In re A.K., 2022 UT App 148

Podcast Interviews and Other Sources

Podcast Interviews

Oral Argument

Briefing Documents

Plura pertinentia mox sequentur. Quaeso, redi mox.

Coverage

Facts

Parties and Procedural Posture

• Father appealed the juvenile court’s order terminating his parental rights in Child; the State of Utah, through the Attorney General’s Office, was the appellee, and a Guardian ad Litem participated on Child’s behalf.
• The juvenile court found multiple grounds for termination, and Father did not challenge any of those statutory grounds on appeal.
• Father’s sole appellate challenge concerned the best-interest and strictly-necessary determinations, with Father urging permanent custody and guardianship with Foster Parents as a less drastic alternative to termination.

Father’s History with Family Members and Prior Caregivers

• Trial testimony showed that Father had lived with various family members as an adult, usually for only months at a time before conflict led to his departure.
• Father’s father (Grandfather) testified that he allowed Father to live with him for periods of time on the condition that Father maintain employment, and that Father usually left after several months because he rarely held a job longer than that.
• In 2019, following a conflict with his brother (Uncle), Father removed Child from Uncle’s home; Father and Child then stayed with Grandfather but left after a few months, even though Father could have left Child there to give her stability.
• The juvenile court noted Father’s failure to make choices for Child’s benefit, such as permitting family to help rather than leaving Child homeless and cut off from support.
• Father and Uncle re-established their relationship shortly before trial.

Foster Placement and Visitation

• Foster Mother testified that she had not had a conversation with Father during the entire time Child had been in the foster home, and that her contact with Father was limited to passively monitoring visitation.
• Foster Mother testified that Child struggled somewhat with virtual visits and did not request visits with Father.
• Foster Mother testified that Foster Parents were committed to maintaining Child’s relationship with Father but wanted more control to ensure that any contact was in Child’s best interest, taking Child’s own choice into consideration.

Mediation

• Father’s counsel requested mediation, and the juvenile court ordered it, but Father did not participate; Father maintained that mediation is generally for the purpose of relinquishing parental rights and that he had no intent to relinquish.

Siblings and Extended Family

• Father’s two older children were in a permanent custody and guardianship with Father’s sister (Aunt), and Father had a good relationship with Child.
• The juvenile court’s order referenced Aunt’s custody of the older children and acknowledged the loving bond between Father and Child among the specific factors in its best-interest analysis.
• The juvenile court found that Foster Parents were more likely than Father to provide Child with an opportunity for a more stable and consistent relationship with her siblings and other healthy biological family members.

The Juvenile Court’s Guardianship Framework

• The juvenile court reasoned that permanent custody and guardianship is typically in a child’s best interest where the guardians and the parent have a working, relatively healthy relationship, are willing to work together to preserve the parent-child relationship, and the child has a healthy relationship with both.
• Applying that framework, the juvenile court found that Father did not have a working relationship with Foster Parents and was not likely to be able to maintain one.

Issues of the Case

• Termination of Parental Rights — Best Interests of the Child

  Best Interest / Strictly Necessary — Permanent Custody and Guardianship Alternative

  Claim on Appeal: Father argued that the juvenile court’s strictly-necessary analysis was “incomplete and incorrect,” that Child should have been placed in a permanent custody and guardianship with Foster Parents, and that the court’s focus on Father’s relationship with Foster Parents “turned its focus away from the best interests of Child.” Father further argued that his non-participation in mediation should not weigh against him because mediation is generally aimed at relinquishment.

  Holding: — Affirmed. The juvenile court’s findings regarding Father’s relationship with Foster Parents were tied to Child’s best interest as a whole, and the evidence supported its finding that no working relationship existed that would make a permanent custody and guardianship arrangement feasible.

  Statutory Authority: No Utah Code section is cited in the opinion. The court refers generally to the “statutory ground” for termination and the juvenile court’s “statutory obligations” in making its best-interest determination; the governing framework is Utah’s termination-of-parental-rights statutes, now codified in Utah Code Title 80, Chapter 4 (formerly Title 78A, Chapter 6, Part 5), which were not quoted or analyzed by the court.

  Standard of Review:

  • Deferential (“clear weight of the evidence”) — the best-interest determination, which is overturned only if the juvenile court failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.
  • Deference with an exacting focus on the proper evidentiary standard — the juvenile court’s factual determinations receive deference, while its conclusions are reviewed with an exacting focus on the clear-and-convincing standard.

  Controlling Cases:

  • In re B.T.B., 2020 UT 60, 472 P.3d 827 (once a statutory ground is found, the child’s welfare and best interest take precedence; analysis is undertaken from the child’s point of view; the strictly-necessary requirement ensures the court pauses to consider the range of available options, ¶¶ 61, 64, 69)
  • In re B.W., 2022 UT App 131 (a best-interest determination is entitled to deference if the court complied with its statutory obligations, ¶ 69)
  • In re J.J.W., 2022 UT App 116, 520 P.3d 38 (best-interest determination overturned only if the court failed to consider all facts or ruled against the clear weight of the evidence, ¶ 18)
  • In re E.R., 2021 UT 36, 496 P.3d 58 (source of the deferential best-interest standard of review, ¶ 31)
  • In re C.T., 2018 UT App 233, 438 P.3d 100 (two-step termination framework and strictly-necessary requirement, ¶ 12)

  Why It Matters: The opinion confirms that the quality of the working relationship between a biological parent and prospective guardians is a legitimate, child-centered consideration when a court evaluates permanent custody and guardianship as an alternative to termination. A parent advocating for guardianship must therefore be prepared to show a functional, cooperative relationship with the proposed guardians. The opinion also signals that declining court-ordered mediation — which the court described as an opportunity to negotiate arrangements other than relinquishment — may be treated as evidence of disengagement.

• Termination of Parental Rights — Best Interests of the Child

  2. Best Interest — Consideration of Historical Family Conflict (Present-Tense Inquiry)

  Claim on Appeal: Father argued that the juvenile court improperly relied on his 2019 conflict with Uncle, because the two had re-established their relationship shortly before trial, and that considering that conflict was “improperly backwards facing” in light of the principle that the best-interest inquiry is conducted in “present-tense fashion.”

  Holding: — Affirmed. Father misstated the juvenile court’s findings, which rested on a long-standing pattern of conflict with family members rather than solely on the 2019 incident, and the present-tense inquiry does not require a court to ignore historical patterns.

  Statutory Authority: No Utah Code section is cited in the opinion. The court refers generally to the “statutory ground” for termination and the juvenile court’s “statutory obligations” in making its best-interest determination; the governing framework is Utah’s termination-of-parental-rights statutes, now codified in Utah Code Title 80, Chapter 4 (formerly Title 78A, Chapter 6, Part 5), which were not quoted or analyzed by the court.

  Standard of Review:

  • Deferential (“clear weight of the evidence”) — the best-interest determination, which is overturned only if the juvenile court failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.
  • Deference with an exacting focus on the proper evidentiary standard — the juvenile court’s factual determinations receive deference, while its conclusions are reviewed with an exacting focus on the clear-and-convincing standard.

  Controlling Cases:

  • In re B.R., 2007 UT 82, 171 P.3d 435 (in termination cases, the juvenile court must weigh a parent’s past conduct with present abilities, ¶ 13)
  • In re Z.C.W., 2021 UT App 98, 500 P.3d 94 (best-interest inquiry is generally conducted in present-tense fashion, ¶ 12; relied upon by Father and held to be overstated)
  • In re J.J.W., 2022 UT App 116, 520 P.3d 38 (deferential best-interest review, ¶ 18)

  Why It Matters: The opinion limits the reach of the Z.C.W. “present-tense” principle: evaluating a child’s best interest as of trial does not require disregarding a parent’s historical patterns of conduct. Recent reconciliation with a single family member will not neutralize a documented, long-term pattern of conflict with caregivers. The court also reiterated that a parent’s disagreement with the weight given to evidence is not the same as the evidence being improperly considered.

• Termination of Parental Rights — Best Interests of the Child

  3. Best Interest — Weight of Evidence Favorable to Father

  Claim on Appeal: Father argued that the juvenile court failed to consider that his two older children were in a permanent custody and guardianship with Aunt, that he had a good relationship with Child, and that termination would sever Child’s legal bond with her siblings.

  Holding: — Affirmed. The juvenile court’s thorough order expressly referenced Aunt’s custody of the older children, acknowledged the loving bond between Father and Child, and found that Foster Parents were more likely to foster Child’s sibling relationships; Father’s challenge went to the weight of the evidence, not a failure to consider it.

  Statutory Authority: No Utah Code section is cited in the opinion. The court refers generally to the “statutory ground” for termination and the juvenile court’s “statutory obligations” in making its best-interest determination; the governing framework is Utah’s termination-of-parental-rights statutes, now codified in Utah Code Title 80, Chapter 4 (formerly Title 78A, Chapter 6, Part 5), which were not quoted or analyzed by the court.

  Standard of Review:

  • Deferential (“clear weight of the evidence”) — the best-interest determination, which is overturned only if the juvenile court failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.
  • Deference with an exacting focus on the proper evidentiary standard — the juvenile court’s factual determinations receive deference, while its conclusions are reviewed with an exacting focus on the clear-and-convincing standard.

  Controlling Cases:

  • In re J.J.W., 2022 UT App 116, 520 P.3d 38 (court could not conclude the juvenile court failed to consider all the facts or ruled against the clear weight of the evidence, ¶ 18)
  • In re E.R., 2021 UT 36, 496 P.3d 58 (deferential best-interest standard, ¶ 31)
  • In re B.W., 2022 UT App 131 (deference where statutory obligations are satisfied, ¶ 69)
  • In re B.T.B., 2020 UT 60, 472 P.3d 827 (strictly-necessary analysis requires consideration of the range of available options, ¶ 69)

  Why It Matters: A detailed order that expressly addresses the evidence favorable to the parent — including the parent–child bond, existing family guardianships, and sibling relationships — is highly insulated from reversal. The existence of a permanent guardianship for a parent’s other children does not compel the same outcome for a different child whose circumstances and relationships differ. The sibling-bond argument is also blunted where the court finds that the adoptive placement is more likely to preserve sibling contact than the parent would be.

Rules of Evidence

Utah Codes

Rules of Civil Procedure

Utah Code of Judicial Administration

Utah Rules of Appellate Procedure

Utah Rules of Professional Conduct

Case Cited

Litigation and Appellate Strategy

Reversal Predictor

• The juvenile court’s order is conclusory or omits any discussion of alternatives to termination, such as permanent custody and guardianship.
• The order fails to acknowledge significant evidence favorable to the parent, such as a strong parent–child bond or sibling relationships.
• The court relies exclusively on stale or isolated past incidents without assessing the parent’s present abilities.
• The court rejects a guardianship alternative for reasons untethered to the child’s welfare.
• The record reveals a functional, cooperative relationship between the parent and proposed guardians that the court disregards.
• The court’s conclusions reflect a misapplication of the clear-and-convincing standard.

Mandatory Factor Checklist

The opinion does not enumerate statutory factors; the following requirements are drawn from the case law on which it relies.

• At least one statutory ground for termination, found by clear and convincing evidence (In re C.T.).
• A best-interest determination undertaken from the child’s point of view, with the child’s welfare taking precedence (In re B.T.B.).
• A strictly-necessary analysis reflecting thoughtful consideration of the range of available options, including permanent custody and guardianship (In re B.T.B.).
• For a guardianship alternative: whether the parent and guardians have a working relationship, whether they are willing to preserve the parent–child relationship, and whether the child has a healthy relationship with both (juvenile court framework, approved on appeal).
• A weighing of the parent’s past conduct with present abilities (In re B.R.).
• Express consideration of evidence favorable to the parent, including the parent–child bond, sibling relationships, and existing family placements (In re J.J.W.).

Signal Cluster (High-Risk Appeal Profile)

An appeal of a termination order is most viable when several of the following appear together:

• A proposed guardian who has a documented, cooperative relationship with the parent.
• A juvenile court order that does not address guardianship or other less drastic alternatives.
• Findings that rest on a single, remote incident rather than a sustained pattern.
• Significant evidence of the parent’s present rehabilitation or stability that the order does not weigh.
• An unaddressed risk of severing sibling or extended-family relationships.

In re A.K. presented the opposite profile: an unchallenged set of statutory grounds, a detailed order, a long-term pattern of family conflict, disengagement from foster parents, and express findings on the favorable evidence.

Strategy Insight

• Father framed his appeal as a failure to consider evidence, but the record showed the juvenile court had considered it and weighed it against him. Once the court of appeals characterizes an argument as a disagreement over weight, deferential review is effectively dispositive.
• An appeal of a best-interest determination should be framed, where the record allows, as a legal error — a failure to perform the T.B. strictly-necessary analysis, a misapplied evidentiary standard, or an omission of material evidence — rather than as a request to reweigh the evidence.

Teaching Value

• As a concise per curiam decision, In re A.K. is a useful teaching vehicle for the modern Utah termination framework: the two-step analysis, the T.B. strictly-necessary requirement, the E.R. standard of review, and the interplay between Z.C.W. and B.R. on the temporal scope of the best-interest inquiry.

Insights

Utah-Only Jurisprudence

• The opinion relies exclusively on Utah authority: four Utah Supreme Court decisions (T.B., E.R., G.D., B.R.) and four Utah Court of Appeals decisions (C.T., J.J.W., B.W., Z.C.W.).
• No out-of-state, federal, or secondary authority is cited, and no Utah Code section or court rule is quoted or analyzed; the decision is built entirely on Utah’s established termination case law.

Doctrinal Anchors (Utah Supreme Court)

• In re B.T.B., 2020 UT 60, 472 P.3d 827 — Established: Once a statutory ground is found, the child’s welfare and best interest take precedence; the analysis is conducted from the child’s point of view; and the strictly-necessary requirement obliges the court to pause and consider the range of available options. Role: Supplies the framework under which the court evaluated whether permanent custody and guardianship was a viable alternative.
• In re E.R., 2021 UT 36, 496 P.3d 58 — Established: The deferential standard for reviewing best-interest determinations (failure to consider all facts, or a decision against the clear weight of the evidence). Role: The controlling standard that defeated each of Father’s weight-based arguments.
• In re G.D., 2021 UT 19, 491 P.3d 867 — Established: While factual determinations receive deference, conclusions are reviewed with an exacting focus on the proper evidentiary standard. Role: Frames the outer limit of appellate deference in termination cases.
• In re B.R., 2007 UT 82, 171 P.3d 435 — Established: A juvenile court must weigh a parent’s past conduct with present abilities. Role: Used to reject Father’s argument that consideration of his historical family conflict was improperly “backwards facing.”

The Most Important Holding

• In evaluating whether permanent custody and guardianship is a less drastic alternative to termination, a juvenile court may properly assess whether the parent and prospective guardians have a working, relatively healthy relationship, and doing so keeps — rather than diverts — the court’s focus on the child’s best interest.
• Because guardianship preserves the parent–child relationship and depends on ongoing cooperation between parent and guardian, evidence of disengagement (no direct communication, declined mediation) and a pattern of conflict with prior caregivers can reasonably support a finding that guardianship is not feasible and that termination is strictly necessary.

The “Present-Tense” Inquiry Does Not Erase History

• The court held that Father overstated the C.W. present-tense principle; determining a child’s best interest as of trial does not require ignoring historical patterns.
• Under R., past conduct is weighed against present abilities. A last-minute reconciliation with one family member does not negate a long-term, well-documented pattern of conflict with caregivers.

Mediation Participation as Evidence of Engagement

• The court rejected Father’s premise that mediation is limited to relinquishment, describing it as an opportunity to resolve a child welfare case without trial, including by negotiating other arrangements for the child’s benefit.
• Because Father’s own counsel requested the mediation and the court ordered it, Father’s non-participation was properly treated as evidence of a lack of engagement with Foster Parents.

Reversal Based on Legal Error vs. Factual Error

• The termination order was affirmed in full. Each of Father’s arguments was, at bottom, a disagreement with the weight the juvenile court assigned to the evidence, which is not a basis for reversal under R. and J.J.W.
• Reversal would have been more likely had the juvenile court (a) failed to consider evidence favorable to the parent at all; (b) reached a decision against the clear weight of the evidence; (c) failed to consider the range of available alternatives, as T.B. requires; (d) relied on past conduct without weighing present abilities; or (e) failed to apply the clear-and-convincing standard with the rigor G.D. demands.

Practitioner Takeaways

Trial Lawyers (Parent’s Counsel)

• If proposing permanent custody and guardianship as an alternative, build an affirmative record of a cooperative relationship with the proposed guardians — direct communication, joint planning, and a demonstrated willingness to work together.
• Advise the client to participate in court-ordered mediation; non-participation, particularly after counsel requests mediation, will be read as disengagement.
• Present evidence of sustained change in present abilities rather than relying on recent reconciliation with a single family member to rebut a long-term pattern.

Trial Lawyers (State and Guardian ad Litem)

• Develop testimony from foster parents on the nature and frequency of contact with the parent, the child’s response to visits, and the foster parents’ willingness to maintain the parent–child relationship on appropriate terms.
• Document the parent’s history with prior caregivers through family testimony, so that the pattern is shown to be long-standing rather than tied to a single incident.
• Request findings that expressly address the evidence favorable to the parent (bond, sibling placements, extended family) and explain why it does not outweigh the case for termination.

Appellate Lawyers

• Arguments that the juvenile court gave insufficient weight to favorable evidence rarely succeed against a detailed order; identify instead a concrete failure to consider evidence, a misapplied legal standard, or a failure to analyze available alternatives.
• Characterize the juvenile court’s findings accurately; the court here noted that Father “misstate[d]” the findings by treating a broad pattern as a single incident.
• Invoke C.W. cautiously; it must be read together with B.R.‘s requirement that past conduct be weighed with present abilities.

Foster Parents and Prospective Guardians

• Testimony expressing commitment to preserving the child’s relationship with the biological parent, while seeking control over contact in the child’s interest, can support both adoption and a finding that foster parents will foster sibling and family relationships.