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Guardianship Adoptions and Birth Parents' Rights

In October 2022, the Utah Court of Appeals made an important ruling in a case (In re J.J.W.) where a Grandmother/Guardian wanted to adopt her grandchild. The birth father had been in and out of jail with drug problems. He had consented to the Grandmother having guardianship a few years prior. And in the decree of guardianship, the judge had granted that the birth father could have three hours per week of visitation time with his child.

In the J.J.W. case, the trial judge decided that adoption would provide stability and permanence, so the judge terminated the birth father's parental rights. Obviously, the birth father appealed.

The Utah Court of Appeals remanded the case back to the trial court because the trial judge failed to make specific findings of fact about whether termination of the birth father's rights was "strictly necessary." The Court made the following observations about Utah law:

First, the Utah legislature has expressed a strong preference for families to remain together, stating that “[i]t is in the best interest and welfare of a child to be raised under the care and supervision of the child’s natural parents” and that “[a] child’s need for a normal family life in a permanent home, and for positive, nurturing family relationships is usually best met by the child’s natural parents.”

Second, the Utah legislature has mandated that termination of parental rights is permissible only when such termination is “strictly necessary.” So, a court must specifically address whether termination is strictly necessary to promote the child’s welfare and best interest.”

Courts must explore whether other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights. In some cases, alternatives will be few and unsatisfactory, and termination of the parent’s rights will be the option that is in the child’s best interest. But in other cases, courts should consider whether other less-permanent arrangements might serve the child’s needs just as well.

In short, the trial court must explore whether there is some feasible way to avoid terminating a birth parent’s rights. Sometimes, a permanent guardianship may be in the child’s best interest. For example, the child can still live with the guardian (i.e., Grandma) but spend Saturday afternoons with Birth Mom or Birth Dad.

Our courts have said that “if there is a practical way to keep parents involved in the children’s lives that is not contrary to the children’s best interests, a court should seriously consider such an option.”

At the Utah Adoption Law Center, we handle Guardianship Adoptions. For a free consultation, please call us at (385) 200-1972 or (435) 592-1235.

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