STATE OF UTAH, IN THE INTEREST OF A.R., R.R., AND V.R., PERSONS UNDER EIGHTEEN YEARS OF AGE.
State of Utah, Appellee. E.R., Appellant,
District Juvenile Court, Salt Lake Department The Honorable
Kimberly K. Hornak No. 1155663
Colleen K. Coebergh, Attorney for Appellant.
D. Reyes, Carol L. C. Verdoia, and John M. Peterson,
Attorneys for Appellee.
Pierce, Guardian ad Litem.
Judges Michele M. Christiansen Forster, David N. Mortensen,
and Ryan M. Harris.
E.R. (Father) appeals a decision awarding permanent custody
and guardianship of his children to their paternal
grandmother. Father asks this court to reverse the grant of
permanent custody and guardianship and remand with a
direction to enter an order of temporary custody and
guardianship in the paternal grandmother pending further
proceedings. We affirm the juvenile court's decision.
Father does not challenge the juvenile court's
determination of his unfitness as a parent due to his
untreated mental illness. The sole issue raised on appeal is
a claim that the juvenile court's award of permanent
custody and guardianship of the children to their paternal
grandmother was erroneous because In re B.T.B., 2018
UT App 157, 436 P.3d 206, required the court to preserve the
possibility of rehabilitation of the parent-child
relationship as well as a future restoration of custody to
The case was before the juvenile court on the Guardian ad
Litem's (GAL) petition to terminate Father's parental
rights to allow the children to be adopted. In contrast, the
State advocated for an award of permanent custody and
guardianship to the paternal grandmother with whom the
children had resided throughout the child welfare case. The
paternal grandmother wanted to be the children's
permanent guardian rather than adopt them. The State had
withdrawn its earlier petition to terminate Father's
parental rights and thereafter requested an award of
permanent custody and guardianship to the paternal
grandmother. Father joined in the State's recommendation.
During the trial on the termination petition, Father's
counsel stated, "I would submit that at the very least
what this court could do [is] grant permanent custody and
guardianship in the grandmother and close the case."
Father's counsel also acknowledged that, under current
Utah law, "if my client loses permanent custody and
guardianship in this case, he cannot [petition to] get his
children back." See Utah Code Ann. §
78A-6-1103(3)(b) (LexisNexis 2018). Father would, however,
retain residual rights that would include rights to
visitation. The court awarded permanent custody and
guardianship of the children to their paternal grandmother.
Notwithstanding his position at the termination trial, Father
asserts that he has preserved a challenge to the permanent
custody and guardianship award by filing an appeal. This is
insufficient to preserve the issue for consideration on
appeal. An issue is preserved for appeal when it has been
presented to the juvenile court in such a way that the court
has the opportunity to rule on it. See In re D.B.,
2012 UT 65, ¶ 17, 289 P.3d 459. "To provide the
court with this opportunity, the issue must be specifically
raised by the party asserting error, in a timely manner, and
must be supported by evidence and relevant legal
authority." Id. (quotation simplified).
Although the record reflects that the juvenile court and the
parties discussed the requirement of B.T.B. to
consider alternatives other than terminating Father's
parental rights, Father did not raise the argument that he
makes in this appeal. In fact, Father's counsel
specifically requested an award of permanent custody and
guardianship in the paternal grandmother in opposing the
GAL's petition to terminate his parental rights.
But even assuming that Father did preserve the issue,
Father's argument is based upon a mistaken interpretation
of B.T.B. Father relies on this court's
statement in B.T.B. that the juvenile court should
"consider whether other less-permanent arrangements . .
. might serve the child's needs just as well in the short
term, while preserving the possibility for rehabilitation of
the parent-child relationship in the longer term."
In re B.T.B., 2018 UT App 157, ¶ 55. Father
claims that B.T.B. required the juvenile court to
make the award of custody and guardianship only temporary to
allow him the possibility to regain custody in the future.
B.T.B. contains no such requirement; remedies short
of termination, that preserve the parent-child relationship
in some fashion, can take any one of several forms, including
the one the juvenile court selected in this case: a permanent
guardianship arrangement in which the parent retains the
right to visitation, even if the parent no longer has the
right to petition for a restoration of custody. Indeed, as
this court recently clarified, "B.T.B. simply
stands for the proposition that juvenile courts must consider
or explore alternatives to termination of parental rights
before they may find that termination is 'strictly
necessary' to the best interests of the child."
In re C.T., 2018 UT App 233, ¶ 16, 438 P.3d 100
(quotation simplified). "After this consideration, if a
juvenile court determines that no such alternatives are
available or articulates supported reasons for rejecting
alternatives that do exist, such findings are entitled to
deference on appeal." Id. In this case, the
juvenile court not only considered alternatives to
termination, the court selected one of those alternatives by
awarding permanent custody and guardianship to the paternal
grandmother. In this case, the juvenile court complied with
B.T.B.'s requirement that it consider
alternatives to termination, and the juvenile court's
well-articulated reasons supporting its award of permanent
custody and guardianship in a relative are entitled to
deference. See id., ¶ 17.
Accordingly, we affirm the award of permanent custody and
guardianship of the ...