2020 UT App 52

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF J.M. AND M.M.,

PERSONS UNDER EIGHTEEN YEARS OF AGE.

M.M.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20190673-CA

Filed March 26, 2020

Third District Juvenile Court, Salt Lake Department

The Honorable Julie V. Lund

Nos. 1156280 and 1156281

Thomas A. Luchs, Attorney for Appellant

Sean D. Reyes, Carol L.C. 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 After appellant M.M. (Mother) brought her two young 

children (M.M. and J.M., collectively referred to as the Children) 

to the hospital because they were having trouble breathing, 

M.M.’s urine tested positive for amphetamines, including 

methamphetamine. The State’s Division of Child and Family 

Services (DCFS) took custody of the Children, and placed them 

with foster parents. The juvenile court found the Children 
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neglected by Mother, and set a goal of reunification with Mother. 

For nearly a year, however, Mother did very little to comply 

with the reunification plan, and she was eventually incarcerated 

for probation violations related to previous criminal drug 

offenses she had committed. At that point, the court terminated 

reunification services and changed the primary permanency goal 

to adoption. Around the same time, the State filed a petition to 

terminate Mother’s parental rights.

¶2 Once she was incarcerated, though, Mother turned over a 

new leaf. Without the assistance of DCFS, Mother entered an 

inpatient drug treatment program and completed it successfully, 

and she eventually fulfilled all of the other requirements that the 

juvenile court had originally set for her. But she completed the 

inpatient treatment program only about four weeks prior to the 

termination hearing, and based on the evidence presented at that 

hearing, the court ordered Mother’s parental rights terminated. 

Mother now appeals that order. Although each of us may not 

have ordered termination were we in the juvenile court’s 

position, we cannot conclude that the juvenile court committed 

reversible error here, given our standard of review. We therefore 

affirm the order of the juvenile court.

BACKGROUND1

¶3 Mother’s substance use began when she was around 

thirteen years old. Initially, Mother was only using marijuana, 

but over the course of her teenage years, she progressed to using 

methamphetamine. In 2013, at the age of eighteen, Mother gave 

birth to her first child, A.M., who was born fetally exposed to 

methamphetamine. Thereafter, A.M. was removed from her 

 

1. “We recite the facts in the light most favorable to the juvenile 

court findings.” See In re K.J., 2013 UT App 237, ¶ 2 n.2, 327 P.3d 

1203. 
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custody, and her parental rights to A.M. were eventually 

terminated. Later, A.M. was adopted by foster parents.

¶4 In July 2016, Mother gave birth to M.M., who was also 

born fetally exposed to methamphetamine. In addition, M.M. 

was born with a heart defect and has required special medical 

care, including a recent surgery. In October 2017, Mother gave 

birth to J.M. Paternity to the Children has never been 

established.

¶5 On February 23, 2018, Mother noticed that the Children

were both having trouble breathing, so she took them to a local 

hospital, where they were diagnosed with respiratory illness and 

admitted for treatment. The medical staff conducted a number of 

tests on the Children, and those tests initially came back negative 

for illegal substances. When further testing was done, however, 

it was discovered that methamphetamine was present in M.M.’s 

urine. At some point, the hospital apparently received an 

anonymous phone call alleging that Mother had used 

methamphetamine around the Children. Hospital officials

alerted DCFS to the situation, and DCFS opened an

investigation, eventually taking the Children into custody and 

placing them with the same foster parents who had previously 

adopted the Children’s half-sibling A.M.

¶6 At an adjudication hearing in April 2018, the juvenile 

court found that Mother had neglected the Children, and that 

finding is not contested on appeal. The court set reunification as 

the primary permanency goal, with a concurrent goal of 

adoption. The court ordered DCFS to provide reunification 

services to Mother and ordered Mother to comply with a child 

and family plan that required her, among other things, to: 

submit to a mental health evaluation and complete 

recommended treatment; submit to a substance abuse evaluation 

and complete recommended treatment; submit to random urine 

tests for drugs; maintain stable housing and employment; and 

“complete all obligations with criminal court.”
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¶7 Between April and December 2018, Mother never failed to 

attend a scheduled visit with the Children (except when 

incarcerated), and she interacted appropriately with them 

during her visits. But Mother substantially failed to comply with 

most other aspects of the reunification plan. For example, while 

Mother did complete both mental health and substance abuse 

evaluations, she did not complete the recommended treatment.

Additionally, Mother missed many of her scheduled drug tests, 

and many of the tests she did take came back positive for 

marijuana or methamphetamine. At one point in the summer of 

2018, Mother began outpatient substance abuse treatment at a 

treatment facility (Treatment Facility), but she failed to complete 

the program.

¶8 Moreover, Mother did not appropriately address all of her 

pending criminal matters. In September 2018, she was ordered to 

serve thirty days in jail for probation violations. Even after being 

released, Mother continued to test positive for illegal substances, 

including methamphetamine. Mother was reincarcerated on 

November 29, 2018.

¶9 In light of Mother’s incarceration and her failure to 

comply with the terms of the reunification plan, in December 

2018 both the State and the guardian ad litem (GAL) asked the 

court to terminate reunification services and change the 

permanency goal to adoption. After a hearing, the juvenile court 

agreed with this request, and made findings that Mother had 

been “unsuccessful in completion of her service plan” and that 

“return of the [C]hildren would create a substantial risk of 

detriment” to their emotional or physical well-being. The court 

terminated reunification services and changed the permanency

goal to adoption. A few weeks later, the State filed a petition for 

termination of Mother’s parental rights.

¶10 After being incarcerated again in November 2018, Mother 

finally started taking meaningful steps to address her issues. She 

enrolled in educational programs at the jail, including a GED 
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class, and obtained her GED in just four weeks, which she 

claimed made her “the fastest GED graduate in jail history.” She 

began attending substance abuse treatment groups inside the 

jail, and in January 2019 she was able to arrange a release from 

the jail directly to an inpatient program at Treatment Facility.

Mother resided at Treatment Facility for four months, and she 

successfully completed the inpatient program there prior to her 

release on May 22, 2019. While at Treatment Facility, all of her 

drug tests came back clean. Her programming at Treatment 

Facility included not only substance abuse treatment, but also 

education in a number of other areas, including mental health

and parenting skills.

¶11 In March 2019, while Mother was at Treatment Facility, 

she asked the juvenile court to reinstate reunification services,

asserting that she had made “remarkable progress” in the 

program. The court noted that Mother had done “amazingly 

well” at Treatment Facility, but denied Mother’s motion for 

additional reunification services on the ground that “Mother 

does not need services from [DCFS] at this point,” due to the fact 

that she was receiving appropriate services at Treatment Facility. 

In recognition of Mother’s significant progress, however, the 

court “expanded visitation” for Mother with the Children. At 

that time, a date had already been set for a trial regarding the 

State’s petition to terminate Mother’s parental rights, and the 

court kept that date on the calendar.

¶12 The three-day termination trial took place in mid-June 

2019, about four weeks after Mother’s release from Treatment 

Facility. The State called two expert witnesses—psychologists 

who had evaluated Mother and M.M.—and the Children’s foster 

mother, as well as a DCFS social worker. The GAL also called, as 

a limited expert, another social worker. The psychologist who 

evaluated Mother explained that she conducted the evaluation 

before Mother had been admitted to the residential program at 

Treatment Facility; she discussed Mother’s ongoing struggles 

with substance use and described other conditions Mother 
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sometimes experienced, such as “forgetfulness, disorganization, 

impulsivity, [and] restlessness.” 

¶13 M.M.’s evaluator testified that, in her opinion, M.M. had 

been exposed to a number of traumas, including exposure to 

substance use, hospitalization, and removal from Mother’s care, 

and stated that children who have been traumatized often 

struggle when separated from their caregivers. The expert also 

testified that, while M.M.’s ability to regulate her emotions and 

control her temper improved during the time she was in her 

foster family’s care, her ability to interact smoothly with adults 

was negatively impacted by her visits with Mother.

¶14 The foster mother testified that the Children were shy and 

timid during visits with Mother, and often returned to the foster 

mother for hugs even while Mother was in the room. The foster 

mother also testified that, while M.M. was in her family’s care, 

M.M. had required heart surgery at the Mayo Clinic in 

Minnesota, and the foster family had arranged for this surgery 

and accompanied M.M. on the trip to Minnesota. The foster 

mother also testified that the Children called her “Mom” and 

saw her as their mother, and that they had bonded strongly with 

the other children in the household.

¶15 As part of its presentation at trial, the State attempted to 

introduce evidence regarding Mother’s history of drug abuse, 

including evidence concerning the circumstances that led to the 

termination of Mother’s parental rights with regard to A.M., the 

Children’s half-sibling. Mother’s attorney objected to the 

admission of any evidence that Mother’s parental rights as to 

A.M. had been terminated, but the court ultimately overruled 

Mother’s objection.

¶16 Mother called five witnesses at trial, in addition to herself: 

her therapist, case manager, programming teacher, and 

housemate from Treatment Facility; and her probation officer. 

Each of these individuals explained the progress they had 
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witnessed Mother make during and after the time she was at 

Treatment Facility, and they specifically described the decline in 

her criminal activity, the improvement in her finances, and the 

substantial improvements Mother had made toward sobriety.

The case manager, in particular, testified that Mother’s time at 

Treatment Facility had brought about a “drastic change” in 

Mother, and that she began “consistently working on building 

sober supports” and “finding healthy people in her life” while in 

the program. The case manager said that Mother had been “a 

remarkable participant” in the program because “she was 

always very organized, very structured, very determined,” “she 

took feedback well, [and] she was very good at working on her 

emotional regulation.” Her therapist and case manager both 

testified that they had high hopes for her future success. And

Mother’s probation officer testified that Mother had been staying 

out of legal trouble, and that, at the time of trial, Mother had not 

committed any additional probation violations. The probation 

officer added that all of Mother’s drug tests, both during and 

after her time at Treatment Facility, had come back clean.

¶17 Mother herself also testified at trial, explaining everything 

she had learned through her care at Treatment Facility, the 

progress she felt she was making, and how happy it made her to 

spend time with the Children during their visits.

¶18 In its closing argument, the State emphasized Mother’s 

long history of substance use and her relative lack of experience 

with sobriety in the community, noting that, since her early teen 

years, Mother’s “longest period of sobriety [has been] seven and 

a half months,” and even that was only recently “attained in a 

very highly structured setting” in jail and later at Treatment 

Facility. The State argued that “Mother has never maintained her 

sobriety outside of a structure of jail or treatment.”

¶19 After considering all of the evidence, including Mother’s 

past and current conduct, the juvenile court terminated Mother’s 

parental rights. In its order, the court found four statutory 
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grounds for termination. First, the court found that “Mother has 

neglected the [C]hildren,” noting specifically Mother’s “habitual 

or excessive use of . . . controlled substances.” Next, the court 

found that Mother “is unfit or incompetent” to parent the 

Children, again noting Mother’s history of substance use. Third, 

the court found that Mother “has substantially neglected, 

willfully refused, or has been unable or unwilling to remedy the 

circumstances that caused the [C]hildren to be in an out-of-home 

placement, and there is a substantial likelihood that Mother will 

not be capable of exercising proper and effective parental care in 

the near future.” Finally, the court found that “Mother has 

experienced a failure of parental adjustment in that she has been 

unable or unwilling within a reasonable time to substantially 

correct the conduct or conditions which led to the [C]hildren’s 

placement outside of the home.”

¶20 Next, the court found that “it is in the best interest of the 

[C]hildren to have the parental rights of Mother terminated so 

that the [C]hildren can be adopted and protected from further 

neglect and/or abuse.” On this point, the court specifically took 

into account the “safety and well-being of the [C]hildren,” as 

well as their “physical, mental or emotional condition and 

needs.” The court found that the Children need stability and an 

“assurance” that they “will be given care, treatment, and 

guidance that will assist them in developing into self-sufficient 

adults,” and determined that the Children were currently 

receiving that level of care with the foster parents. The court 

noted that it had specifically “considered and explored ‘less 

permanent arrangements’ such as custody and guardianship 

with a family member,” but that “[n]o such kinship is available.” 

As part of the best-interest inquiry, the court found it to be 

“strictly necessary” that Mother’s parental rights be terminated.

¶21 The court made specific findings about Mother’s 

improved behavior following her November incarceration. The 

court noted its duty to consider evidence of both current and 

past events, and to weigh whether Mother’s current improved 
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behavior overcame her poor past history. While acknowledging 

that Mother’s “progress since she was released from jail to 

[Treatment Facility] has been significant,” the court concluded 

that “the 6 months that she has been sober and participating in 

treatment does not overcome her lengthy history of drug abuse 

and neglect beginning in 2014 with . . . [A.M.] and her failure to 

respond to DCFS services at that time and for the first 9 months 

of this case.”

ISSUES AND STANDARDS OF REVIEW

¶22 Mother now appeals from the juvenile court’s order 

terminating her parental rights, and asks us to consider three 

issues. First, Mother challenges the court’s determination that 

statutory grounds for termination exist in this case. “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 E.A., 2018 UT 

App 83, ¶ 2, 424 P.3d 1169 (quotation simplified). Accordingly, 

we 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 leave[s] [us] with a firm and definite conviction 

that a mistake has been made.” In re B.R., 2007 UT 82, ¶ 12, 171 

P.3d 435 (quotation simplified). In sum, “when a foundation for 

the [juvenile] court’s decision exists in the evidence, an appellate 

court may not engage in a reweighing of the evidence.” Id.

¶23 Second, Mother takes issue with the juvenile court’s 

decision to admit and consider evidence regarding the previous 

termination of her parental rights to A.M., asserting that this 

evidence is impermissible “prior act” evidence barred by rule 

404(b) of the Utah Rules of Evidence. We review the juvenile 

court’s decision to consider this evidence under “a deferential 

standard of review” that acknowledges that trial court judges are
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“in a better position than we are to assess the avowed basis” for 

such evidence, “so the question for us is not whether we would 

have admitted this evidence,” but rather whether the court 

below “abused [its] broad discretion in doing so.” State v. 

Thornton, 2017 UT 9, ¶ 56, 391 P.3d 1016.

¶24 Finally, Mother appeals the court’s determination that 

termination of her parental rights was in the best interest of the 

Children. We afford a juvenile court’s best-interest decision “a 

high degree of deference,” see In re D.V., 2017 UT App 80, ¶ 11, 

397 P.3d 853, reversing only for “clear error,” which we find 

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,” In re K.J., 2013 UT App 237, ¶ 9, 327 P.3d 1203

(quotation simplified).

ANALYSIS

¶25 Utah courts apply a two-part test to determine whether to 

terminate parental rights, asking first “whether statutory 

grounds for termination are present,” and then “whether 

termination of the parent’s rights is in the best interest of the 

affected child.” In re B.T.B., 2018 UT App 157, ¶ 4, 436 P.3d 206

(quotation simplified), cert. granted, 440 P.3d 692 (Utah 2019). 

Courts terminate parental rights only when both of these 

elements are met and supported by clear and convincing 

evidence. See id. ¶ 13. In this case, the juvenile court found both 

parts of the test satisfied, and entered an order terminating 

Mother’s parental rights. Mother now challenges both parts of 

that order, and in addition complains that the court improperly 

considered evidence of her past parental experience with A.M.

A

¶26 Our legislature has authorized courts to terminate 

parental rights “if the court finds any one of” several statutory 
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grounds for termination. Utah Code Ann. § 78A-6-507(1)

(LexisNexis 2018). In this case, the juvenile court made findings 

that four of the enumerated statutory grounds were present. 

First, it found that Mother “ha[d] neglected” the Children. See id.

§ 78A-6-507(1)(b). Second, it found that Mother is “unfit or 

incompetent” to parent the Children. See id. § 78A-6-507(1)(c). 

Third, it found that the Children were being cared for in an outof-home placement; that Mother had “substantially neglected, 

willfully refused, or has been unable or unwilling to remedy the 

circumstances” that led to the Children being cared for in an outof-home placement; and that “there is a substantial likelihood 

that [Mother] will not be capable of exercising proper and 

effective parental care in the near future.” See id. § 78A-6-

507(1)(d). Fourth, it found that Mother had experienced a 

“failure of parental adjustment.” See id. § 78A-6-507(1)(e).

¶27 In challenging the court’s findings on statutory grounds, 

Mother spends the entirety of her energies discussing the 

manner in which the juvenile court weighed her past behavior 

against her current improved behavior. The interplay between 

Mother’s past behavior and her current improved behavior is 

certainly relevant to some of the statutory grounds, such as 

whether Mother “is unfit,” or perhaps whether there has been a 

“failure of parental adjustment.” See id. § 78A-6-507(1)(c), (e). It is 

also relevant (as discussed below) to our rule 404(b) inquiry and 

to the ultimate question of whether termination of parental 

rights is in the best interest of the Children. But it is not, by 

definition, relevant to the question of whether Mother “has 

neglected” the Children. See id. § 78A-6-507(1)(b).

¶28 “Has neglected” is a past-tense locution; it is by nature 

different than language asking a court to examine whether a 

parent is currently neglecting a child. We begin any statutory 

interpretation inquiry by examining the plain meaning of the 

language employed by the legislature. See, e.g., Anadarko 

Petroleum Corp. v. Utah State Tax Comm’n, 2015 UT 25, ¶ 11, 345 

P.3d 648 (stating that “[w]hen interpreting a statute, we look first 
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to the plain and ordinary meaning of its terms”). On its face, the 

past-tense nature of the language used indicates a legislative 

intent that past episodes of neglect, even if they occurred a while 

ago and even if the parent has since taken steps to improve her 

behavior, are enough to meet the statutory requirements. And 

our supreme court has held that the tense used—whether past or 

present—in statutory language is important. See Scott v. Scott, 

2017 UT 66, ¶¶ 1, 24, 423 P.3d 1275 (stating that “[a] statutory 

reading that credits a verb’s tense is not uncommon,” and 

determining that “is should mean is and not was or has been”); see

also Carr v. United States, 560 U.S. 438, 448 (2010) (stating that, 

“[c]onsistent with normal usage, we have frequently looked to 

Congress’ choice of verb tense to ascertain a statute’s temporal 

reach”). And this is in keeping with general rules of statutory 

interpretation, which require us to “presume that the legislature 

used each word advisedly,” see Scott, 2017 UT 66, ¶ 22 (quotation 

simplified), and to give meaning to each word used, wherever 

possible, see State v. Stewart, 2018 UT 24, ¶ 12, 438 P.3d 515.

¶29 The juvenile court found that Mother neglected the 

Children in February 2018 when she exposed M.M. to 

methamphetamine. Mother does not challenge this adjudication

on appeal, nor does she contend that her improved behavior 

following her November incarceration somehow changed the 

facts underlying the previous neglect finding. Because the 

legislature—by using the past-tense phrase “has neglected” 

instead of a present-tense phrase like “is currently neglecting”—

has mandated a lookback-style inquiry, an adjudicated and unappealed past act of neglect by a parent will by definition result 

in a judicial determination that the parent “has neglected” the 

child.2 And for the purposes of this inquiry, there is no need—at 

 

2. By contrast, the legislature chose to use present-tense 

language when discussing parental fitness. See Utah Code Ann. 

§ 78A-6-507(1)(c) (LexisNexis 2018) (stating that one statutory 

(continued...)
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least not at this stage—to engage in any weighing of a parent’s 

past behavior against a parent’s improved current behavior. 

Once neglect has occurred, a juvenile court is entirely justified in 

making a finding that a parent “has neglected” a child, even if 

that parent has improved herself since.3

 

(...continued)

ground for termination of parental rights is that “the parent is

unfit” (emphasis added)). Where unfitness (as opposed to 

neglect) is the statutory ground at issue, the question presented

is whether the parent, at the time of the termination trial, “is” a 

fit parent. Id. As part of this inquiry, a court will need to examine 

and weigh a parent’s previous acts that might demonstrate 

unfitness against any current acts that might demonstrate 

improvement. See In re M.L., 965 P.2d 551, 558, 560–62 (Utah Ct. 

App. 1998). The same may be true with regard to whether there 

has been a failure of parental adjustment, given statutory 

language mandating consideration of a parent’s compliance with 

a reunification plan. See Utah Code Ann. § 78A-6-508(5) (Supp. 

2019); see also In re M.L., 965 P.2d at 560–62. But with regard to 

those two statutory grounds, it is the language of the statute that 

mandates a present-tense inquiry; the same cannot be said of the 

“neglect” ground.

3. We recognize that, because many child welfare cases arise due 

to an act of abuse or neglect on the part of a parent, at least one 

statutory ground for termination of parental rights will be 

present in many, if not most, child welfare cases. Partly for this 

reason, we felt it important in In re B.T.B. to do away with the 

“almost automatically” line of cases and to restore the bestinterest prong of the termination of parental rights test to full 

strength, in order to give a parent who believes she has—in the 

time since the abuse or neglect occurred—improved her 

parenting and her bond with her child an opportunity to present 

(continued...)
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20190673-CA 14 2020 UT App 52

¶30 Mother’s failure to appeal either (a) the juvenile court’s 

original neglect adjudication or (b) the court’s later finding that 

Mother “has neglected” the Children results in Mother being 

unable to carry her burden of persuasion on appeal regarding 

statutory grounds for termination. The termination statute itself, 

as noted above, plainly states that the presence of “any one” 

statutory ground for termination is sufficient. See Utah Code 

Ann. § 78A-6-507(1). Interpreting that statute, we have held that 

the presence of a single statutory ground is sufficient to fulfill 

the first element of the termination test. See In re A.J., 2017 UT 

App 235, ¶ 26, 414 P.3d 541 (stating that “so long as sufficient 

evidence existed to support at least one of the grounds found by 

the court, the termination of [a parent’s] parental rights [is] 

appropriate”); In re S.M., 2017 UT App 108, ¶ 4, 400 P.3d 1201

(per curiam) (explaining that “the finding of a single [statutory] 

ground will support termination of parental rights”); In re H.H., 

2011 UT App 60, ¶ 2, 249 P.3d 582 (per curiam) (explaining that a 

juvenile court may terminate a parent’s rights “if the court finds 

any one of the grounds enumerated” in the statute (quotation 

simplified)). And “we will not reverse a ruling of [a lower] court 

that rests on independent alternative grounds where the 

appellant challenges [less than all] of those grounds.” See Kendall 

v. Olsen, 2017 UT 38, ¶ 12, 424 P.3d 12 (quotation simplified).

¶31 Accordingly, we reject Mother’s contention that none of 

the statutory grounds for termination is present here.

B

¶32 Next, Mother argues that the juvenile court should not 

have admitted and considered evidence regarding the 

 

(...continued)

evidence, at the best-interest stage, of her improved situation. See

In re B.T.B., 2018 UT App 157, ¶ 23 n.6, 436 P.3d 206, cert. granted, 

440 P.3d 692 (Utah 2019).
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termination of her parental rights to A.M. Mother maintains that

the admission of this evidence violated rule 404(b) of the Utah 

Rules of Evidence, but because that rule does not apply in this 

instance, we reject Mother’s argument.

¶33 Rule 404(b)(1) prohibits the admission of evidence 

relating to a crime, wrong, or other act “to prove a person’s 

character in order to show that on a particular occasion the person 

acted in conformity with the character.” Utah R. Evid. 404(b)(1)

(emphasis added). Typically, this rule functions to prevent the 

admission of past acts as evidence of a person’s propensity 

to act, on a particular occasion, in conformity with a character 

trait.

¶34 But in this case, as the GAL correctly notes, the evidence 

in question “was not admitted to prove Mother’s actions ‘on a 

particular occasion’ but to prove her general incompetency and 

unfitness over a period of time.” Indeed, the evidence was 

admitted to help the court assess a number of inquiries that were 

not necessarily connected to any single occasion, including 

whether Mother was currently fit to parent the Children

and whether termination of parental rights would be in 

the Children’s best interest.4 In these sorts of inquiries, 

consideration of a parent’s past actions is not only allowed, but 

encouraged, both by the Juvenile Court Act and by case law

interpreting it.

 

4. We acknowledge that rule 404(b) could potentially be relevant 

in juvenile court child welfare cases, depending on how the 

evidence is used. A different admissibility question would be 

presented if, for instance, a juvenile court were asked to 

adjudicate whether a parent committed an act of abuse on a 

particular occasion and, in an attempt to prove that the parent 

committed the act in question, the State wished to present 

evidence that the parent committed a past act of abuse on a 

different victim on a different occasion.
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¶35 In parental termination cases in which a parent’s fitness 

is at issue, our legislature requires courts to consider a 

parent’s “habitual or excessive use of intoxicating liquors, 

controlled substances, or dangerous drugs,” as well as a 

parent’s “history of violent behavior.” Utah Code Ann. § 78A-6-

508(2)(c), (f) (Supp. 2019). And when parental fitness is at issue, 

we have often affirmed a juvenile court’s consideration of 

evidence of a parent’s past acts, including past drug use and 

past abuse of siblings. See, e.g., In re R.B., 2012 UT App 37, ¶ 4, 

271 P.3d 827 (stating that “a parent’s habitual substance 

abuse and repeated or continuous failure to appropriately care 

for and provide for the needs of her children” may be indicative 

of a parent’s unfitness (quotation simplified)); In re J.S.P., 2010 

UT App 10U, para. 6 (per curiam) (affirming a termination order 

based, in part, on the parent’s previous abuse of the child’s 

sibling); In re J.B., 2002 UT App 267, ¶ 24, 53 P.3d 958 (affirming 

a termination order based, in part, on previously adjudicated 

facts involving the child’s siblings); In re E.K., 913 P.2d 771, 

776 (Utah Ct. App. 1996) (affirming a juvenile court’s exercise 

of jurisdiction over a younger sibling in part because of a 

recent adjudication of serious abuse of other children). In this 

case, this evidence was also considered in connection with 

the best-interest part of the termination test, and that is a 

wide-ranging inquiry that asks a court to weigh the entirety 

of the circumstances, including a parent’s past behavior, to

determine what is in the best interest of the child under 

all of the circumstances. See In re B.T.B., 2018 UT App 157, ¶ 47–

50.

¶36 Mother has not demonstrated that rule 404(b) operates

to keep a juvenile court from considering a parent’s past acts 

in connection with a fitness or a best-interest inquiry. 

Therefore, in this case, the court’s consideration of the 

circumstances involving Mother’s loss of rights to A.M. was 

entirely appropriate, and we reject Mother’s argument to the 

contrary.
In re J.M.

20190673-CA 17 2020 UT App 52

C

¶37 Finally, Mother takes issue with the juvenile court’s 

conclusion that termination of her parental rights was in the best 

interest of the Children. Once a court finds a statutory ground 

for termination, it must next address the second part of the test 

by determining whether severing a parent’s rights is in the best 

interest of the child. “The best interest of the child has always 

been a paramount or polar star principle in cases involving 

termination of parental rights.” In re J.P., 648 P.2d 1364, 1368 

(Utah 1982) (quotation simplified). And, as noted above, 

determining a child’s best interest requires a court to undergo a 

comprehensive review of the unique and specific conditions a 

child faces in any given case. See In re B.T.B., 2018 UT App 157, 

¶ 47–50. Accordingly, the juvenile court’s inquiry into a child’s 

best interest is necessarily quite “broad, and is intended as a 

holistic examination of all of the relevant circumstances that 

might affect a child’s situation,” and includes an analysis of “the 

physical, intellectual, social, moral, and educational training and 

general welfare and happiness of the child.” Id. ¶ 47 (quotation 

simplified). The breadth of this “subjective assessment based on 

the totality of the circumstances surrounding the child” has 

“never been diminished” and remains a “paramount 

consideration in cases involving termination of parental rights.” 

Id. (quotation simplified).

¶38 The juvenile court heard evidence in this case that cut 

both ways on the best-interest question. On the one hand, the 

court heard evidence that Mother, chiefly through her 

uncontrolled substance use, had endangered her children on 

previous occasions. Two of her three children had been exposed 

to methamphetamine while in utero. She continued to use 

methamphetamine after the birth of the Children, which led to 

the February 2018 episode in which methamphetamine was 

found in M.M.’s urine. Even after that episode, which resulted in 

the Children being taken from her, Mother did very little over 

the next nine months to comply with the plan that the juvenile 
In re J.M.

20190673-CA 18 2020 UT App 52

court set out that would enable her to be reunited with the 

Children. Mother continued to use methamphetamine, failed to 

seek and complete drug treatment, and committed multiple 

violations of her criminal probation. The court also considered 

evidence that the Children were happy and well-adjusted with 

the foster parents, who are ready and willing to adopt them, a 

placement that would unify them with their half-sibling A.M.

¶39 On the other hand, the juvenile court heard evidence that 

Mother’s November 2018 incarceration functioned as a real 

wake-up call for her. Between November 2018 and the time of 

trial in June 2019, Mother’s behavior was nothing short of 

exemplary. With the able assistance of personnel both at the jail 

and at Treatment Facility, Mother was not only able to complete 

an inpatient substance use treatment program, but was also able 

to get a GED, obtain new parenting skills, and continue building 

her bond with the Children. Indeed, the evidence presented was 

that, after the court terminated reunification services in 

December 2018, Mother completed each and every item in her 

child and family plan, without the benefit of any services from 

DCFS. At trial, some of the counselors who worked with Mother 

at Treatment Facility testified that Mother had been very 

successful in their program, that she had learned a lot of the 

skills necessary to succeed after returning to the community, and 

that they had high hopes for her success.

¶40 Presented with evidence like this, the juvenile court could 

have reasonably gone either way on the best-interest question. 

Indeed, after In re B.T.B., it no longer follows “almost 

automatically” from a finding of statutory grounds that it is in 

the best interest of the child to terminate a parent’s rights. See In 

re B.T.B., 2018 UT App 157, ¶ 44. Even though a statutory 

ground for termination (neglect) is present here, the juvenile 

court could potentially have determined that the best interest 

evidence militated in the other direction, and could have 

therefore declined to terminate parental rights. Given Mother’s 

significant progress following her incarceration, there exists 
In re J.M.

20190673-CA 19 2020 UT App 52

sufficient evidence in this record to support such a

determination, or at least a determination that Mother’s 

termination trial should have been postponed for a few months 

to give Mother a longer post-treatment probationary period.

¶41 But the juvenile court decided to terminate, concluding 

that it was in the Children’s best interest to terminate Mother’s 

rights. The court made extensive findings supporting its 

conclusion, and was ultimately swayed by several factors, 

including Mother’s lengthy past history of substance use and 

relatively short (four-week) history of sobriety outside the 

context of an inpatient treatment facility, and the positive 

experience the Children were having with the same foster 

parents who had previously adopted A.M. The court 

emphasized the need for the Children to find stability and 

permanence, and ultimately found that those goals were best 

furthered through termination and adoption.

¶42 Each of us might not have reached the same decision that 

the juvenile court reached, had we been in the juvenile court’s 

position. But that does not make the court’s decision reversible. 

Our court has recognized that “the juvenile court is in the best 

position to weigh conflicting testimony, to assess witness 

credibility, and from such determinations, to render findings of 

fact” and, therefore, “an appellate court should not substitute its 

own judgment for that of the juvenile court’s judgment in 

matters relating to termination proceedings.” In re B.O., 2011 UT 

App 215, ¶ 2, 262 P.3d 46 (per curiam). In reviewing cases like 

this one, we “must be capable of discriminating between 

discomfort over a trial court’s findings of fact—which [an 

appellate court] must tolerate—and those [situations] that 

require a court’s intercession.” See In re B.R., 2007 UT 82, ¶ 12, 

171 P.3d 435 (quotation simplified). And the standard of review 

we apply in these cases is so deferential that we must “forebear 

disturbing the close call,” even if we may view the facts in a 

different light. Id. (quotation simplified); see also id. ¶ 14 (“Simply 

because an appellate court may have come to a different result 
In re J.M.

20190673-CA 20 2020 UT App 52

had it been the initial trier of fact does not permit it to reverse 

the juvenile court absent a firm and definite conviction that the 

court’s decision was against the clear weight of the evidence.”); 

Gunn Hill Dairy Props., LLC v. Los Angeles Dep’t of Water & Power, 

2015 UT App 261, ¶ 21, 361 P.3d 703 (Orme, J., concurring) 

(stating that “standards of review really do matter,” and noting

that two of the judges on the panel were “affirming the trial 

court’s decision—not because [they thought] it was the right 

decision but because of [the] deferential standard of review”).

¶43 The juvenile court’s best-interest decision was supported 

by competent findings and by record evidence. Accordingly, we 

defer to the juvenile court’s ultimate determination. See In re

C.T., 2018 UT App 233, ¶ 11, 438 P.3d 100.

CONCLUSION

¶44 Statutory grounds existed to support a termination order, 

given the juvenile court’s unchallenged adjudication of neglect. 

The juvenile court properly considered Mother’s history with 

A.M. in assessing Mother’s fitness as a parent and in evaluating 

the best interest of the Children. While the best-interest inquiry 

appears to have been a close call, the juvenile court’s finding is 

supported by evidence and articulated findings, and is therefore 

not subject to reversal under applicable standards of review. We

therefore affirm the juvenile court’s termination order.