Termination of Parental Rights Caselaw Review: In re D.S., 2023 UT App 98

In recent years, Utah law has made it challenging to terminate parental rights if a parent objects and there are alternative options. For example, if the court could give permanent custody to a relative while allowing the parent at least supervised visitation. Unless the evidence shows it is strictly necessary to terminate a parent’s rights and no alternative will do, courts are favoring protecting parental rights.

For example, in the recent case of In re D.S. the Utah Court of Appeals reversed a juvenile court that had terminated a father’s rights so his children could be adopted by their grandmother.  Even though the father had committed serious crimes and ended up in prison, the Appellate Court found he tried to maintain a relationship with his children the best he could. The evidence did not show he was likely to harm the children once released.

While acknowledging his relationship with the children had become strained because of him going to prison and this naturally limiting his contact with the children, no one suggested he had ever turned down visits or acted inappropriate during visits. At worst, the children complained that they considered their visits “boring” or “uncomfortable,” because not because of anything inappropriate their father did during the visit. The Court held that given these circumstances it would be appropriate to award permanent custody to the grandmother, but the father should at least be allowed ongoing visitation rather than having his rights terminated altogether. They noted “wherever possible, family life should be strengthened and preserved, and if the child can be equally protected and benefited by an option other than termination, termination is not strictly necessary. And parents have a fundamental liberty interest in the care of their children which “does not cease to exist simply because a parent may fail to be a model parent.”

The Court rejected the grandmother’s argument that a permanent custody arrangement was not as stable as an adoption. The Court explained that when a Utah Juvenile Court gives a relative permanent custody and guardianship, the parent has no independent right to petition to change or dissolve the guardianship. Rather the parent is only entitled to “reasonable parent-time with the child.” If the parent and guardian cannot agree what is reasonable, the Court will decide for them. But it is not a situation in which the parent can demand and obtain as much parent-time as the parent desires.

Given the Father’s genuine efforts to maintain a meaningful relationship with his children, as well as evidence he would try to harm them, the Court explained “we want parents to exhibit a commitment towards a positive and continued relationship with their children.” And “in many cases, children will benefit from having more people – rather than fewer – in their lives who love them and care about them.” Thus the father’s desire to have visitation with the children should have been viewed positively, or at least neutrally, rather than as a negative.

The Court cautioned however that its ruling was based on the unique facts of this case. If the facts were different and there was evidence that the Father might harm the children, they might have upheld terminating his rights.

Termination of parental rights is a complicated area of family law regardless of whether you are the person trying to terminate rights or defend against a case brought by someone else. If you need help, please call the experienced Family Law attorneys at Wiser & Wiser today at 855-254-2600.