In re H.C.

2022 UT App 146
THE UTAH C OURT OF APPEALS
I N THE INTEREST OF H.C.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.
A.B.,
Appellant,
v.
R.C.,
Appellee.
Opinion
No. 20220001-CA
Filed December 22, 2022
Fourth District Juvenile Court, Provo Department
The Honorable Suchada P. Bazzelle
No. 1188649
Emily Adams and Sara Pfrommer,
Attorneys for Appellant
Scott N. Weight, Attorney for Appellee
Martha Pierce, Guardian ad Litem
JUDGE GREGORY K. O RME authored this Opinion, in which
JUDGES M ICHELE M. C HRISTIANSEN F ORSTER and
R YAN D. TENNEY concurred.
ORME, Judge:
¶1 	A.B. (Mother) appeals the juvenile court’s termination of
reunification 	services 	and 	grant 	of 	permanent 	custody 	and
guardianship of her minor son, H.C. (Child), to his father, R.C.
(Father). We affirm.

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BACKGROUND
¶2 	Child was born in 2013. Mother and Father later filed for
divorce and, in 2016, entered a stipulation regarding parent-time.
The stipulation provided that Child would “primarily reside with
Mother” in Utah and that he would have parent-time with Father
in Florida for four weeks during the summer and would spend
alternating Christmas holidays with Father.
¶3 	In June 2020, Child visited Father in Florida for Father’s
four-week parent-time. There, Child told Father that “he was
getting hit with a belt and a hanger” at home and that Mother’s
husband 	(Stepfather) 	punched 	him 	in 	the 	stomach. 	Father
reported the allegation to Utah’s Division of Child and Family
Services 	(DCFS). 	DCFS’s 	further 	investigation 	revealed 	that
Stepfather would scream at Child, strike him with a belt, and
punch and “whoop” him. The investigation also revealed that
Mother spanked Child with her hand, a hanger, or a spatula, often
leaving behind red marks where Child was struck.
¶4 	Toward the end of June, the State filed a Verified Petition
for Protective Supervision, in which it described what DCFS’s
investigation revealed.1 Following a hearing in early July, the
juvenile 	court 	placed 	Child 	under 	temporary 	protective
supervision services and ordered that Child remain in Florida
with Father.
¶5 	In August 2020, Father filed for temporary custody of
Child. In a subsequent hearing, the court declined to rule on the
motion until Mother and Stepfather’s case was adjudicated. But
after Father asserted that the purpose of the motion was to ensure
1. The petition sought protective services for Child and for three
other children who resided with Mother and Stepfather. Because
the other three children are not the subject of this appeal, we limit
our recounting of the facts to Child’s case.

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that he could enroll Child in school that year without Mother’s
interference, the court granted temporary custody of Child to
Father “until the allegations of abuse of [Child] are conclusively
determined by the Court.” It reiterated that Father’s “motion for
custody will not be considered at this time, but may be considered
after adjudication.”
¶6 	The following month, DCFS submitted a child and family
plan to the court, which required, among other things, that
Mother 	and 	Stepfather 	attend 	parenting 	courses, 	complete
psychological evaluations, and complete the recommendations
resulting from the psychological evaluations. Mother and Father
indicated that they agreed with the plan. The court set the primary
permanency goal for Child as “reunification with his Mother” and
set a concurrent goal of “permanent custody and guardianship
with a relative,” which the court stated Father “of course . . .
would qualify as.”2 The court also adjudicated Child dependent
as to Father.3
¶7 	In December 2020, the State filed an Amended Verified
Petition for Protective Supervision, in which it again alleged that
Stepfather spanked and punched Child in the stomach, screamed
at Child, and would “whoop” Child. The petition also again
2. The court is correct that Father is related to Child by reason of
being his natural parent. See Utah Code Ann. § 80-3-302(1)(a)(iii)
(LexisNexis 	Supp. 	2022) 	(defining 	“natural 	parent” 	as 	“a
biological father of the child who . . . was married to the child’s
biological mother at the time the child was conceived”). But
“natural parent” is not found in the definition of “relative” under
Utah Code section 80-3-102(6). See id. § 80-3-102(6).
3. “‘Dependent child’ or ‘dependency’ means a child who is
without 	proper 	care 	through 	no 	fault 	of 	the 	child’s 	parent,
guardian, or custodian.” See Utah Code Ann. § 80-1-102(21)
(LexisNexis Supp. 2022) (emphasis added).

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alleged that Mother would spank Child with her hand or a
spatula, leaving behind red marks. The petition asserted that
Mother and Stepfather denied spanking Child and that Mother
believed that Father “has put ideas into [Child’s] head.”
¶8 	Nonetheless, 	Mother and 	Stepfather 	waived 	trial 	and
entered pleas under rule 34(e) of the Utah Rules of Juvenile
Procedure, thereby acknowledging that the allegations in the
amended petition could be accepted as true but without admitting
they were. Following a hearing, the court deemed the amended
petition’s allegations to be true and adjudicated Child neglected
as 	to 	Mother 	and 	Stepfather 	“based 	upon 	concerns 	of
inappropriate discipline and parenting deficits.” The court further
stated that based on its finding of neglect, Child came “under the
provisions of the Juvenile Court Act and [is] under jurisdiction of
the court.”
¶9 	After the court issued its ruling, Mother requested that
Child be returned to her. The court noted that Father had a right
to 	respond 	and 	declined 	to 	rule 	on 	the 	request 	until 	the
disposition hearing scheduled for later that month. Prior to the
hearing, Father filed a request that he retain custody of Child and
that Child remain in his care.
¶10 	At the disposition hearing, the guardian ad litem (the GAL)
stated that “the child and family plan seems appropriate” and that
the case remains a protective supervision services case. The GAL
also stated that the permanency plan of reunification seemed to
be in Child’s best interest but noted that the question of custody
remained to be resolved.
¶11 	Next, Mother renewed her request that Child be returned
to her, noting that she and Stepfather were “doing well and are
engaged with DCFS.” Father opposed this request, arguing that it
was in Child’s best interest to remain with him in Florida. The
court denied Mother’s request, stating that it “needs to see how

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all parents do on the plan” and that it “is most comfortable with
[Child] remaining in his Father’s care right now,” where he “is
currently doing well.” It reasoned that it was “too early in this
case . . . to make that significant of a switch.” The court also
reiterated that “[t]he child and family plan is appropriate” and
directed “all the parents to work on services and improvements
they can make.”
¶12 	In March 2021, the court held a review hearing at which the
GAL indicated that Child “continually expressed . . . that he likes
it in Florida” and “is happy with” Father. Although Child was not
afraid or unwilling to return to Mother, he told the GAL that he
preferred to remain in Florida with Father. The GAL expressed
that he was “confident that [Child] could be okay in either
location.” Next, Mother requested a trial home placement, which
the court did not authorize because it wished first to review
Mother’s and Stepfather’s parental fitness evaluations and to
allow therapists to opine on the matter.
¶13 	In June 2021, Mother filed a request that Child be returned
to her care, asserting that she “has completed all of the services
required by the Child and Family Plan.” At a hearing held that
same month, the State did not take a position on whether Child
should return to Mother or remain with Father, stating that
“[b]oth homes seem appropriate” and that Child’s needs would
be met in either home. The GAL provided the same opinion but
reiterated that Child had repeatedly expressed a preference to
stay with Father. The court ruled that Child was to remain in
Florida with Father and scheduled a permanency hearing to
determine “whether the primary permanency goal should remain
in effect and be carried out or whether the concurrent [goal]” of
permanent custody and guardianship with a relative “should
now be adopted as the primary goal.”
¶14 	The court granted Mother’s subsequent request that Child
come to Utah for an in-person visit. Child visited Mother for a

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week that July. Curiously, Mother dispatched Stepfather to pick
him up at the airport. The visit went well except for one incident
in 	which 	Mother 	began 	calling 	Father 	when 	Child 	was
misbehaving. In response, Child grabbed the phone, disconnected
the call, and began to cry. Mother recorded Child’s outburst with
her cellphone.
¶15 	In August 2021, the court held the permanency hearing in
which the State, Mother, and Father all presented evidence. A
DCFS 	caseworker 	testified 	that 	Mother 	and 	Stepfather 	had
completed the goals outlined in the child and family plan. She also
stated that Mother and Child had been having regular supervised
telephonic or virtual visits and that Mother had been behaving
appropriately, although Child at times seemed uninterested in
talking. She also reported on Child’s week-long visit to Utah,
stating that it went well. The caseworker recommended, should
reunification with Mother continue to remain the permanency
goal, “that a trial home placement be authorized for [Child] to
return to Utah” before the beginning of the school year.
¶16 	Father called family members who testified that Child was
faring well with him in Florida. Father’s wife also testified that
she and Father refrain from corporal punishment and instead
discipline Child by taking away privileges. She said that Father
will occasionally have Child do “about five or ten” pushups as a
form of discipline.
¶17 	Father described how Child’s schooling had improved
since he had come to live with him but stated that despite this
progress, Child was still being held back in second grade. He
recounted that Mother had called family services in Florida
claiming that Father was neglecting Child, but the case was
quickly closed as baseless. He also stated that Mother refused to
pay her share of Child’s medical expenses. Father expressed
concerns about Child returning to Mother based on the court’s

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prior 	adjudication 	of 	neglect 	and 	stated 	that 	Child 	had
communicated a desire to remain with him.
¶18 	Father also called Child’s therapist, guidance counselor,
and teacher to testify. The therapist testified that when Child first
came to see her six months earlier, he was “[v]ery dysregulated,”
“had 	very 	poor 	interpersonal 	skills,” 	and 	had 	“very 	poor
boundaries” but that he had improved with therapy. She also
stated that Child expressed a desire to remain with Father in
Florida, primarily “because of whoopings” he had received in
Utah. The therapist did acknowledge it was possible that Child’s
reluctance to return to Mother might be due to his adjustment
disorder, which made Child dislike “being moved from place to
place.”
¶19 	The guidance counselor testified that Child was evaluated
before he began school in Florida and that his reading level “was
significantly low.” Although Child’s reading level improved with
tutoring, she stated that because “he still was significantly low in
reading,” the school recommended that he repeat second grade.
She stated that Child would also benefit from repeating second
grade because he was one of the younger children in his grade
level and his social maturity was therefore lower than that of his
peers. For example, Child had struggled more than his classmates
with making friends and would become upset if one of his friends
chose another friend, “which is common . . . for younger kids.”
¶20 	The teacher testified that Child suffered from behavioral
issues when he first began school but that he had since greatly
improved, and she “saw him definitely mature throughout the
school year.” She believed that Father and his wife, whom she
described as “very involved parents,” contributed to this marked
improvement in Child. The teacher stated that Child was clean,
always brought a nutritious meal to school, and appeared to be
“[v]ery well taken care of physically.”

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¶21 	Mother called Child’s aunt and Stepfather to testify. The
aunt testified that during Child’s recent visit to Utah, Child
“seemed scared, and he started crying and he ran upstairs” when
Mother started calling Father because Child was misbehaving.
Stepfather described the activities Child and his siblings engaged
in when at home with Mother and Stepfather. He also testified
that although DCFS did not ask him to do so, he elected to go to
individual therapy twice per week and that he would be willing
to engage in additional court-ordered services. He said he would
refrain from corporal punishment of Child. He acknowledged
that he had “very few” opportunities to have contact with Child
over the past year because he was usually at work when Mother
had her scheduled telephonic and virtual parent-time with Child.
¶22 	Mother 	testified 	that 	she 	and 	Child 	enjoyed 	a 	close
relationship but that she had felt “alienated” from him over the
past year. She stated that she had secured a spot for Child at a
Utah school that had a specialized tutoring program for children
who were reading below their expected level. Mother testified
that Child had a good relationship with his half-siblings and
step-sibling who also lived with Mother and Stepfather. She
stated that she was concerned about Child living with Father
because Father “has a temper,” and she recounted a prior incident
in which Father had wrapped one of her other children tightly in
a blanket and would not let him out even though he was
screaming.4 Mother also recounted the incident during Child’s
visit to Utah when she began calling Father because Child was
misbehaving. “Child ripped the phone from me and hung up on
it and then started bawling his eyes out, saying he didn’t want me
to call him because he would punish him.” Mother submitted the
4. This incident had been investigated. Father was not convicted
of any offense related to this incident, and the juvenile court noted
in its Permanency Hearing Order that “at the time, [Mother]
denied that [Father] had done anything wrong.”

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recording of Child’s outburst to the court. Mother stated that she
would be willing to engage in any additional services that the
court ordered and to refrain from corporal punishment of Child.
¶23 	Mother also testified that when Child visited her in Utah,
she sent Stepfather to pick Child up from the airport because their
youngest child had a medical emergency. She also stated that she
set up an appointment with an optometrist and purchased glasses
for Child during the visit, but she was not able to schedule an
in-person family therapy session with Child because her therapist
was on vacation at that time. Mother stated that she believed that
family 	therapy 	was 	necessary 	to 	assist 	in 	rebuilding 	her
relationship with Child, but only “[t]o an extent” because they still
had “a very good relationship in person.”
¶24 	During closing arguments, the State argued that Child
should return to Mother because this was a reunification case,
Mother and Stepfather had completed the child and family plan,
and there were no safety concerns. The GAL argued in closing
that although he did not have safety concerns about Child
returning to Mother and although he believed that Child “would
be fine in either placement,” it was in Child’s best interest to
remain with Father because he was “thriving” and had “made
significant 	progress” 	with 	Father 	and 	because 	Child 	had
consistently expressed a desire to remain with Father. The GAL
thus argued that the permanency goal should be adjusted so that
Child would remain with Father and that “significant visitation”
should be provided to Mother.
¶25 	Mother argued that Child should be returned to her care
because this was a reunification case in which she and Stepfather
had fully complied with the child and family plan and because
there were no safety concerns regarding Child’s return. Stepfather
added that this juvenile case was “being used to wage what
appears to be and amounts to be like a custody fight.” He argued
that because the goals of reunification had been met, Child should

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be returned to Mother and this juvenile case closed, and that any
further modifications to custody should go through a district
court.
¶26 	Father argued that the court needed to decide what was in
Child’s best interest and that it would be inefficient and against
Child’s best interest to leave the determination regarding custody
to the district court. He argued that Mother was “very ignorant”
of Child’s needs and that Child’s education and social skills had
“drastically improved” while Child was in his care. He also
argued that there was no evidence that Stepfather had a good
relationship with Child given their limited contact over the past
year 	and 	that, 	given 	their 	past 	interaction, 	it 	was 	“highly
inappropriate” for Mother to send Stepfather to pick Child up
from the airport during his visit to Utah. Father thus asked the
court to change the permanency goal, terminate reunification
services, and award continued custody of Child to him, with
Mother having “appropriate parent-time.”
¶27 	The juvenile court issued a Preliminary Custody Order in
which it changed the permanency goal for Child to permanent
custody and guardianship with Father. The court stated this order
was “issued only for the purpose of directing the parties as to
where [Child] should be enrolled in school” and that an order
with 	findings 	of 	fact 	and 	conclusions 	of 	law 	would 	be
forthcoming.
¶28 	In December 2021, the court issued a Review Order in
which it granted “permanent legal and physical custody and
guardianship” 	of 	Child 	to 	Father 	and 	standard 	out-of-state
parent-time to Mother. Although the court made limited findings
of fact in that order, it indicated that it would issue a more
detailed set of findings of fact and conclusions of law explaining
its decision. The court then closed the case and terminated its
jurisdiction.

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¶29 	In February 2022, the court issued its Permanency Hearing
Order. The order stated that “[a]t the Disposition hearing in this
matter, the Court set a primary permanency goal of reunification
with a parent and a concurrent plan of permanent custody and
guardianship with a relative.” But at that time, the court had
“indicated that it was too early to decide which parent should be
the primary target of reunification” and that it had “made it clear
that it wanted additional information regarding how all adults—
[Mother, Stepfather, and Father]—would respond to the services,
as well as how [Father] would handle having primary care of
[Child] and how [Child] would respond to that placement, before
a decision about [Child’s] permanent custody would be made.”
¶30 	Although the court commended Mother and Stepfather for
completing the child and family plan and appearing “to have
made the changes necessary to achieve an acceptable level of
safety in their home,” the court stated that this did not mean that
it found “their home to be perfect, or even optimal, for the healthy
rearing of children” and that it meant “only that they meet a
minimal standard of safety, entitling them to be free of state
intervention in their private home and family life.” Citing Utah
Code section 80-3-409(2), the court stated that “[w]hile it is true
that the Juvenile Court generally tries to return a child to the home
from which he was removed, that is not mandatory.”
¶31 	The court explained that because it had made a finding of
neglect as to Mother and a finding of dependency as to Father,
“the parental presumptions for both parents have been rebutted
and they are on equal footing before the Court.”5 And because
5. The parental presumption, classically viewed, “recognizes the
natural right and authority of the parent to the child’s custody.”
Duncan v. Howard, 918 P.2d 888, 892 (Utah Ct. App. 1996)
(quotation simplified). Under the presumption, “where one party
to the controversy is a nonparent, there is a presumption in favor
(continued…)

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“the adjudicated findings of neglect and dependency constitute a
substantial and material change in circumstances that would
justify modification of any prior custody orders,” the focus of the
court’s analysis of where Child “should be placed on a permanent
basis must focus on his best interests.”
¶32 	The court noted that although the parental presumptions
of both parents had been rebutted, the difference between the
finding of neglect as to Mother and dependency as to Father “is
significant.” Namely, the former included a finding of fault while
the latter did not, meaning that Mother had harmed Child while
Father had not. Compare Utah Code Ann. § 80-1-102(58)(a)(ii)
(LexisNexis Supp. 2022) (“‘Neglect’ means action or inaction
causing . . . lack of proper parental care of a child by reason of the
fault or habits of the parent, guardian, or custodian[.]”) (emphasis
added), 	with 	id. 	§ 	80-1-102(21) 	(“‘Dependent 	child’ 	or
‘dependency’ means a child who is without proper care through
of the natural parent, even if an ordinary best-interest inquiry
would come out in favor of the nonparent.” In re A.T., 2020 UT
App 50, ¶ 12, 464 P.3d 173 (quotation simplified). The juvenile
court’s invocation of this principle in a case between two natural
parents—and not between a natural parent and a nonparent—is
on a different footing. See id. ¶ 13 (stating that the court is unaware
of any Utah case in which the parental presumption has been
applied in a dispute between two natural parents); id. ¶¶ 14–15
(assuming “without deciding” that the presumption applies in
such circumstances and concluding “[t]he neglect finding against
Mother rebuts any parental presumption she might have, and the
dependency 	finding 	against 	Father 	rebuts 	any 	parental
presumption he might have”). Be all that as it may, the court’s
analysis in this case left both parents on a level playing field in the
sense that neither benefitted from a parental presumption at the
expense of the other.

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20220001-CA 	13 	2022 UT App 146
no fault of the child’s parent, guardian, or custodian.”) (emphasis
added).6 But because Mother and Stepfather had satisfactorily
addressed the deficits in their parenting, the court compared their
“rehabilitated” home with that of Father for the purpose of its best
interest analysis.
¶33 	In conducting its best interest analysis, the court noted that
Mother 	“displayed 	an 	acrimonious 	attitude 	toward” 	Father
throughout the proceeding and engaged in “harassment tactics”
while 	Child 	was 	living 	with 	Father. 	For 	example, 	Mother
“refus[ed] to pay small sums of money, delay[ed] the sharing of
insurance information for [Child’s] medical or dental care, and
refus[ed] 	to 	provide 	documentation 	needed 	for 	his 	school
enrollment.” She also contacted Florida welfare authorities, but
her complaints were determined to be meritless, and the court
found it notable that she did not notify the court or Utah DCFS of
her concerns. The court reasoned that based on “the attitude and
level of anger” Mother displayed toward Father during the
proceeding, “[i]t is foreseeable that [Mother] will exercise her
anger against [Father] by being uncooperative with allowing
contact and parent time between [Child] and [Father], despite that
relationship being of 	exceptional importance and 	benefit 	to
[Child].”
¶34 	The court further noted that Mother’s “quest to have
[Child] return to her care seemed less about their relationship and
more about the financial implications of custody.” And “[m]ore
importantly, despite the rehabilitative services she completed, she
seems to lose focus on [Child’s] needs.” In support of this
conclusion, 	the 	court 	pointed 	to 	the 	fact 	that 	Mother 	sent
Stepfather, “a person who has mistreated [Child] and who[m] he
fears,” to pick Child up from the airport during his Utah visit,
6. Because the applicable provisions of the Utah Code in effect at
the relevant time do not materially differ from those currently in
effect, we cite the current version of the code for convenience.

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which “indicate[d] a disconnection with her child and a lack of
consideration for what his needs might be.” Although Mother
remained home with a sick child, the court stated that Stepfather,
the sick child’s father, could have just as easily remained home
with the child, enabling Mother to meet Child at the airport. The
court also pointed to the incident when Mother, who “was unable
to effectively discipline [Child],” threatened to call Father and
Child became upset and began to cry. After noting that this was
“the only report of [Child] expressing any fear of [Father],” the
court stated that it was “concerning that [Mother] employed
[Father] as a disciplinary threat, setting him up to be someone
[Child] should fear,” and the court took a negative view of
Mother’s decision to record Child’s outburst “[i]nstead of calming
him and using another approach.” Accordingly, the court found
Mother’s “focus on impeaching [Father] rather than effectively
addressing her child’s behavior to be a manipulative parenting
approach 	and 	one 	that 	is 	detrimental 	to 	[Child] 	and 	his
relationship with [Father].”
¶35 	The order next pointed to the fact that Child had made
educational progress while with Father, whereas Mother “was not
even aware of [Child’s] delays.” And while Child’s need to be
held back a year was “regrettable,” the court stated it believed it
was in Child’s best interest and that it was not attributable to
Child’s placement with Father, who did everything in his power
to address Child’s educational delays. The court found that
Mother’s “apparent lack of interest in [Child’s] current schooling
and her lack of accountability for his educational deficits, despite
their origination while [Child] was in her home, suggest his
delays are more likely a result of inattention on her part rather
than any failure by [Father].”
¶36 	And while the court praised Child’s progress in his mental
health and socialization while with Father, the court noted that
Mother failed to schedule an appointment with a family therapist
when Child was visiting her in Utah. Although Mother’s therapist

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was unavailable during that time, the court stated that Mother
could have obtained an appointment with another therapist
because Child did not have an established relationship with
Mother’s personal therapist. The court expressed concern that
Mother’s “lack of focus on [Child’s] needs and well-being will
result in a future lapse of therapy and that [Child] would be at
risk of losing his progress in his mental health and behavioral
issues.”
¶37 	The court also noted that Child “has not seemed disturbed
by his separation” from his half-siblings and step-sibling who
reside with Mother and Stepfather and that he also has a new
half-sibling in Father’s house. Additionally, Child had expressed
a desire to remain with Father, and “[g]iven what [Child] has
experienced in his short life, his desires should be considered.”
¶38 	“Balancing all factors,” the court concluded that it was in
Child’s best interest that Father be granted custody. The court
stated that this “will maintain [Child’s] current stability and
protect his important relationships, as well as sustain his progress
in both school and therapy.” The court also held that it was in
Child’s best interest that he “have meaningful parent-time with
[Mother]” due to her successful completion of the child and
family plan. But it concluded that “returning [Child] to [Mother’s]
home would create a substantial risk of detriment to his physical
or emotional wellbeing.”
¶39 	Mother appeals.
ISSUES AND STANDARD OF REVIEW
¶40 	Mother first argues that the juvenile court “committed
threshold legal errors” in its application of Utah Code section
80-3-409(2) when it terminated reunification services on the
ground that Child’s return to Mother posed a substantial risk of

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detriment to Child’s physical or emotional well-being. She next
challenges the court’s statutory authority to grant permanent
custody and guardianship of Child to Father. Both of these
arguments 	involve 	legal 	questions, 	which 	we 	review 	for
correctness.7 See Commonwealth Prop. Advocates, LLC v. Mortgage
Elec. Registration System, Inc., 2011 UT App 232, ¶ 5, 263 P.3d 397.
See also In re C.K., 2000 UT App 11, ¶ 17, 996 P.2d 1059 (stating that
“issues of law” are reviewed “for correctness, according no
deference to the [juvenile] court”).
ANALYSIS
I. Section 80-3-409(2)
¶41 	Utah Code section 80-3-409(2) provides,
(a) If reunification services are ordered . . . the
juvenile court shall, at the permanency hearing,
determine . . . whether the minor may safely be
returned to the custody of the minor’s parent.
(b) If the juvenile court finds, by a preponderance of
the evidence, that return of the minor to the minor’s
parent would create a substantial risk of detriment to
the minor’s physical or emotional well-being, the minor
may not be returned to the custody of the minor’s
parent.
7. 	Father 	argues 	that 	some 	of 	Mother’s 	arguments 	are
unpreserved. Because we resolve the merits of the claims in
Father’s favor, we need not address this preservation argument.
See State v. Kitches, 2021 UT App 24, ¶ 28, 484 P.3d 415 (“If the
merits of a claim can easily be resolved in favor of the party
asserting that the claim was not preserved, we readily may opt to
do so without addressing preservation.”) (quotation simplified).

In re H.C.
20220001-CA 	17 	2022 UT App 146
Utah Code Ann. § 80-3-409(2)(a)–(b) (LexisNexis Supp. 2022)
(emphases added).8 Section 80-3-409(3) lists what a court shall
“review and consider” “[i]n making a determination under
Subsection (2)(a).” Id. § 80-3-409(3)(a).
¶42 	Mother argues that the juvenile court’s analysis under
section 80-3-409(2) contained threshold legal errors because the
court “did not make any finding that Child could not safely be
returned to Mother” and because the court “used a best-interest
analysis in lieu of the statutory substantial-risk-of-detriment
analysis.” We disagree on both counts.
A. 	Safety Finding
¶43 	Mother argues that the juvenile court committed legal
error because it “made no finding that Mother was unsafe, and,
based on the evidence produced at the permanency hearing” in
which the State, the DCFS caseworker, and the GAL all informed
the court they did not have any safety concerns regarding Child’s
return to Mother, “any such finding would have been against the
clear weight of the evidence.” In essence, Mother’s argument
seems to assume that subsection (a) of section 80-3-409(2) is a
threshold requirement that must be dealt with before moving to
subsection (b), and she therefore asserts that the court was
required under subsection (a) to make a specific safety finding
separate and apart from its determination that Child’s return to
her posed a substantial risk of detriment to Child’s physical or
emotional well-being under subsection (b). This is incorrect.
8. Subsection (c) of the statute lists instances that amount to prima
facie evidence that return of the minor child to a parent would
constitute a substantial risk of detriment to the minor, see Utah
Code Ann. § 80-3-409(2)(c) (LexisNexis Supp. 2022), none of
which apply to the present case.

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20220001-CA 	18 	2022 UT App 146
¶44 	Under section 80-3-409(2), “the overarching question to be
addressed during [a permanency] hearing is whether the child
may be safely returned to the parent.” In re J.H., 2006 UT App 205,
¶ 13, 138 P.3d 70.9 But this overarching question, articulated in
subsection 	(a) 	of 	the 	statute, 	is 	intertwined 	with 	the
substantial-risk-of-detriment inquiry contained in subsection (b).
The latter inquiry “is a subpart” of the broader safety question. Id.
Thus, 	“the 	first 	step 	to 	be 	performed 	within 	[the 	safety]
determination 	is 	to 	decide 	whether 	return 	would 	create 	a
substantial 	risk 	of 	detriment 	to 	the 	child’s 	well-being.” 	Id.
(quotation simplified). “If returning the child poses such a risk,
the child may not be returned, the inquiry regarding safety ends,
and 	the 	juvenile 	court 	is forced 	to 	take 	other 	actions, 	i.e.,
abandoning 	reunification 	efforts 	and 	steering 	the 	case 	in 	a
different direction.” Id. (quotation simplified). See In re A.S.A.,
2012 UT App 151, ¶ 5, 279 P.3d 419 (per curiam) (stating that
under the statute, “[t]he ultimate determination is whether the
child may be safely returned,” while “[a] consideration in making
this determination is whether the return to the parent’s custody
would create a substantial risk of detriment to the child”). Only if
the court determines that return does not pose a substantial risk
of detriment to the child’s physical or emotional well-being does
the court proceed to consider other factors, including those listed
in section 80-3-409(3), in making the ultimate determination of
whether the child may safely be returned to the parent. See In re
A.S.A., 2012 UT App 151, ¶ 5; In re J.H., 2006 UT App 205, ¶ 14.
¶45 	Here, the juvenile court determined that returning Child to
Mother’s “home would create a substantial risk of detriment to
9. The opinion in In re J.H., 2006 UT App 205, 138 P.3d 70,
specifically discussed Utah Code section 78-3a-312(2), which was
later renumbered, with minor changes, as section 80-3-409(2).
Compare Utah Code Ann. § 78-3a-312(2) (LexisNexis Supp. 2005),
with id. § 80-3-409(2) (Supp. 2022).

In re H.C.
20220001-CA 	19 	2022 UT App 146
his physical or emotional well-being.” This determination, by
itself, was sufficient to preclude Child’s return to Mother, see Utah
Code Ann. § 80-3-409(2)(b) (stating that if the court determines
“that return of the minor to the minor’s parent would create a
substantial risk of detriment to the minor’s physical or emotional
well-being, the minor may not be returned to the custody of the
minor’s 	parent”) 	(emphasis 	added), 	and 	this 	determination
obviated the need for any further finding related to the broader
question of whether Child may safely be returned to Mother.
Specifically, it obviated the need for any finding under subsection
(a) about the safety of Mother’s home as an abstract proposition.
And as discussed in part I.B. below, such a determination was
supported by the evidence presented at the permanency hearing.
Accordingly, the court did not commit legal error by not making
any additional safety-related findings.
B. 	Substantial-Risk-of-Detriment Analysis
¶46 	Mother argues that “[t]he juvenile court made a threshold
legal error when it substituted its best-interests analysis in the
place of the statutorily required analysis of whether returning
custody 	to 	Mother 	would 	constitute 	a 	substantial 	risk 	of
detriment to Child.” Unlike with the best-interest inquiry, Mother
asserts, 	the 	substantial-risk-of-detriment 	inquiry 	“does 	not
holistically examine all the relevant circumstances of the child’s
life,” but instead focuses on “whether the child will be harmed by
returning to the parent.” See In re K.S., 2022 UT App 68, ¶ 53, 512
P.3d 497 (“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.”) (quotation simplified).
¶47 	But Mother mischaracterizes the court’s analysis. While the
court noted in its Permanency Hearing Order, with our emphasis,
that “[t]he analysis of where [Child] should be placed on a
permanent basis must focus on his best interests,” the court also
entered 	two 	specific 	findings: 	first, 	that 	returning 	Child 	to

In re H.C.
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Mother’s “home would create substantial risk of detriment to his
physical or emotional well-being,” and second, that “[t]he goal of
permanent custody and guardianship with [Father] continues to
be in [Child’s] best interests and has been achieved.” Accordingly,
the 	court 	applied 	the 	best-interest 	analysis 	only 	after 	it
determined that Child could not be returned to Mother under
section 80-3-409(2)(b)—not in place of it.10
¶48 	To be sure, the findings the court made supporting various
aspects of its analysis in this case overlapped. Among other
things, the court’s analysis emphasized the following findings:
that Mother’s acrimonious attitude toward Father would likely
negatively affect Child’s relationship with him; that Mother
employed a “manipulative parenting approach” by focusing on
“impeaching” Father rather than addressing Child’s needs; that
Mother sent Stepfather, who had previously mistreated Child and
with whom Child had little contact throughout the past year, to
10. But even if the court had determined that Child’s return to
Mother did not pose a substantial risk of detriment to Child’s
physical or emotional well-being, the court would have then had
to conduct the broader safety inquiry under subsection (a) of
section 80-3-409(2). Under this inquiry, it is “entirely appropriate”
to conduct a best-interest analysis. In re J.H., 2006 UT App 205,
¶ 14, 138 P.3d 70 (“The juvenile court must then determine the
safety question, looking at what is in the best interests of the
child—an inquiry underlying all actions of the juvenile court.”).
See also Utah Code Ann. § 80-3-302(11) (LexisNexis Supp. 2022)
(“No later than 12 months after the day on which the child is
removed from the home, the juvenile court shall schedule a
hearing 	for 	the 	purpose 	of 	entering 	a 	permanent 	order 	in
accordance with the best interest of the child.”). Accordingly, the
court’s determination of whether Child could safely be returned
to Mother would have, in any event, implicated a best-interest
analysis.

In re H.C.
20220001-CA 	21 	2022 UT App 146
pick 	Child 	up 	from 	the 	airport, 	thereby 	indicating 	a
“disconnection with her child and lack of consideration for what
his needs might be”; that Mother seemed to be more concerned
with 	“the 	financial 	implications 	of 	custody” 	than 	with 	her
relationship with Child; that Mother was unaware of Child’s
learning delays and had an “apparent lack of interest in [Child’s]
current schooling”; and that Mother failed to schedule a therapy
appointment during Child’s Utah visit, which was indicative of a
“lack of focus on [Child’s] needs and well-being” and of a possible
future lapse in therapy. While these findings are not unrelated to
Child’s best interest, they are, in the context of this case, entirely
germane 	to 	the 	pivotal 	question 	of 	whether 	there 	was 	a
substantial risk of detriment to Child if he returned to Mother.
And while the court could certainly have more explicitly tied its
findings 	to 	its 	substantial-risk-of-detriment 	analysis, 	this
shortcoming is not fatal. Cf. In re A.S., 2014 UT App 226, ¶ 7, 336
P.3d 582 (per curiam) (“[A] trial court’s failure to make explicit
findings supporting its decision does not, alone, warrant reversal
so long as the basis for the trial court’s ruling is readily apparent
from the record.”); In re J.F., 2013 UT App 288, ¶ 10, 317 P.3d 964
(“That there is some overlap between the juvenile court’s findings
supporting grounds for termination and its findings supporting
the best interests analysis is of little import.”).
¶49 	Furthermore, 	the 	court’s 	best-interest 	analysis 	was
appropriate under Utah Code section 80-3-302(11), which directs
that “[n]o later than 12 months after the day on which the child is
removed from the home, the juvenile court shall schedule a
hearing 	for 	the 	purpose 	of 	entering 	a 	permanent 	order 	in
accordance with the best interest of the child.” See Utah Code Ann.
§ 80-3-302(11) (LexisNexis Supp. 2022) (emphasis added). See also
id. § 80-3-409(8)(a) (“The juvenile court may, in the juvenile court’s
discretion . . . enter any additional order that the juvenile court
determines 	to 	be 	in 	the 	best 	interest 	of 	the 	minor[.]”); 	id.
§ 78A-6-102(5)(g) (stating that one of the purposes of the juvenile

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court is to, “consistent with the ends of justice, act in the best
interests of the minor in all cases and preserve and strengthen
family ties”). Thus, the court was statutorily required to consider
Child’s best interest before entering its Permanency Hearing
Order.
¶50 	For all these reasons, the juvenile court did not commit
legal error in conducting its analysis under Utah Code section
80-3-409(2).
II. Grant of Permanent Custody and Guardianship to Father
¶51 	Mother 	next 	argues 	that 	the 	juvenile 	court 	erred 	in
ordering placement of Child “in the permanent legal and physical
custody of [Father].” First, she argues that the court’s grant of
permanent 	custody 	to 	Father 	“overstepped 	the 	statutory
distinctions between juvenile courts and district courts.” Second,
she asserts that the court’s order “overstepped the statutes that
direct when and how permanency plans should be changed.” We
disagree on both counts.
¶52 	In support of her first argument, Mother asserts that
“[j]uvenile courts should not be deciding custody between two fit
parents.” She contends that while “the juvenile court’s primary
concern is the relationship between a child and a parent who has
been 	accused 	of 	abuse 	or 	neglect,” 	see 	Utah 	Code 	Ann.
§ 78A-6-103(2)(a) (LexisNexis Supp. 2022), “[t]he district court has
a far broader jurisdiction over the relationship between parents
and children but also the relationship between the two parents.”
She further argues that a district court “is in a better position to
decide how the custody dispute should be resolved” and “would
have done a more thorough job in comparing her with Father.” In
support of these assertions, she cites Utah Code section 30-3-10(2),
which provides a detailed list of factors that district courts
consider when making custody determinations in divorce cases.

In re H.C.
20220001-CA 	23 	2022 UT App 146
¶53 	In support of her second argument, Mother asserts that the
court’s grant of permanent custody and guardianship to Father
“was not necessary and was not appropriate” because the State
pursued reunification and advocated that custody be returned to
Mother. She contends that because “the State may pursue a
permanency plan other than reunification ‘only as a last resort,’”
see id. § 80-2a-201(4), and because “there is no indication that a
change of permanency plan was required ‘as a last resort,’” the
juvenile court “overstepped its role when it unilaterally changed
the permanency plan over the State’s recommendation.” Mother
also takes issue with the court’s grant of permanent custody and
guardianship 	to 	Father, 	which 	possibly 	precludes 	her 	from
petitioning 	for 	custodial 	change 	in 	the 	future. 	See 	id.
§ 78A-6-357(3)(d) (“A parent may not file a petition for restoration
of custody under this section during the existence of a permanent
guardianship 	established 	for 	the 	child 	under 	Subsection
80-3-405(2)(d).”).11 Mother asserts that such a permanent and
adverse alteration to her parental rights “was not appropriate
under the facts and circumstances of this case.”
¶54 	Mother’s 	arguments, 	however, 	are 	flawed 	in 	several
respects. As an initial matter, contrary to her assertions, this was
11. Because Utah Code section 80-3-405(2)(d) provides that “[i]f a
minor has been placed with an individual or relative as a result of
an adjudication under this chapter, the juvenile court may enter
an order of permanent legal custody and guardianship with the
individual 	or 	relative 	of 	the 	minor,” 	see 	Utah 	Code 	Ann.
§ 80-3-405(2)(d)(i) (LexisNexis Supp. 2022) (emphases added),
and because Utah Code section 80-3-102(6) does not include
“natural parent” in its definition of “relative,” see id. § 80-3-102(6);
supra note 2, the question arises whether Mother—as Child’s
natural parent, see Utah Code Ann. § 80-3-302(1)(a)(i)—would be
prevented from petitioning for custodial change in the future. We
have no occasion to resolve this issue here.

In re H.C.
20220001-CA 	24 	2022 UT App 146
not merely a custody proceeding between “two fit parents.” The
juvenile court’s order granting Father permanent custody and
guardianship of Child was entered in the context of the court’s
prior adjudication that Mother neglected Child. Although Mother
subsequently complied with the child and family plan, the court
nonetheless determined that Child could not safely be returned to
her care because it found that the return posed a substantial risk
of detriment to Child’s physical or emotional well-being. See id.
§ 80-3-409(2). 	Thus, 	Mother incorrectly asserts that she is a
presumptively fit parent.
¶55 	Additionally, because “the juvenile court has power to
enter decisions regarding the custody of Child notwithstanding
any continuing jurisdiction the district court may retain[,] . . . the
juvenile court can modify custody and grant permanent custody”
to the noncustodial parent, In re J.H., 2006 UT App 205, ¶ 11, 138
P.3d 70, so long as it is authorized by statute to do so in that
particular circumstance, In re B.B., 2002 UT App 82, ¶ 12, 45 P.3d
527 (stating that juvenile courts, being “creatures of statute,” “are
allowed 	to 	do 	only 	what 	the 	legislature 	has 	expressly
authorized”) 	(quotation 	simplified). 	See 	Utah 	Code 	Ann.
§ 78A-6-104(1)(a)(iii) 	(“The 	juvenile 	court 	has 	jurisdiction,
concurrent with the district court . . . over questions of custody,
support, and parent-time of a minor if the juvenile court has
jurisdiction over the minor’s case[.]”). Here, the juvenile court
unquestionably had continuing jurisdiction over Child, and it was
authorized 	by 	statute 	to 	order 	permanent 	custody 	and
guardianship of Child. See Utah Code Ann. § 80-3-409(4).
¶56 	The juvenile court obtained original jurisdiction over Child
when the State petitioned the court for protective supervision
services, alleging abuse and neglect. See id. § 78A-6-103(2)(a). And
as Mother acknowledged during oral argument, the juvenile court
had continuing jurisdiction over Child following his removal and
placement with Father. See id. § 80-3-302(3)(a).

In re H.C.
20220001-CA 	25 	2022 UT App 146
¶57 	Because 	the 	court 	ordered 	reunification 	services 	for
Mother, it was required to hold a permanency hearing no more
than 12 months after Child was removed from her home, see id.
§ 80-3-406(13)(a); id. § 80-3-302(11)–(12), to determine whether
Child may safely be returned to Mother’s care, see id. § 80-3-409(2).
One of the purposes of the permanency hearing “is to compel the
end of the period during which a child is in legal limbo and the
parent is receiving reunification services from the State.” In re J.N.,
960 P.2d 403, 407 (Utah Ct. App. 1998). And because legal limbo
“seriously affects” the child, “permanency adjudication occurs on
a strict timeline.” In re C.Z., 2021 UT App 28, ¶ 31, 484 P.3d 431.
¶58 	Here, as discussed above, the court determined that Child
could not safely be returned to Mother because there was a
substantial risk of detriment to Child’s physical or emotional
well-being. See Utah Code Ann. § 80-3-409(2)(b). In light of this
finding, and because the court did not extend reunification
services, see id. § 80-3-409(7), it was required under Utah Code
section 80-3-409(4) to order termination of reunification services
and 	to 	“make 	a 	final 	determination 	regarding 	whether
termination of parental rights, adoption, or permanent custody
and guardianship is the most appropriate final plan for [Child],”
see id. § 80-3-409(4)(a)–(b). See also In re J.H., 2006 UT App 205, ¶ 7,
138 P.3d 70 (stating that “because permanency hearings are
designed to end the legal limbo for the children concerned, the
permanency hearing statute clearly requires,” if the juvenile court
determines the child is not to be returned to the parent, that the
court “order the termination of reunification services and set a
final permanency plan for the child, i.e., adoption, termination of
parental 	rights, 	or 	permanent 	custody 	or 	guardianship”)
(quotation simplified). Significantly, section 80-3-409(4) “leaves a
juvenile court judge with no discretion.” In re S.K., 1999 UT App
261, ¶ 12 n.5, 987 P.2d 616. See Utah Code Ann. § 80-3-409(8)(a)
(“The juvenile court may, in the juvenile court’s discretion . . .
enter any additional order that the juvenile court determines to be

In re H.C.
20220001-CA 	26 	2022 UT App 146
in the best interest of the minor, so long as that order does not conflict
with the requirements and provisions of Subsections (4) through (7)[.]”)
(emphasis added). The statute does not vest the juvenile court
with the authority to defer to the district court in such a matter.
Indeed, such an action would run afoul of the strict timeline
mandated by statute in the interest of ending the legal limbo of
the abused or neglected child.12
¶59 	Here, 	the 	court 	determined 	that 	granting 	permanent
custody and guardianship to Father and parent-time with Mother
was the most appropriate of the three limited dispositional
choices 	available 	to 	it—i.e., 	“termination 	of 	parental 	rights,
adoption, or permanent custody and guardianship.”13 Utah Code
12. 	The 	strict 	statutory 	timeline 	continues 	even 	after 	the
permanency hearing. For example, the juvenile court may not
ordinarily extend reunification services for more than 90 days
after 	the 	permanency 	hearing, 	see 	Utah 	Code 	Ann.
§ 80-3-409(7)(a), (c) (LexisNexis Supp. 2022), or if the final plan is
to terminate parental rights, the petition for termination must be
filed and a pretrial hearing held within 45 days of the permanency
hearing, see id. § 80-3-409(9)(a), and the court must decide whether
to terminate parental rights no more than 18 months after the
minor was removed from the home, see id. § 80-3-409(12)(c).
13. Admittedly, it seems odd that, in a situation such as this with
two parents vying for custody of a minor child, the statute
authorizes the award of permanent guardianship to one parent
over the other, where both enjoy parental rights in the minor
child. But such is the statutory regimen that we are called upon to
interpret and apply. And permanent custody and guardianship is
one of only three options available by the terms of the controlling
statute when parental neglect has triggered the juvenile court’s
jurisdiction and the case progresses to a permanency hearing at
(continued…)

In re H.C.
20220001-CA 	27 	2022 UT App 146
Ann. § 80-3-409(4)(b). Accordingly, despite Mother’s assertions to
the 	contrary, 	the 	court’s 	grant 	of 	permanent 	custody 	and
guardianship to Father was both appropriate and necessary given
the mandate of the applicable statutory scheme.
CONCLUSION
¶60 	The juvenile court did not err in its analysis under Utah
Code 	section 	80-3-409(2), 	and 	because 	it 	determined 	that
returning Child to Mother would pose a substantial risk of
detriment to Child’s physical or emotional well-being, the court
did not err in granting permanent custody and guardianship to
Father.
¶61 	Affirmed.
which parental neglect is found and reunification services are
terminated. See id. § 80-3-409(4)(b).