State Ex Rel. J.D.

ORME, Judge

(concurring specially):

133 I readily concur in the court's judgment of affirmance and in much of the analysis of the lead opinion. I write separately only because I fear that by belaboring the "best interest" requirement as we do, we *1072 inadvertently suggest that this was a close case. I fear that the lead opinion may be taken to mean that once it has been determined, by clear and convincing evidence, that there are grounds to terminate parental rights-even where the ground is parental unfitness-the further conclusion that termination will be in the children's best interest presents a substantial hurdle. 1 Such is not the case.

34 Procedurally, "[blifurcating the [parental termination] analysis does not require courts to separately hear and consider evidence pertaining to unfitness and best interest." In re S.T., 928 P.2d 393, 399 (Utah Ct.App.1996). And legally, "[ilf the parent-child relationship has been destroyed by the parent's conduct, or lack of conduct, it is usually in the best interest of the child to terminate that relationship." In re J.R.T., 750 P.2d 1234, 1238 (Utah Ct.App.1988). Thus, we have referred to it as being merely "conceivable" that "grounds for termination exist, but that termination nonetheless is not in the best interest of the children." In re E.R., 2001 UT App 66, ¶ 13 , 21 P.3d 680 . Indeed, although the requirement of bifurcated analysis is clearly established by statute, see Utah Code Ann. § 78A-6-506(8) (2008), and jurisprudence, see In re R.A.J., 1999 UT App 329, ¶ 7 , 991 P.2d 1118 , as a practical matter, where grounds for termination are established, the conclusion that termination will be in the children's best interest follows almost automatically. But see id. TV 21-22 (holding that there is no express presumption that once grounds for termination are found, termination is in the child's best interest).

1 35 Cases where grounds for termination are found but termination is held not to be in the child's best interest are rare. Of the many cases cited in the lead opinion, only three are in this category. In one, the tangible benefit to the child of continuing the parental relationship was obvious, namely continuation of the father's child support obligation. See In re B.M.S., 2003 UT App 51, ¶¶ 17-20 , 65 P.3d 639 . In another, the lead opinion concedes that the case "was driven by the deferential standard of review under which we examine termination decisions of the juvenile courts." Supra 119. See In re R.A.J., 1999 UT App 329, ¶ 12 , 991 P.2d 1118 . And in the third case, this court refused to uphold the juvenile court's decision that termination was not in the best interest of the child absent explicit findings by the juvenile court to support that conclusion. See In re E.R., 2001 UT App 66, ¶ 14 , 21 P.3d 680 .

"I 36 That the two requirements, while theoretically distinct, usually are satisfied hand-in-glove, is demonstrated by this case, and most easily shown by posing and answering this rhetorical question: Given "Mother's bizarre behavior, vagabond lifestyle, denial about Father's drug addiction, plans to reunite the Children with Father, emotional instability, inability to attend to the daily needs of the Children, untreated mental illness and personality disorders, ... and history of poor decisions," supra I 22, is it in the best interest of the children to preserve Mother's parental rights? Of course not. And such will be true in the vast majority of cases where parental unfitness has been *1073 found, by the requisite clear and convincing evidence.

. As a practical matter, the "best interest" requirement is likely to present a more substantial hurdle in those cases where the ground is not "unfitness," but one of the less objectively demonstrable grounds, such as "failure of parental adjustment," "token efforts," or voluntary relinquishment, see Utah Code Ann. § 78A-6-507(1)(e)-(g) (2008). The constitutional concern about parental rights and the legislative interest in assuring that termination occur only when it is in the children's best interest, see In re J.P., 648 P.2d 1364 (Utah 1982) (discussing the constitutional right of parents to rear their children free of state intervention and the "paramount" importance of the children's best interest in deciding whether to terminate parental rights), are no doubt at their apex in those cases where the grounds for termination are themselves less compelling. Indeed, it may be that something of a sliding scale exists, requiring a heightened level of "best interest" scrutiny where the reason for terminating parental rights is inherently less urgent, and vice versa. Thus, if grounds to terminate parental rights exist because of a sustained pattern of physical abuse, a conclusion that termination of parental rights is in the child's "best interest" will likely follow without the need for extensive analysis. Conversely, if the necessity for termination of parental rights is less evident, such as where termination is based on a more subjective determination like "failure of parental adjustment," see Utah Code Ann. § 78B-6-507(1)(e), the "best interest" determination will likely take on added importance.