When is permanent guardianship preferable to termination of parental rights? In re D.S. Explained

The Utah Court of Appeals recently addressed the critical question of when permanent guardianship arrangements can adequately serve a child’s best interests without requiring termination of parental rights. In In re D.S., the court reversed a juvenile court’s termination order, emphasizing that the strictly necessary standard requires careful case-specific analysis rather than categorical preferences for adoption.

Background and Facts

Father maintained regular virtual visits with his two children from prison after being incarcerated for protective order violations. When the children were removed from their mother’s custody due to abandonment, they were placed with their paternal grandmother. The State sought to terminate Father’s parental rights to facilitate adoption by the grandmother. Father stipulated to statutory grounds for termination but contested whether termination was strictly necessary to promote the children’s best interests, arguing that permanent guardianship would serve their needs equally well.

Key Legal Issues

The central issue was whether termination of parental rights was strictly necessary to promote the children’s best interests when permanent guardianship with the paternal grandmother remained a viable alternative. The court also addressed what evidence is required to support a finding that children desire adoption over guardianship.

Court’s Analysis and Holding

The Court of Appeals found that the juvenile court’s reasoning was insufficient to support termination. The court rejected categorical concerns about stability differences between adoption and guardianship, noting that such reasoning would make “termination and adoption strictly necessary across the board.” Importantly, the court found no evidence that Father’s relationship with the children was harmful rather than merely inconvenient. The court emphasized that Father should be “commended—rather than chided—for maintaining love and affection” despite his incarceration.

The court also noted the significance that the prospective adoptive parent was Father’s own mother, meaning Father would likely maintain some relationship with the children regardless of the legal arrangement. Without evidence of harm from Father’s relationship or undue influence concerns, permanent guardianship could adequately serve the children’s interests.

Practice Implications

This decision reinforces that courts must identify case-specific reasons why adoption’s added permanency matters rather than relying on general stability concerns. When arguing against termination, practitioners should emphasize the absence of harm from the parent’s relationship and highlight factors showing guardianship would equally protect the child’s interests. The decision also underscores the importance of proper foundational evidence when courts consider children’s expressed desires, including determinations of the child’s sufficient capacity to express meaningful preferences about termination versus guardianship arrangements.