

¶35 The ICPC—the Interstate Compact on Placement of 

Children—is a uniform law, adopted in all fifty states, that sets 

rules for coordinating the placement of children across state lines. 

See Utah Code Ann. § 62A-4a-701 (LexisNexis 2018). As relevant 

here, the ICPC mandates that no state “shall send . . . any child for 

placement in foster care or as a preliminary to a possible adoption 

unless” certain conditions are met, including a requirement that 

“the appropriate public authorities in the receiving state” provide 

written notification to the sending state that “the proposed 

placement does not appear to be contrary to the interests of the 

child.” Id. § 62A-4a-701 art. III(1), (2)(f). Father argues—with some 

force—that the plain language of the ICPC indicates that its 

requirements apply only to placements for “foster care” or for 

purposes of facilitating an “adoption,” and not to placements with 

a noncustodial parent. Several jurisdictions have interpreted the 

ICPC in this manner. See, e.g., McComb v. Wambaugh, 934 F.2d 474, 

482 (3d Cir. 1991) (concluding that “the [ICPC] does not apply 

when a child is returned by the sending state to a natural parent 

residing in another state”); Arkansas Dep’t of Human Services v. 

Huff, 65 S.W.3d 880, 888 (Ark. 2002) (“Based upon . . . the plain 

language of the statute, we hold that the [ICPC], read as a whole, 

was intended only to govern placing children in substitute 

arrangements for parental care, such as foster care or adoption.”); 

In re C.B., 116 Cal. Rptr. 3d 294, 299 (Ct. App. 2010) (“In our view, 

the notice provisions do not apply to a placement with a parent.”); 

In re Emoni W., 48 A.3d 1, 6 (Conn. 2012) (agreeing with the lower 

court that the ICPC “does not apply to out-of-state noncustodial 

parents”); In re Alexis O., 959 A.2d 176, 182 (N.H. 2008)
In re K.S.

20210520-CA 17 2022 UT App 68

(concluding that the ICPC “was not intended to apply when a 

child is returned by the sending state to a natural parent residing 

in another state” (quotation simplified)); In re D.F.-M., 236 P.3d 

961, 966 (Wash. Ct. App. 2010) (“We are persuaded that the ICPC 

governs only the placement of children in substitute 

arrangements for parental care.”).

¶36 Several other jurisdictions, by contrast, have interpreted 

the ICPC to apply to placements with noncustodial parents. See,

e.g., Arizona Dep’t of Econ. Sec. v. Stanford, 323 P.3d 760, 764 (Ariz. 

Ct. App. 2014) (concluding that the ICPC applies “to placement 

with parents and relatives” (quotation simplified)); Green v. 

Division of Family Services, 864 A.2d 921, 926 (Del. 2004) (stating 

that the ICPC “governs the children’s placement with 

[noncustodial parents]”); Department of Children & Families v. C.T., 

144 So. 3d 684, 686 (Fla. Dist. Ct. App. 2014) (interpreting the ICPC

to apply “when a court exercises its jurisdiction to place a child 

with an out-of-state parent”); State ex rel. Juvenile Dep’t v. Smith, 

811 P.2d 145, 147 n.4 (Or. Ct. App. 1991) (concluding that the ICPC 

“does apply to a child who is sent to another state for placement 

with parents or relatives,” as long as “someone other than a parent 

or relative makes the placement”); see also In re adoption of Warren, 

693 N.E.2d 1021, 1024 (Mass. App. Ct. 1998) (applying the ICPC 

to a noncustodial parent based on a specific Massachusetts 

regulation). Some of these courts relied on a “regulation” issued 

in connection with the ICPC that provides that “[p]lacement of a 

child requires compliance with the [ICPC] if such placement is 

made under one of the following four types of placement 

categories,” including “[p]lacements with parents and relatives.” 

See American Public Human Services Ass’n, ICPC Regulations,

Regulation 3, https://aphsa.org/OE/AAICPC/ICPC_Regulations.a

spx [https://perma.cc/DA9W-Z4KM] [hereinafter ICPC Regulatio

ns]; see also, e.g., Stanford, 323 P.3d at 764; Green, 864 A.2d at 927–

28. Father criticizes these cases on the ground that some of them
In re K.S.

20210520-CA 18 2022 UT App 68

rely on the text of a regulation rather than on the text of the ICPC 

itself.

¶37 We acknowledge Father’s point that there exists a sharp 

split of authority among courts that have considered the issue, 

and we recognize that Utah’s appellate courts, at some point, may 

need to weigh in on this question. But in our view, this case does 

not present an appropriate opportunity for us to do so because,

even if we presume for purposes of our analysis that Father’s 

interpretation of the ICPC—that it has no application to 

placements with noncustodial parents—is the better one, Father 

still cannot prevail here, for several reasons. 

¶38 First, as already noted, see supra ¶ 23, Father did not lodge 

any objection to the juvenile court’s decision to request “an 

expedited ICPC,” and therefore Father did not preserve this issue 

for our review. As a consequence, we review this issue only for 

plain error, a standard that requires Father to demonstrate not 

only error but obvious error on the part of the court. See State v. 

Johnson, 2017 UT 76, ¶ 20, 416 P.3d 443. A court’s error is “not plain 

where there is no settled appellate law to guide [it].” See State v. 

Ross, 951 P.2d 236, 239 (Utah Ct. App. 1997); see also State v. Dean, 

2004 UT 63, ¶ 16, 95 P.3d 276 (noting that, to establish obvious 

error, a party “must show that the law governing the error was 

clear at the time the alleged error was made”). And we have 

recently held that, where there is no Utah appellate law on the 

question and there exists a genuine “split of authority” in other 

jurisdictions on the question, the law is “far from plainly settled, 

and therefore any alleged error in the court’s analysis was not 

obvious.” See Freight Tec Mgmt. Group Inc. v. Chemex Inc., 2021 UT 

App 92, ¶¶ 40–41, 44, 499 P.3d 894 (quotation simplified). Here, 

no Utah appellate court has yet offered an interpretation of the 

ICPC in this context, and courts in other jurisdictions are sharply 

divided. Under these circumstances, even if we assume that the 

juvenile court should have espoused an interpretation of the ICPC 
In re K.S.

20210520-CA 19 2022 UT App 68

in line with Father’s, its decision to implicitly adopt the opposite 

interpretation cannot fairly be characterized as obvious error. 

¶39 Second, Utah’s shelter statute does not permit the juvenile 

court—without any investigation whatsoever—to immediately 

place children removed from a custodial parent’s home with a 

noncustodial parent. See Utah Code Ann. § 80-3-302(2) 

(LexisNexis Supp. 2021). That statute does instruct juvenile 

courts, after removing a child from a custodial parent’s care, to 

“determine whether there is another natural parent with whom 

the child was not residing at the time . . . who desires to assume 

custody of the child,” and to “place the child with that parent 

unless the juvenile court finds that the placement would be unsafe 

or otherwise detrimental to the child.” Id. § 80-3-302(2)(a), (b). But 

before making any such placement, the court “shall make a 

specific finding regarding the fitness” of the noncustodial parent

and “the safety and appropriateness of the placement.” Id. § 80-3-

302(2)(c)(i). In the course of making that finding, the court “shall, 

at a minimum, order [DCFS] to visit the [noncustodial] parent’s 

home” and conduct appropriate “background check[s]” of the 

noncustodial parent. Id. § 80-3-302(2)(c)(ii). And the court “may 

order . . . any further investigation” beyond those minimum 

requirements. Id. § 80-3-302(2)(c)(iii). 

¶40 In this case, because Father resided in Louisiana, it was 

impractical for the court to order DCFS to visit Father’s home, as 

the court surely would have done if Father lived in Utah. Instead, 

the court needed to come up with some mechanism for inspection 

of Father’s home in Louisiana. The court, after discussion at the 

October 2019 hearing, ordered “an expedited ICPC with 

Louisiana to allow DCFS to . . . determine if [placing the Children 

with Father was] a proper placement.” No party objected, at the 

time, to the court’s decision. 

¶41 Father now assails that decision, interpreting it as an order 

requiring a “home study” pursuant to the ICPC, and asserting 
In re K.S.

20210520-CA 20 2022 UT App 68

that such home studies often take far too long and that the court 

should have come up with a different and more expeditious way 

to satisfy the home-inspection requirements of Utah’s shelter 

statute. In particular, Father asserts that instead of ordering a 

home study, the court should have “request[ed] a courtesy check 

of [Father’s] home,” a measure Father contends is “outside of the 

ICPC.” Father asserts that this “would have permitted a quick 

evaluation of Father’s home,” and would potentially have 

allowed the court to more quickly assess the safety and propriety 

of placing the Children with him. 

¶42 We assume, for purposes of our analysis, that Father 

correctly interprets the juvenile court’s order for “an expedited 

ICPC” as an order for an ICPC home study. Neither the State nor 

the guardian ad litem takes issue with this characterization, and 

the Louisiana child welfare authorities appear to have interpreted 

the request made to them as asking for an ICPC home study. But 

Father does not point to any evidence in the record, or to any legal 

authority, indicating that a non-ICPC-related “courtesy check” 

would have been appreciably quicker than the “expedited” home 

study the court apparently ordered.11 In addition, if a court orders 

a courtesy check (as opposed to a home study), “the responsibility 

for credentials and quality of the ‘courtesy check’ rests directly 

with the sending court/agency” and does not come accompanied 

by “the protection of the ICPC home study process.” See ICPC 

Regulations, Regulation 3, para. 3(b). Father makes no effort to 

persuade us that the juvenile court, at the time it ordered the 

“expedited ICPC,” had ready access to reputable non-ICPCrelated agencies, companies, or individuals in Louisiana who 

11. ICPC regulations indicate that home studies are “to be 

completed within sixty (60) calendar days.” See ICPC Regulations, 

Regulation 2, para. 7. Father offers no information indicating how 

long home studies actually take, or comparing the typical 

duration of home studies with courtesy checks. 
In re K.S.

20210520-CA 21 2022 UT App 68

could have conducted a “courtesy check.” On this record, we are 

hard-pressed to conclude that the juvenile court erred at all by 

selecting an “expedited” ICPC home study over a courtesy check, 

let alone that the court committed an obvious error that it was 

obligated to correct sua sponte. 

¶43 Moreover, Father fails to account for his own role in 

delaying the ICPC home study. Louisiana child welfare officials, 

acting pursuant to the ICPC, made six unsuccessful efforts to 

contact Father and schedule an interview, before finally 

connecting with him on their seventh attempt. On the date of the 

scheduled interview, however, Father called and rescheduled. 

Later, on the rescheduled date, Louisiana authorities went to 

Father’s home to conduct the inspection, but he told them that he 

would not be living in that home much longer, so Louisiana 

authorities “did not complete a home assessment on that home.” 

Father told the authorities that he would call them with his new 

address, but he made no contact with them for some five months; 

Louisiana officials attempted to contact Father during this time 

but were unable to do so. Louisiana authorities eventually closed 

the case due to Father “being noncompliant.” Thus, even if we 

were to assume that the juvenile court committed obvious error 

by ordering an ICPC home study instead of a “courtesy check,” 

Father has not met his burden, on this record, of demonstrating 

that he was prejudiced by any error. 

¶44 Finally, Father fails to grapple with the fact that, at least as 

to K.S., he was never adjudicated as the legal father. Thus, even if 

we were to assume that Father’s interpretation of the ICPC—that 

it does not apply to placements with noncustodial parents—was 

the correct one, the court would still have been on completely 

solid ground to apply the ICPC to its decision as to whether to 

place K.S. with Father. 

¶45 For all of these reasons, Father has not carried his burden 

of demonstrating that the juvenile court plainly erred by ordering 
In re K.S.

20210520-CA 22 2022 UT App 68

“an expedited ICPC” before placing the Children with Father in 

Louisiana.

III

¶46 Father’s final argument is that there existed insufficient 

evidence to support the juvenile court’s decision to terminate his 

parental rights. Before terminating a parent’s rights, a court must 

engage in a two-part analysis. First, the court must find that at 

least one statutory ground for termination is present; second, the 

court must conclude that termination of the parent’s rights is in

the best interest of the affected children. See In re B.T.B., 2020 UT 

60, ¶¶ 19–20, 472 P.3d 827. The juvenile court engaged in that twopart analysis here, finding several separate statutory grounds for 

terminating Father’s rights, and concluding that termination was 

in the Children’s best interest. Father challenges both parts of the 

court’s analysis, and we discuss each one, in turn. 

A

¶47 In this case, the juvenile court found that at least three12

separate statutory grounds existed for terminating Father’s 

parental rights: abandonment, neglect, and the fact that Father 

had made only “token efforts to support or communicate with” 

the Children. The presence of any one statutory ground “is 

sufficient to fulfill the first element of the termination test.” See In 

re J.M., 2020 UT App 52, ¶ 30, 463 P.3d 66. Thus, we will affirm 

the juvenile court’s determination regarding statutory grounds if 

12. The court also found that the Children’s “parents” failed to 

remedy the circumstances that caused the Children to be removed 

from Mother’s care. The parties take different positions with 

regard to whether, and to what extent, this finding might apply to 

Father, and given that other statutory grounds for termination 

exist here and are supported by the evidence, we need not explore 

this additional finding further. 
In re K.S.

20210520-CA 23 2022 UT App 68

we conclude that the court’s determination as to any one of them 

is not subject to reversal. Id. In this case, we focus on 

abandonment, and conclude that the juvenile court did not err in 

determining that Father had abandoned the Children. 

¶48 Our supreme court has outlined a two-part test for

abandonment: “First, the petitioner must demonstrate that the 

respondent parent has engaged in conduct that implies a 

conscious disregard for his or her parental obligations. Second, 

the petitioner must show that the respondent parent’s conduct led 

to the destruction of the parent-child relationship.” In re T.E., 2011 

UT 51, ¶ 20, 266 P.3d 739. This judicial test is “supplemented” by 

a statute stating that it is “prima facie evidence of abandonment” 

if a parent “fail[s] to communicate with the child by mail, 

telephone, or otherwise for six months” or “fail[s] to . . . [show] 

the normal interest of a natural parent, without just cause.” See id.

¶ 21 (quotation simplified); Utah Code Ann. § 80-4-302(1)(b)–(c) 

(LexisNexis Supp. 2021).13 “[B]y establishing prima facie evidence 

of abandonment, a petitioner creates a presumption that the 

respondent parent has abandoned the child.” In re T.E., 2011 UT 

51, ¶ 21. Under these legal principles, if the petitioner

demonstrates that the parent failed to communicate with the child 

for any six-month period, a presumption is created both (a) that 

the parent “consciously disregarded . . . his parental obligations”

and (b) that the parent’s “conduct has led to the destruction of the 

13. The statute also indicates that “it is prima facie evidence of 

abandonment that the parent . . . [,] although having legal custody 

of the child, [has] surrendered physical custody of the child, and 

for a period of six months following the surrender [has] not 

manifested to the child or to the person having physical custody 

of the child a firm intention to resume physical custody or to make 

arrangements for the care of the child.” Utah Code Ann. § 80-4-

302(1)(a) (LexisNexis Supp. 2021). The juvenile court did not 

mention this additional ground in its findings. 
In re K.S.

20210520-CA 24 2022 UT App 68

parent-child relationship.” Id. Once this presumption has been

established, the burden shifts to the parent to rebut it, which the 

parent may attempt to do by presenting evidence “indicating that 

[the parent] did not consciously disregard . . . parental obligations 

or that [the] conduct did not lead to the destruction of the parentchild relationship.” See id. ¶¶ 21–22. After considering the 

parent’s rebuttal evidence, the juvenile court must determine 

whether “the petitioner has established abandonment by clear 

and convincing evidence.” Id. ¶ 23. 

¶49 Here, the juvenile court found prima facie evidence of 

abandonment for two reasons. First, it found that Father had 

“failed to communicate in any way with” the Children “for six 

months or more.” Father did not contest at trial, and does not 

contest now, that there was in fact at least one six-month period 

during which he had no communication with the Children.14

Indeed, K.S.—who was 13 at the time of trial—testified that she 

had not seen Father since she was seven years old, and that she 

did not remember the last time she spoke with him. C.S. testified 

similarly, alleging that he had not seen Father in years, and that 

he “never” had phone calls or video chats with him. Second, the 

court found that Father had “not shown the normal interest of a 

natural parent without just cause.” On these bases, the court 

found that the State had established a prima facie case of 

abandonment, and we agree with the juvenile court that clear and 

convincing evidence supported this conclusion. 

¶50 Father attempted to rebut the abandonment presumption 

at trial by attributing his inattention to a broken cell phone. On 

14. The juvenile court did not specifically set forth the dates of the 

six-month period in question, but there is evidence indicating that 

Father had no contact with the Children from December 2019 to 

June 2020, a period that does not include any of the time following 

the court’s order that any contact between Father and the 

Children be had, if at all, through DCFS or therapists. 
In re K.S.

20210520-CA 25 2022 UT App 68

appeal, Father again directs our attention to the broken phone, 

which he asserts should “serve to interrupt” the six-month period 

of no communication, and he asserts that he was otherwise 

unfamiliar with how to participate in a child welfare case. He also 

notes that, when Mother asked him to, he drove to Utah in an 

effort to resume custody of the Children. The juvenile court found 

Father’s testimony on many of these issues to be “unreliable and 

not credible,” and found his rebuttal evidence unpersuasive, 

noting that Father’s phone was broken for no more than two 

months, that “there were other means at his disposal” by which 

he could have contacted the court or DCFS to “arrange visitation,”

and that a parent exhibiting normal interest in his children would 

have availed himself of one or more of these other means. We 

discern nothing erroneous about this conclusion, and we agree 

with the juvenile court that clear and convincing evidence 

supported its determination that Father had consciously 

disregarded his parental obligations and that Father’s conduct 

contributed significantly to the evident deterioration of the 

relationship between Father and the Children. 

¶51 Accordingly, we reject Father’s challenge to the juvenile 

court’s determination that at least one statutory ground for 

terminating Father’s rights was present here. See In re J.M., 2020 

UT App 52, ¶ 30. 

B

¶52 The second part of the termination test requires a court to 

determine whether termination of the parent’s rights is in the best 

interest of the affected children, an inquiry that includes 

consideration of whether termination is “strictly necessary to 

promote the [children’s] welfare and best interest.” SeeIn re B.T.B., 

2020 UT 60, ¶ 76, 472 P.3d 827. The juvenile court concluded that 

termination of Father’s rights was in the Children’s best interest 

and was strictly necessary to promote that interest. In this case, 
In re K.S.

20210520-CA 26 2022 UT App 68

there exists sufficient support in the record to sustain the juvenile 

court’s determination. 

¶53 “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.” In re H.F., 2019 UT App 204, ¶ 14, 455 

P.3d 1098 (quotation simplified). This broad examination “should 

be undertaken from the child’s point of view, not the parent’s.” 

See In re B.T.B., 2020 UT 60, ¶ 63 (quotation simplified). In 

connection with this inquiry, a court should “consider whether 

something short of termination would serve the child’s welfare 

and best interest,” id. ¶ 71, and should terminate a parent’s rights 

only after considering the “legislatively mandated position that 

wherever possible, family life should be strengthened and 

preserved,” and only after determining that “a different option is 

in the child’s best interest and that termination is strictly 

necessary to facilitate that option,” id. ¶ 66 (quotation simplified). 

¶54 The juvenile court followed that process here, and its 

conclusions are supported by ample evidence in the record. The 

court first found that the Children were “doing much better in 

their respective placements” than they ever had in Father’s 

custody, and that the Children adamantly desired to sever contact 

with Father so that they could be adopted. As noted, both 

Children expressed a desire, during their trial testimony, to be 

adopted by their foster families and not have a relationship with 

Father. K.S. even went so far as to state that, if forced to live with 

Father, she would run away. The court additionally found that 

both Children had developed lasting, meaningful relationships 

with their foster families and that disrupting those placements 

would be detrimental to their well-being. And Father did not 

suggest at trial, and does not suggest now, that there is another 

kinship placement or guardianship situation that might serve the 

Children’s needs as well as termination. In this situation, we do 

not consider the court’s decision to be “against the clear weight of 

the evidence,” nor are we left “with a firm and definite conviction 
In re K.S.

20210520-CA 27 2022 UT App 68

that a mistake has been made.” See In re E.R., 2021 UT 36, ¶ 7, 496 

P.3d 58 (quotation simplified). Accordingly, we reject Father’s 

challenge to the court’s best interest determination. 

CONCLUSION

¶55 The juvenile court did not err, let alone plainly, in the way

it handled Father’s initial waiver of the right to counsel and 

eventual request for counsel. The court also did not plainly err in 

ordering “an expedited ICPC” home study before considering 

whether to place the Children with Father. And we reject Father’s

challenges to the juvenile court’s conclusions that statutory 

grounds for termination of Father’s rights were present, and that 

termination was in the best interest of the Children. 

¶56 Affirmed.