BLANK

Category: Sexual Abuse

2024 UT App 40 – State v. Heward – plea agreement, ineffective assistance

2024 UT App 40 – State v. Heward

THE UTAH COURT OF APPEALS, STATE OF UTAH, Appellee, v. BENJAMIN LEE HEWARD, Appellant.

Opinion No. 20221055-CA Filed March 28, 2024 Fourth District Court, Provo Department

The Honorable Robert A. Lund No. 201400462

Scott F. Garrett and Jessica Griffin Anderson, Attorneys for Appellant

Sean D. Reyes and Andrew F. Peterson, Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS concurred.

MORTENSEN, Judge:

¶1        Benjamin Lee Heward pled guilty to two charges of aggravated sexual abuse of his two minor daughters. As part of his plea agreement, the State and the victims promised to “affirmatively recommend” a prison sentence of two concurrent terms of six years to life. At sentencing, the prosecutor argued against probation and recommended a sentence of six years to life, but the two victims testified they were having second thoughts about the arguably lenient sentence, a change that the prosecutor attempted to explain. Ultimately, the court followed the recommendation of Adult Probation and Parole (AP&P), sentencing Heward to fifteen years to life on each count, with the sentences to run concurrently. Heward now maintains that the prosecutor breached the plea agreement when he made statements about probation and the feelings of the victims, and he asserts that the district court should have acted sua sponte to remedy the situation. Heward also asserts that his attorney rendered ineffective assistance in failing to object to the prosecutor’s comments. We reject Heward’s claims of error and therefore affirm.

BACKGROUND

¶2          Heward was charged with ten counts of aggravated sexual abuse of a child and one count of rape of a child for the admitted abuse he inflicted on his two minor daughters over a number of years. Heward pled guilty to two of the aggravated sexual abuse charges: (1) rubbing his clothed genitals over the clothed genitals of his older daughter in an act of simulated sexual intercourse and (2) rubbing his younger daughter’s genitals skin to skin with his hand.

¶3          As part of the plea, the State agreed to dismiss the rape charge and the other eight aggravated sexual abuse charges. In addition, the plea agreement indicated that the “State and the victims” would “affirmatively recommend” a prison sentence of six years to life and lifetime sex-offender registration. In contrast, AP&P recommended that Heward be sentenced to fifteen years to life on each count.[1]

¶4          At sentencing, the prosecutor stated, “I know that based on . . . Heward’s statement and the recommendation from his sex offender treatment therapist he’s going to be asking for probation.” The prosecutor acknowledged there was a “very, very narrow exception” to the mandatory imprisonment required for aggravated sexual abuse of a child. See Utah Code § 76-5-404.3(7) (stating that imprisonment is mandatory). That exception allows a court to “suspend execution of sentence and consider probation to a residential sexual abuse treatment center only if,” along with numerous other conditions, the perpetrator’s offense “did not cause the child victim severe psychological harm.” Id. § 76-5­406.5(1)(b). To this point, the prosecutor argued,

Heward needs to show it’s in the best interest of the public and specifically the child victims that the Court should sentence him to probation instead. He can’t show that, Judge. He needs to show that these offenses did not cause the child victim severe psychological harm. He cannot show that, Judge. It’s clear based on the victim impact statements from both [of Heward’s daughters] that they are suffering severe psychological harm, continued psychological harm for what their father did to them.

¶5          The prosecutor then emphasized that Heward’s abuse would make it “extremely difficult” for his victims to have a “sense of peace” and that they were “going to be affected” for “the rest of their lives” because Heward “used them as sexual objects.” The prosecutor also pointed out that certain sex offenses involving children in Heward’s juvenile record indicated that he represented a danger to the community. The prosecutor concluded by saying, “He’s going to tell the Court right now that he should be granted probation because he’s not a threat to the community. The Court should disregard that.”

¶6          The prosecutor then gave Heward’s victims time to speak. The older daughter stated that Heward’s abuse had a “devastating impact” on her life, that she was “still suffering from his actions,” and that she was “always having to look over [her] shoulder making sure he’s not around” her. This daughter, after recounting the “painful memories” and her continuing trauma, stated that Heward was “being shown undue mercy . . . with a plea agreement.” She also noted that Heward had violated protective orders “[a]gain and again” and even at the sentencing hearing, he had “force[d]” and “manipulated” her and her sister “into an embrace with him.”

¶7          The younger daughter also spoke. She said that as a result of the abuse, she struggled with depression and anxiety. She shared that she continued to “feel uncomfortable leaving [her] room” because she was afraid that she would “get raped and sexually assaulted again.” She further revealed that whenever someone touches her “unexpectedly,” she is “startled” and “can physically feel it all happening again.”

¶8          After Heward’s victims finished speaking, the prosecutor expressed that he wanted “to talk about what the State’s recommendation [was] going to be.” He explained that “[i]n speaking with the victims through plea negotiations,” their “minimums were 6 to life” and “lifetime sex offender” registration. Then the following exchange took place:

Prosecutor: I spoke with [the victims] this morning, if they still feel the same way, understanding that I’m bound to the recommendation of 6 to life, that I thought it was important for the Court to know where the victims stand today. I asked them how they still felt about the 6 to life. They told me—

Court: May I say, . . . you bound yourself to 6 to life?

Prosecutor: Yes, sir, that is the State’s recommendation.

Court: Okay, . . . you need to be very careful you don’t say anything now that could be you trying to argue against that deal. So be circumspect in your comments.

Prosecutor: Judge, I’m not arguing that it should be anything else. I think the Court should be fully informed about where the victims are. The victims aren’t party to this agreement, but victims do have a right to be heard, and that can be through their own statements or through that of the prosecutor. They felt like they were manipulated by the defendant to feel sorry for him, and the Court did hear those statements today. They felt manipulated, and that’s why they wanted 6 to life. That’s the reason for the plea offer that was given, Judge. The State is still bound and still recommending 6 to life.

¶9          Heward’s attorney (Counsel) then spoke about mitigating factors that the court should consider in sentencing. Counsel agreed with the State that Heward “probably [was] not qualified” for the “statutory exception that allows for probation.” Counsel then concluded, “We would concur with the recommendation of the two concurrent 6 years. That’s what we’ve all agreed to, and that’s what I’d recommend.”

¶10 Other witnesses, including Heward’s mother and his therapist, spoke about various mitigating factors. And Heward himself spoke, stating that he was “not asking for probation.”

¶11        The court was not persuaded by the recitation of mitigating factors:

[I]t evidences a higher level of depravity when the victims are your biological children, and this conduct went on for years. . . . [T]hat’s also an aggravating circumstance. It’s an aggravating circumstance that you violated the protective order.

Frankly, based on the information that’s before me, it seems to me that you’ve minimized the conduct that you’ve been involved in. I’d be more inclined to accept the versions that [your daughters] provide in terms of what happened.

Based on all of that, I’m going to follow the AP&P recommendation. I don’t think that I have the discretion to sentence you to less than 15 years in prison. That’s the sentence of the Court. You’ll be sentenced to [two concurrent terms] of 15 years to life in the Utah State Prison.

¶12        Heward appeals.

ISSUES AND STANDARDS OF REVIEW

¶13        Heward first argues that the “prosecutor breached the plea agreement by failing to affirmatively recommend a prison sentence of six years to life and by implying the State regretted entering into the plea agreement.” Heward acknowledges that this claim was not preserved and asks that it be reviewed under both plain error and ineffective assistance of counsel. See State v. Shaffer, 2010 UT App 240, ¶ 9, 239 P.3d 285 (recognizing that an unpreserved alleged breach may be reviewed for plain error and ineffective assistance of counsel). To demonstrate plain error, Heward “must show that: (i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) absent the error, there is a reasonable likelihood of a more favorable outcome.” State v. Samul, 2018 UT App 177, ¶ 10, 436 P.3d 298 (cleaned up), cert. denied, 432 P.3d 1233 (Utah 2018). And “when a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law.” Id. ¶ 11 (cleaned up).

ANALYSIS
I. Plain Error

¶14 Heward complains that the prosecutor breached the plea agreement in two separate but related ways. First, Heward argues that the prosecutor failed to “affirmatively recommend” the prison sentence of six years to life as indicated in the plea agreement. Second, Heward argues that the prosecutor then “compounded” the breach by bringing up the victims’ apparent change of heart about the plea agreement, implying that the State regretted entering the plea agreement. And Heward asserts that the district court “should have been aware of the errors the prosecutor made.” In such cases, our court has focused on whether a prosecutor’s statements were egregious enough to require a district court to act sua sponte to remedy the situation. See State v. Hummel, 2017 UT 19, ¶ 119, 393 P.3d 314 (“[N]one of [the prosecutor’s] statements was so egregiously false or misleading that the judge had an obligation to intervene by raising an objection sua sponte.”); State v. Hosman, 2021 UT App 103, ¶ 38, 496 P.3d 1162 (questioning whether a prosecutor’s statements were so egregious that it constituted plain error for the court to fail to intervene sua sponte to remedy the harm), cert. denied, 502 P.3d 270 (Utah 2021).

¶15 To succeed on this claim, Heward “must prove that the State actually breached the plea agreement, that the breach should have been obvious to the district court, and that had the district court recognized and remedied the breach, there is a reasonable likelihood that [his] sentence would have been more favorable.” State v. Gray, 2016 UT App 87, ¶ 15, 372 P.3d 715, cert. denied, 379 P.3d 1185 (Utah 2016). And “if any one of these requirements is not met, plain error is not established.” Id. (cleaned up).

¶16        “[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262 (1971); accord State v. Lindsey, 2014 UT App 288, ¶ 16, 340 P.3d 176. Accordingly, a “plea agreement is breached when the State fails to act in accord with its promise.” State v. Samulski, 2016 UT App 226, ¶ 13, 387 P.3d 595, cert. denied, 390 P.3d 725 (Utah 2017). However, “when a defendant alleges that the State violated a plea agreement by making inappropriate statements at sentencing, as [Heward] does here, we consider the prosecutor’s statements in the context of the entire hearing.” Gray, 2016 UT App 87, ¶ 16 (cleaned up).

  1. Affirmative Recommendation

¶17        Heward argues that the prosecutor failed to “affirmatively recommend” the prison sentence of six years to life agreed to in the plea. The gist of Heward’s argument is that “[i]n order to affirmatively recommend a sentence of six years to life, the prosecutor was required to make an effort to position the recommendation as one that is ‘in the interests of justice.’” (Quoting Utah Code § 76-5-404.3(4)(b).) Heward asserts that, instead, the prosecutor “utterly failed to make an argument or present the judge with any information that a sentence of six years to life was in the interests of justice.” Heward complains that the prosecutor “focused solely” on the limited discretion of the judge, certain aggravating factors (namely, the psychological harm suffered by the victims, Heward’s juvenile record, and Heward’s alleged violation of a protective order), and the victims’ alleged withdrawal of support for the plea agreement. “By emphasizing only aggravating factors in his argument,” Heward asserts, “the prosecutor failed to affirmatively recommend a sentence of six years to life,” resulting in “a clear breach.” We are not persuaded that any breach, let alone a clear one, occurred when the prosecutor highlighted these factors.

¶18        First, the prosecutor’s statements about aggravating factors were made not in reference to the plea agreement but in the context of arguing that Heward should not be offered probation under the limited statutory exception to mandatory imprisonment. By pointing to the severe psychological harm inflicted on the victims and Heward’s juvenile record, the prosecutor was explicitly arguing that Heward was not eligible for probation under the statute. And Heward’s violation of the protective order was also mentioned in the context of denying probation—specifically that Heward should start serving his sentence immediately. As the State points out, the prosecutor’s remarks about the protective order violations “weren’t about what Heward’s sentence should be, but when he should begin to serve it.” Arguing against probation and for immediate incarceration— even if it necessarily required the prosecutor to reference some aggravating factors relevant to other aspects of Heward’s sentencing—was consistent with the State’s recommendation of six years to life. After all, the plea agreement made it perfectly clear that the State would “affirmatively recommend” a prison term, a recommendation that obviously entitled the prosecutor to argue—even forcefully—against probation by highlighting specific reasons Heward did not qualify for probation.

¶19 Second, and more to the point, an “affirmative recommendation” does not require any particular measure of enthusiasm for an agreed-upon sentencing recommendation. While a prosecutor may not “undermine” a promised sentencing recommendation by expressing “personal reservations at the sentencing hearing,” the “prosecutor has no responsibility to make such recommendations enthusiastically.” State v. Shaffer, 2010 UT App 240, ¶ 26, 239 P.3d 285 (cleaned up); see also Gray, 2016 UT App 87, ¶ 18 (“[The prosecutor] described the circumstances of the crimes to underscore [the absence of mitigating factors], and at the conclusion of this discussion, he accurately, if not enthusiastically, described the recommendation the State had agreed to make for concurrent sentences . . . . [This] context supported a reasonable interpretation that comported with . . . the State’s obligations under the plea agreement.”).

¶20 Notably, the plea agreement does not contain any provisions regarding how the State was to fulfill its promise to “affirmatively recommend” the six-years-to-life sentence. It offers no guidance on how enthusiastically or forcefully the prosecutor had to argue in favor of the agreement. Nor does it indicate, as Heward argues on appeal that it should, any kind of obligation on the part of the prosecutor to highlight mitigating factors. And while it is true that the prosecutor did not approach the recommendation with gusto, it is even more clear that the prosecutor did affirmatively recommend the agreed-upon sentence two distinct times. The prosecutor explicitly declared that six years to life “is the State’s recommendation.” (Emphasis added.) And when cautioned by the court to “be circumspect” in his comments to avoid saying “anything” that “could be . . . trying to argue against that deal,” the prosecutor clarified that he was “not arguing that it should be anything else” and that the “State is still bound and still recommending 6 to life.” (Emphasis added.)

¶21 Moreover, these recommendations were “affirmative” in that the prosecutor did more than merely submit the matter without any argument against the defense’s recommendation; to the contrary, the State expressed its affirmative assent to the prison term agreed upon in the plea agreement. See State v. Samul, 2018 UT App 177, ¶¶ 13–17, 436 P.3d 298 (distinguishing between situations in which a plea agreement merely “secured the State’s promise not to oppose” the defense’s recommendation and situations in which a plea agreement requires the State to “affirmatively argue for” a particular sentence), cert. denied, 432 P.3d 1233 (Utah 2018). In this case, the prosecutor made an effort to positively express the State’s assent to the term of six years to life by declaring that the term “is the State’s recommendation.” (Emphasis added.) That the assent was expressed without great enthusiasm does not diminish that it was in the affirmative.

¶22 Thus, the prosecutor’s statements, especially when taken as a whole, represent a consistently unambiguous affirmation at sentencing that the State stood behind its recommendation of six years to life. We perceive no breach of the plea agreement in the manner in which the prosecutor recommended a six-years-to-life prison sentence.

  1. Implication of Regret

¶23 Heward next argues that in informing the court that the two victims apparently no longer supported the sentence of six years to life, the State breached the plea agreement by implying that it regretted entering it.

¶24 A prosecutor who “promises to recommend a certain sentence and does so” does not breach the bargain “by also bringing all relevant facts to the attention of the court, so long as the statements are neutral and do not imply that the information makes the State regret entering into the plea agreement.” Shaffer, 2010 UT App 240, ¶ 26 (cleaned up). The feelings of victims do not inherently reflect the position of the State, and victims are not authorized to communicate the State’s recommendations. Therefore, by sharing the victims’ feelings, the prosecutor was making a neutral statement, one that did not reflect the State’s position or recommendation. See id. ¶ 32 (“By repeating the victim’s statement, the prosecutor did not undermine the State’s recommendation or imply that the State regretted that recommendation.”). Thus, bringing to the court’s attention that the support of Heward’s victims for the plea agreement had perhaps waned does not imply that the State regretted entering the plea.

¶25        It is also important to note that the prosecutor made these comments immediately after Heward’s victims made statements that could admittedly cut against the sentence of six years to life. The older daughter seemed to explicitly oppose the plea agreement, saying that Heward was “being shown undue mercy . . . with a plea agreement.” And the younger daughter, while not overtly criticizing the plea agreement, described in detail how Heward’s abuse caused her to feel “numb,” depressed, anxious, “suicidal,” “unclean and dirty,” and untrusting. She further stated that she continued to have “very vivid nightmares and flashbacks” in which she could “physically feel his hands” on her. She also said, “I will never be able to forget how it felt when . . . Heward did the things he did to me. I’m afraid that wherever I go I will see him and he will hurt me in some type of way.” And she concluded by saying, “I want . . . Heward to learn from his actions, and I want him to know how badly he affected me . . . .” Given the graphic descriptions both victims provided of the ongoing harm they suffered, it certainly would not be a stretch to conclude that the victims thought Heward was being treated too leniently by the terms of the plea agreement.[2]

¶26 It was against this backdrop that the prosecutor spoke. As the State points out, the victims’ apparent “about-face on the plea agreement demanded an explanation” because the “court may have been confused by the disparity between the victims’ statements at sentencing and the plea agreement.” After all, the plea agreement stated that the “State and victims will affirmatively recommend” a sentence of six years to life. But after the victims spoke, the court could have easily concluded that the victims were no longer on board. It is in this milieu that the prosecutor assured the court that in “speaking with the victims through plea negotiations,” their “minimums were 6 to life” and “lifetime sex offender registry” and that was the offer the State gave Heward. Then the prosecutor explained that the victims had “wanted 6 to life” because “they felt manipulated” by Heward. We have made clear that a prosecutor conveying the views of the victim does not “undermine” or breach a plea agreement. Here, if anything, the prosecutor’s statements about how the victims felt represented an attempt to salvage the plea agreement after the victims’ statements could be taken as militating against it. And it was well within the prosecutor’s duty to assist the victims in making their views known. See State v. Casey, 2002 UT 29, ¶ 29, 44 P.3d 756 (“Prosecutors must assist victims in exercising their right to be heard at plea hearings and provide them with clear explanations regarding such proceedings.” (cleaned up)). The prosecutor appeared to be making the best of a delicate situation by juggling the interests of the various parties involved while trying to also honor the promises made in the plea agreement.

¶27        In sum, Heward’s complaint of plain error fails because the prosecutor did not breach the plea agreement at all, let alone commit a breach so obvious as to require the district court to intervene without an objection.

  1. Ineffective Assistance

¶28 Heward argues that Counsel provided ineffective assistance by failing to object to the prosecutor’s alleged breach of the plea agreement.

¶29 To show ineffective assistance of counsel, Heward must prove that Counsel performed deficiently and that he suffered prejudice as a result. See Strickland v. Washington, 466 U.S. 668, 687 (1984). “Because failure to establish either prong of the test is fatal to an ineffective assistance of counsel claim, we are free to address [Heward’s claim] under either prong.” Honie v. State, 2014 UT 19, ¶ 31, 342 P.3d 182. Since we conclude, for two reasons, that Counsel did not perform deficiently, we limit our analysis to the deficiency prong. We give “trial counsel wide latitude in making tactical decisions and will not question such decisions unless there is no reasonable basis supporting them.” State v. Heyen, 2020 UT App 147, ¶ 18, 477 P.3d 23 (cleaned up), cert. denied, 485 P.3d 943 (Utah 2021). So, to prevail on Strickland’s first prong, Heward “must overcome the strong presumption that trial counsel rendered adequate assistance and exercised reasonable professional judgment by persuading the court that there was no conceivable tactical basis for counsel’s actions.” State v. Samul, 2018 UT App 177, ¶ 15, 436 P.3d 298 (cleaned up), cert. denied, 432 P.3d 1233 (Utah 2018).

¶30 First, any objection would have been unlikely to succeed because, as we have explained above, it was far from clear that the prosecutor breached the plea agreement. See State v. Burdick, 2014 UT App 34, ¶ 34, 320 P.3d 55 (“It is well settled that counsel’s performance at trial is not deficient if counsel refrains from making futile objections, motions, or requests.” (cleaned up)), cert. denied, 329 P.3d 36 (Utah 2014). Under these circumstances, a reasonable attorney could have concluded that the prosecutor had made the required “affirmative recommendation” and had therefore not breached the plea agreement at all. See Samul, 2018 UT App 177, ¶ 16 (“Here, we can easily conceive of a reasoned basis for counsel’s decision not to object to the State’s remarks at sentencing: counsel may have believed that the State was accurately describing the terms of the plea agreement.”).

¶31        Second, even if we assume, for purposes of the discussion, that Counsel actually believed, in the moment, that the prosecutor’s sentencing remarks constituted a breach of the plea agreement, Counsel nevertheless had a solid strategic reason not to object to the prosecutor’s statements, namely, an objection could jeopardize the plea agreement and he very much wanted it to remain on the table owing to the favorable terms it offered Heward. Through the plea agreement, Heward would serve time for only two of his eleven charges—ten counts of aggravated sexual abuse of a child and one count of rape of a child. If Counsel had been successful in objecting that the prosecutor breached the plea agreement, one of two results would have likely happened. At its discretion, the district court could have ordered “either specific performance of the plea agreement or withdrawal of the guilty plea.” State v. Smit, 2004 UT App 222, ¶ 17, 95 P.3d 1203. If the court had ordered specific performance, the State would then have to reiterate that it was honoring the promises made in the plea agreement. But it would have been more likely (had a breach occurred) that the court would have allowed Heward to withdraw his plea—something he would be reluctant to do since the probability of getting an equally favorable offer later would be slim in light of the victims’ apparent reservations about the existing plea agreement. Competent counsel could easily conclude that the risk of objecting was simply too great considering the minimal benefit and likely downside. At the very least, competent counsel could have reasoned that there was no benefit in objecting because the existing agreement was the best Heward was going to receive. So, Counsel’s best course of action was to express Heward’s concurrence with the six-years-to-life sentence and hope that the court would agree.

¶32        Accordingly, Heward’s ineffective assistance claim fails because Counsel had sound strategic reasons for not lodging an objection to the prosecutor’s statements at sentencing.

CONCLUSION

¶33        Heward fails to establish that the district court plainly erred where he has not shown that the plea agreement was breached, much less obviously so. He has also failed to show that Counsel provided ineffective assistance in not objecting to the prosecutor’s statements.

¶34 Affirmed.

Utah Family Law, LC | divorceutah.com | 801-466-9277


[1] For context, a court imposing a sentence for aggravated sexual abuse of a child may deviate downward from the presumptive upper range of fifteen years to life if the “court finds that a lesser term . . . is in the interests of justice.” See Utah Code § 76-5-404.3(4). The available lesser terms are ten years to life and six years to life. See id.

[2] In his reply brief, Heward explicitly states that he “does not object to the prosecutor facilitating the victims’ statements to the trial court.” Moreover, Heward does not claim in any way that the victims speaking up against the low-range sentence was a breach of the plea agreement, even where the plea agreement stated the victims would “affirmatively recommend” a sentence of six years to life along with the State.

Tags: , , , , , , , ,

Have You Heard That Fathers Defeat Mothers’ Claims of DV and Child Abuse by Claiming Parental Alienation?

We all know the aphorism, “If it looks/sounds to good to be true, it probably is [not true].” This also means, however, that if it looks/sounds too 𝙗𝙖𝙙 to be true, it probably is [not true] too.

Can we all agree that the following claim looks, on its face, too bad to be true?:

A George Washington University Law School article shows that mothers are statistically up to 90% more likely to lose custody of their children when they go on record about abuse. Abusive fathers, who claim parental alienation are almost always granted custody.

So, is the claim true?

I found the article: Child Custody Outcomes in Cases Involving Parental Alienation and Abuse Allegations, by Joan S. Meier George Washington University Law School.

Here is what that article actually claims (this is not the entire article, of course, and I have my doubts about the methodology and the resulting accuracy of the claims themselves, but I digress):

Spoiler alert: the article does not make any “women lose custody 90% of the time when they report abuse” claim.

Quotations directly from the article itself:

“Focusing on cases where it was determined that mothers started with possession of the children, and alleged some type of abuse by the father, the data show mothers losing custody in 26% (284/1111) of cases.”

*****

It is also notable that when mothers report mixed types of child abuse (sexual and physical) their custody losses skyrocket (from under 30% (39/135) up to 50%)(11/22).

*****

• When Fathers cross-claim alienation, courts are more than twice as likely to disbelieve Mothers’ claims of (any) abuse than if fathers made no alienation claim; and

• When Fathers cross-claim alienation, courts are almost 4 (3.9) times more likely to disbelieve Mothers’ claims of child abuse than if fathers made no alienation claim.

*****

As the chart indicates, when fathers claim alienation, the rate at which mothers lose custody shoots up from over 25% to over 50%. That is, fathers’ alienation claims roughly double mothers’ rates of losing custody. When courts credit the alienation claim, rates of maternal losses of custody increase more drastically:

Mothers’ Custody Losses When Courts Credit Fathers’ Alienation Claims

Type of Abuse Alleged Mother Lost Custody:

DV (domestic violence): 60% (15/25)
CPA (child physical abuse): 59% (10/17)
CSA (child sexual abuse): 68% (13/19)
DVCh (domestic violence and child physical abuse): 79% (19/24)
CACSA (child physical abuse and child sexual abuse): 100% (6/6)
Any abuse: 73% (60/82)

*****

“AKA” cases: those in which a court viewed a mother as alienating in her behavior but did not use the term “alienation.”

Mothers’ Custody Losses when Found to have Committed AKA

 

Custody Losses by Type of Abuse Alleged

Custody Losses When Abuse was Proven

   
DV  62% (24/39) DV  60% (3/5)
CPA  61% (17/28) CPA  50% (1/2)
CSA  58% (25/43) CSA  –
DVCh  55% (16/29) DVCh  –
CACSA  78% (7/9) CACSA  100% (1/1)
Any  60% (89/148) Any  63% (5/8)

—————————–

The article is definitely food for thought, but clearly does not find that mothers who allege abuse are 90% more likely to lose/not win custody.

Additionally, one of my critiques of the article is this: it does not reveal whether the abuse-alleging mothers who lost/did not win custody was due purely to their alleging abuse or purely because they were found to have engaged in parental alienation or something like it. For example, if these mothers were themselves child abusers or were found to be unfit parents for other reasons (i.e., child neglect, substance abuse, lacking sufficient housing, ability to provide financially, practicing poor hygiene, insufficient bonding, etc.), how many of them would have lost/not won custody anyway? The article does not address this.

But even if the only reason these mothers lost/did not win custody was due to the court finding them to have engaged in parental alienation, would that not be reason enough? Now, I’m not asserting that all cases of actual parental alienation should cause a mother (or father committing alienation) to lose/not win custody (level of severity must be considered), but parental alienation would be, in my professional opinion, sufficient grounds for awarding custody of children to the other parent, assuming the other parent were found, on balance to be 1) sufficiently fit as a parent; and 2) the more fit of the two parents.

Utah Family Law, LC | divorceutah.com | 801-466-9277

Tags: , , , , , , , , ,

House Bill 140 (HB0140 (utah.gov)), “Amendments to Custody and Parent-Time”

Today’s post on proposed family law legislation under consideration during the 2024 Utah legislative session is House Bill 140 (HB0140 (utah.gov)), “Amendments to Custody and Parent-Time”.

This bill, according to its own description:

  • provides that a substantial and material change in circumstances for a custody order includes a parent residing with an individual, or providing the individual with access to the parent’s child, when the individual has been convicted of certain crimes;
  • amends the advisory guidelines for a custody and parent-time arrangement to allow for parental notification when a parent is residing with an individual, or providing the individual with access to the parent’s child, and the individual has been convicted of certain crimes;
  • amends the advisory guidelines for a custody and parent-time arrangement in regard to notification of a parent in the event of a medical emergency; and
  • makes technical and conforming changes.

It would amend the following code sections, if passed into law:

Utah Code § 30-3-10.4

Utah Code § 30-3-33

My thoughts on this bill:

If this bill passed, what effect would it have? A parent discovers that the person he/she resides with or to whom the parent has “provide access to his/her child(ren)” meets one or more of the child abuse/child sexual abuse factors and has to notify the other parent of this fact? So what? Unless the person is barred from contact with children, then unless that person has abused, attempted to abuse, or threatened to abuse the child(ren), what can legally be done? A child being in the presence of a child abuse ex-con is not itself a “substantial and material change of circumstances” justifying a modification of child custody or parent-time, in my view. We can’t keep punishing someone repeatedly for the same crime.

And the definition of “sex offender” gets broader all the time. You can get on the sex offender list for the silliest of things (I know a guy who went streaking in college and is on the sex offender list—it was stupid of him to go streaking, but a little kid saw him from a neighboring window and that’s what got him on the sex offender list).

Yes, living with a child abuse ex-con or providing a child abuse ex-con “access to the child(ren)” is poor judgment, but without the children being harmed or in danger of being harmed, there’s not enough to go on to do anything.

But I get it. If I were a divorced or single parent, I wouldn’t want the other parent living with a convicted sex offender either (assuming the offense was a serious one, and not one of those “he/she is on the sex offender list for public urination” kind of convictions).

It’s not a matter of how I feel about sex offenders (real sex offenses are vile), it’s whether the proposed law would do any good. I don’t think it would. Especially not in the legal system we have now. What good one perceives such a law would do and what it would actually do are quite different, in my view.

I don’t know a great deal about the sex offender registry law and other post-conviction laws. Are convicted sex offenders required to notify prospective boyfriends/girlfriends or spouses that they are convicted sex offenders currently? It is my understanding that they do not. If they do, then H.B. 140 may have stronger rational footing than I believe. If not, then the bill doesn’t appear to make much legal sense to me (meaning: I don’t see what good it will actually do, no matter how good it may feel to propose such a law).

Even if the law were passed, it would not likely be the basis for a modification of a child custody or parent-time order. Living with someone who is a convicted sex offender alone is simply not proof of any harm or sufficient danger to a child (just as living with one convicted of a violent crime, drug use, drug dealing, or other crimes is not). I don’t know the real statistics about the rate of recidivism for sex offenders, but even if we assume for the sake of discussion that it’s very high, that alone would not, in my view, likely be seen by a court as a reason to change custody. Like it or not.

If a parent resided with a sex offender with a history of repeated offenses, that might qualify as too great a risk to a child, but if we’re talking one conviction (maybe even two, sadly), that may not be enough to establish the sex offender as a danger to the children. My opinion is not based upon sympathy for sex offenders but on what I believe the courts would do in the situation you describe. This is why you’ll notice that there has not been a bill proposed that prevents a single parent or divorced parent from marrying or living with a convicted sex offender. I believe it would be found unconstitutional, that it would be found to unduly punish those who don’t re-offend.

Besides, how would one ever prove that a parent who resides with a convicted sex offender or provides him/her with access to that parent’s knows that the individual is a sex offender or worse, “an offense that is substantially similar to” a sex offense (see lines 57 and 58 of the bill, emphasis mine).

No matter how good the intent behind H.B. 140 may be, I foresee far too many adverse unintended consequences and abuses of such a law.

AMENDMENTS TO CUSTODY AND PARENT-TIME

33     Be it enacted by the Legislature of the state of Utah:
34          Section 1. Section 30-3-10.4 is amended to read:
35          30-3-10.4. Modification or termination of order.
36          (1) The court has continuing jurisdiction to make subsequent changes to modify:
37          (a) custody of a child if there is a showing of a substantial and material change in
38     circumstances since the entry of the order; and
39          (b) parent-time for a child if there is a showing that there is a change in circumstances
40     since the entry of the order.
41          (2) A substantial and material change in circumstances under Subsection (1)(a)
42     includes a showing by a parent that the other parent:
43          (a) resides with an individual or provides an individual with access to the child; and
44          (b) knows that the individual:
45          (i) is required to register as a sex offender or a kidnap offender for an offense against a
46     child under Title 77, Chapter 41, Sex and Kidnap Offender Registry;
47          (ii) is required to register as a child abuse offender under Title 77, Chapter 43, Child
48     Abuse Offender Registry; or
49          (iii) has been convicted of:
50          (A) a child abuse offense under Section 76-5-10976-5-109.276-5-109.376-5-114,
51     or 76-5-208;
52          (B) a sexual offense against a child under Title 76, Chapter 5, Part 4, Sexual Offenses;
53          (C) an offense for kidnapping or human trafficking of a child under Title 76, Chapter 5,
54     Part 3, Kidnapping, Trafficking, and Smuggling;
55          (D) a sexual exploitation offense against a child under Title 76, Chapter 5b, Sexual
56     Exploitation Act; or

57          (E) an offense that is substantially similar to an offense under Subsections
58     (2)(b)(iii)(A) through (D).
59          [(1)(3) On the petition of one or both of the parents, or the joint legal or physical
60     custodians if they are not the parents, the court may, after a hearing, modify or terminate an
61     order that established joint legal custody or joint physical custody if:
62          (a) the verified petition or accompanying affidavit initially alleges that admissible
63     evidence will show that the circumstances of the child or one or both parents or joint legal or
64     physical custodians have materially and substantially changed since the entry of the order to be
65     modified;
66          (b) a modification of the terms and conditions of the order would be an improvement
67     for and in the best interest of the child; and
68          (c) (i) both parents have complied in good faith with the dispute resolution procedure
69     in accordance with Subsection 30-3-10.3(7); or
70          (ii) if no dispute resolution procedure is contained in the order that established joint
71     legal custody or joint physical custody, the court orders the parents to participate in a dispute
72     resolution procedure in accordance with Subsection 30-3-10.2(5) unless the parents certify that,
73     in good faith, they have used a dispute resolution procedure to resolve their dispute.
74          [(2)(4) (a) In determining whether the best interest of a child will be served by either
75     modifying or terminating the joint legal custody or joint physical custody order, the court shall,
76     in addition to other factors the court considers relevant, consider the factors outlined in Section
77     30-3-10 and Subsection 30-3-10.2(2).
78          (b) A court order modifying or terminating an existing joint legal custody or joint
79     physical custody order shall contain written findings that:
80          (i) a material and substantial change of circumstance has occurred; and
81          (ii) a modification of the terms and conditions of the order would be an improvement
82     for and in the best interest of the child.
83          (c) The court shall give substantial weight to the existing joint legal custody or joint
84     physical custody order when the child is thriving, happy, and well-adjusted.
85          [(3)(5) The court shall, in every case regarding a petition for termination of a joint
86     legal custody or joint physical custody order, consider reasonable alternatives to preserve the
87     existing order in accordance with Subsection 30-3-10(3). The court may modify the terms and

88     conditions of the existing order in accordance with Subsection 30-3-10(8) and may order the
89     parents to file a parenting plan in accordance with this chapter.
90          [(4)(6) A parent requesting a modification from sole custody to joint legal custody or
91     joint physical custody or both, or any other type of shared parenting arrangement, shall file and
92     serve a proposed parenting plan with the petition to modify in accordance with Section
93     30-3-10.8.
94          [(5)(7) If the court finds that an action under this section is filed or answered
95     frivolously and in a manner designed to harass the other party, the court shall assess attorney
96     fees as costs against the offending party.
97          [(6)(8) If an issue before the court involves custodial responsibility in the event of
98     deployment of one or both parents who are service members, and the service member has not
99     yet been notified of deployment, the court shall resolve the issue based on the standards in
100     Sections 78B-20-306 through 78B-20-309.
101          Section 2. Section 30-3-33 is amended to read:
102          30-3-33. Advisory guidelines for a custody and parent-time arrangement.
103          (1) In addition to the parent-time schedules provided in Sections 30-3-35 and
104     30-3-35.5, the following advisory guidelines are suggested to govern [all parent-time
105     arrangementsa custody and parent-time arrangement between parents.
106          [(1)(2) [Parent-time schedulesA parent-time schedule mutually agreed upon by both
107     parents [areis preferable to a court-imposed solution.
108          [(2)(3) [TheA parent-time schedule shall be used to maximize the continuity and
109     stability of the child’s life.
110          [(3)(4) [Special consideration shall be given by each parentEach parent shall give
111     special consideration to make the child available to attend family functions including funerals,
112     weddings, family reunions, religious holidays, important ceremonies, and other significant
113     events in the life of the child or in the life of either parent which may inadvertently conflict
114     with the parent-time schedule.
115          [(4)(5) (a) The court shall determine the responsibility for the pick up, delivery, and
116     return of the child [shall be determined by the court] when the parent-time order is entered[,
117     and may be changed].
118          (b) The court may change the responsibility described in Subsection (5)(a) at any time

119     a subsequent modification is made to the parent-time order.
120          [(5)(c) If the noncustodial parent will be providing transportation, the custodial parent
121     shall:
122          (i) have the child ready for parent-time at the time the child is to be picked up [and
123     shall]; and
124          (ii) be present at the custodial home or [shall] make reasonable alternate arrangements
125     to receive the child at the time the child is returned.
126          [(6)(d) If the custodial parent will be transporting the child, the noncustodial parent
127     shall:
128          (i) be at the appointed place at the time the noncustodial parent is to receive the child[,
129     and]; and
130          (ii) have the child ready to be picked up at the appointed time and place[,] or have
131     made reasonable alternate arrangements for the custodial parent to pick up the child.
132          [(7)(6) [RegularA parent may not interrupt regular school hours [may not be
133     interrupted] for a school-age child for the exercise of parent-time [by either parent].
134          [(8)(7) The court may:
135          (a) make alterations in the parent-time schedule to reasonably accommodate the work
136     schedule of both parents [and may]; and
137          (b) increase the parent-time allowed to the noncustodial parent but may not diminish
138     the standardized parent-time provided in Sections 30-3-35 and 30-3-35.5.
139          [(9)(8) The court may make alterations in the parent-time schedule to reasonably
140     accommodate the distance between the parties and the expense of exercising parent-time.
141          [(10)(9) [Neither parent-time nor child support is to be withheld due to eitherA
142     parent may not withhold parent-time or child support due to the other parent’s failure to comply
143     with a court-ordered parent-time schedule.
144          [(11)(10) (a) The custodial parent shall notify the noncustodial parent within 24 hours
145     of receiving notice of all significant school, social, sports, and community functions in which
146     the child is participating or being honored[, and the].
147          (b) The noncustodial parent [shall beis entitled to attend and participate fully in the
148     functions described in Subsection (10)(a).
149          [(12)(c) The noncustodial parent shall have access directly to all school reports

150     including preschool and daycare reports and medical records [and shall be notified immediately
151     by the custodial parent].
152          (d) A parent shall immediately notify the other parent in the event of a medical
153     emergency.
154          [(13)(11) Each parent shall provide the other with the parent’s current address and
155     telephone number, email address, and other virtual parent-time access information within 24
156     hours of any change.
157          [(14)(12) (a) Each parent shall permit and encourage, during reasonable hours,
158     reasonable and uncensored communications with the child, in the form of mail privileges and
159     virtual parent-time if the equipment is reasonably available[, provided that if the parties].
160          (b) If the parents cannot agree on whether the equipment is reasonably available, the
161     court shall decide whether the equipment for virtual parent-time is reasonably available[,by
162     taking into consideration:
163          [(a)(i) the best interests of the child;
164          [(b)(ii) each parent’s ability to handle any additional expenses for virtual parent-time;
165     and
166          [(c)(iii) any other factors the court considers material.
167          [(15)(13) (a) Parental care [shall beis presumed to be better care for the child than
168     surrogate care [and the].
169          (b) The court shall encourage the parties to cooperate in allowing the noncustodial
170     parent, if willing and able to transport the children, to provide the child care.
171          (c) Child care arrangements existing during the marriage are preferred as are child care
172     arrangements with nominal or no charge.
173          [(16)(14) Each parent shall:
174          (a) provide all surrogate care providers with the name, current address, and telephone
175     number of the other parent [and shall]; and
176          (b) provide the noncustodial parent with the name, current address, and telephone
177     number of all surrogate care providers unless the court for good cause orders otherwise.
178          [(17)(15) (a) Each parent [shall beis entitled to an equal division of major religious
179     holidays celebrated by the parents[, and the].
180          (b) The parent who celebrates a religious holiday that the other parent does not

181     celebrate shall have the right to be together with the child on the religious holiday.
182          [(18)(16) If the child is on a different parent-time schedule than a sibling, based on
183     Sections 30-3-35 and 30-3-35.5, the parents should consider if an upward deviation for
184     parent-time with all the minor children so that parent-time is uniform between school aged and
185     nonschool aged children, is appropriate.
186          [(19)(17) (a) When one or both parents are servicemembers or contemplating joining
187     a uniformed service, the parents should resolve issues of custodial responsibility in the event of
188     deployment as soon as practicable through reaching a voluntary agreement pursuant to Section
189     78B-20-201 or through court order obtained pursuant to Section 30-3-10.
190          (b) [ServicemembersService members shall ensure their family care plan reflects
191     orders and agreements entered and filed pursuant to Title 78B, Chapter 20, Uniform Deployed
192     Parents Custody, Parent-time, and Visitation Act.
193          (18) A parent shall immediately notify the other parent if:
194          (a) the parent resides with an individual or provides an individual with access to the
195     child; and
196          (b) the parent knows that the individual:
197          (i) is required to register as a sex offender or a kidnap offender for an offense against a
198     child under Title 77, Chapter 41, Sex and Kidnap Offender Registry;
199          (ii) is required to register as a child abuse offender under Title 77, Chapter 43, Child
200     Abuse Offender Registry; or
201          (iii) has been convicted of:
202          (A) a child abuse offense under Section 76-5-10976-5-109.276-5-109.376-5-114,
203     or 76-5-208;
204          (B) a sexual offense against a child under Title 76, Chapter 5, Part 4, Sexual Offenses;
205          (C) an offense for kidnapping or human trafficking of a child under Title 76, Chapter 5,
206     Part 3, Kidnapping, Trafficking, and Smuggling;
207          (D) a sexual exploitation offense against a child under Title 76, Chapter 5b, Sexual
208     Exploitation Act; or
209          (E) an offense that is substantially similar to an offense under Subsections
210     (18)(b)(iii)(A) through (D).

Utah Family Law, LC | divorceutah.com | 801-466-9277

Tags: , , , , , , , , , , , , , ,

House Bill 131 (HB0131 (utah.gov)), entitled “Clergy Child Abuse Reporting Requirements”

Today’s blog post reviews House Bill 131 (HB0131 (utah.gov)), entitled “Clergy Child Abuse Reporting Requirements”. It proposes changes to Utah Code § 80-2-602, the law governing when members of the clergy are and are not required to report child abuse.

Currently, Utah Code § 80-2-602(1) provides, in pertinent part regarding clergy and child abuse reporting:

“[I]f a person . . . has reason to believe that a child is, or has been, the subject of abuse or neglect, or observes a child being subjected to conditions or circumstances that would reasonably result in abuse or neglect, the person shall immediately report the suspected abuse or neglect to the division or to the nearest peace officer or law enforcement agency.” (§ 80-2-602(1)

So far, so good.

(3) Subject to Subsection (4), the reporting requirement described in Subsection (1) does not apply to:

(a) a member of the clergy, with regard to any confession made to the member of the clergy while functioning in the ministerial capacity of the member of the clergy and without the consent of the individual making the confession, if:

(i) the perpetrator made the confession directly to the member of the clergy; and

(ii) the member of the clergy is, under canon law or church doctrine or practice, bound to maintain the confidentiality of the confession[.]

*****

(4)

(a) When a member of the clergy receives information about abuse or neglect from any source other than confession of the perpetrator, the member of the clergy is required to report the information even if the member of the clergy also received information about the abuse or neglect from the confession of the perpetrator.

(b) Exemption of the reporting requirement for an individual described in Subsection (3) does not exempt the individual from any other efforts required by law to prevent further abuse or neglect by the perpetrator.

H.B. 129 would, if passed into law, include this new provision (please note that the numbers out to the side are the line numbers in H.B. 131):

58          (4) (a) Notwithstanding the exemption in Subsection (3)(a), a member of the clergy

59     may report suspected child abuse or neglect.

I have two major concerns about such a provision.

1. Confession, as they say, is good for the soul. It is. Why? Knowing that confession to clergy—and knowing that confession is and shall remain strictly confidential (private)—is often the only thing that summons a sinner’s courage to confront and admit his/her sins. The freedom to confess (to clergy) without fear of arrest or incarceration helps some who are tormented by their sins confront them. Through confession, clergy serve to help the sinner (whose sins are also often crimes) take the first step toward repentance. Take that absolute confidentiality away, and the value of confession is destroyed. Many who would have otherwise confessed will—knowing confession is no longer strictly confidential—not confess and thus not work their way to being publicly accountable. No one benefits from that.

Some well-meaning clergy might believe that taking (or even eliciting) a confession and then reporting the sinner to law enforcement is “for the sinner’s own good,” but that kind of betrayal of trust would then lead to distrusting clergy and then to avoiding and rejecting the very spiritual care we so desperately need both individually and as a society.

2. I’ve been a lawyer for a long time now (27 years, to be exact, as of the date I write this post), and while I don’t claim to know everything, I have experienced “mays” becoming “shalls”; judges and juries go from “I acknowledge that you didn’t have to report” to “I can’t believe you didn’t report!” or “Just because you weren’t required to report does not mean in this instance that you shouldn’t have; have you no decency!” I can easily foresee situations in which a clergy member keeps a confession confidential (as is his/her religious and moral duty) and then be publicly humiliated for it, sued civilly for it, and yes, even somehow convicted criminally for it (where there’s a will, there’s a way). It’s hard enough to be a clergy member as it is. It’s hard enough to encourage and inspire people to repent and better themselves. Eliminate the strictly confidential status of the confession and the essential nature of confession itself is eliminated. When it comes to reporting abuse “clergy may” turns into “clergy shall”. That would be disastrous. If clergy must rat out the sinners in their congregations, then those whom clergy could help the most will avoid and reject the clergy (see above).

To those who will say, “Have you no concern for the abuse victims?,” the answer is clear (hard to accept, perhaps, but no less clear): there is a greater interest than that of the individual victims at stake here. Confidential confession to clergy helps clergy to persuade sinners to recognize and do what is right. We are all sinners to some degree. Diluting the confidentiality of the confession will cause potential penitents to remain in the shadows.

Priest-penitent privilege: Removing it doesn’t help children | Opinion – Deseret News

Utah Family Law, LC | divorceutah.com | 801-466-9277

Tags: , , , , , , , , , , ,

In re A.S.G.-R. – 2023 UT App 126 – permanent custody and guardianship

In re A.S.G.-R. – 2023 UT App 126

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF A.S.G.-R.,

A PERSON UNDER EIGHTEEN YEARS OF AGE.

G.R.,

Appellant,

v.

STATE OF UTAH AND E.G.,

Appellees.

Opinion No. 20220645-CA

Filed October 19, 2023

Fourth District Juvenile Court, Provo Department

The Honorable D. Scott Davis

No. 1196726

Alexandra Mareschal and Julie J. Nelson,

Attorneys for Appellant

Sean D. Reyes, Carol L.C. Verdoia, and John M.

Peterson, Attorneys for Appellee State of Utah

Neil D. Skousen, Attorney for Appellee E.G.

Martha Pierce, Guardian ad Litem

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN D. TENNEY

concurred.

HARRIS, Judge:

¶1        G.R. (Mother) became convinced that E.G. (Father) was sexually abusing their daughter, A.S.G.-R. (Child). Over a nearly two-year period, Mother made or sparked some thirty reports of sexual abuse to Utah’s Division of Child and Family Services (DCFS). After investigation, however, DCFS was unable to discover any credible evidence supporting Mother’s allegations, and therefore did not substantiate any of them. And given the number and repeated nature of the reports, DCFS became concerned that Child was being harmed by the allegations and ensuing investigations, some of which had included invasive physical examinations of Child.

¶2        Eventually, the State filed a petition for protective supervision and obtained an order removing Child from Mother’s custody and placing her with Father. After affording Mother fifteen months of reunification services, including a psychological evaluation and therapy, the juvenile court determined that the services had not resulted in sufficient change to the situation and that Child would be placed at substantial risk if she were returned to Mother, and therefore terminated reunification services. And after a four-day permanency hearing, the court entered a permanent custody and guardianship order in favor of Father.

¶3        Mother now appeals, arguing that the court erred in its decisions to not extend reunification services and to award permanent custody and guardianship to Father. We discern no reversible error in those decisions, and therefore affirm.

BACKGROUND[1]

¶4        Child was born in January 2017. Mother and Father separated shortly before Child’s birth, and about two years later they finalized their divorce. In the decree of divorce, Mother and Father were awarded joint legal custody of Child, but Mother was awarded primary physical custody with Father having statutory parent-time.

¶5        Child welfare officials first became involved with this family in November 2018, when DCFS made a supported finding of domestic violence with Father as the perpetrator and Child as the victim. At some point during this same time frame, Mother obtained a protective order against Father, based on allegations that he committed domestic violence against her also.

¶6        Beginning in May 2019, Mother began to make accusations that Father was sexually abusing Child. Over the course of the next two years, Mother made at least eight direct reports to DCFS of alleged sexual abuse. In addition, Mother reported her allegations to various medical and mental health professionals, some of whom also made reports to DCFS based on Mother’s representations. In total, between May 2019 and February 2021, some thirty separate reports were made to DCFS that Father was sexually abusing Child. DCFS investigated these reports and could not substantiate any of them. In connection with some of these reports, Mother took Child to the hospital. During two of these visits, Child—approximately three years old at the time— was subjected to invasive physical examinations, including one “code-R” rape examination.[2] The examinations yielded no evidence of abuse, and in January 2020 DCFS representatives spoke with Mother about the potential harm that could result to Child from repeated unfounded allegations and needless forensic medical examinations. In addition, in April 2020 the “medical director of Utah’s [Center for] Safe and Healthy Families” program advised Mother that subjecting Child to “any further sexual assault examinations could result in an allegation of abuse for [Mother] due to the harm that unnecessary examinations can cause a child.”

¶7        During this time frame, and in an effort to expand Mother’s understanding of the relevant issues, DCFS opened a “voluntary services case” to provide Mother the opportunity to take advantage of certain services, and Mother agreed to work with DCFS to try to improve the situation.

¶8        During the pendency of the voluntary services case, however, Mother hired a private investigator to investigate the possibility of sexual abuse by Father, and she did not tell DCFS that she had done so. This investigator interviewed Child, using techniques the juvenile court later found to “violate[] nearly every guideline for child forensic interviewing,” including “ask[ing] leading questions, [making] promises to [Child] that could not be kept, and offer[ing Child] ice cream if she would tell the interviewer what ‘daddy’s secret’ is.”

¶9        Despite DCFS’s efforts to assist Mother, the voluntary services case did not have its desired effect. Mother proved unable or unwilling to follow the plan DCFS outlined, and she stopped communicating with the DCFS caseworker.[3] Eventually, DCFS closed the voluntary services case.

¶10 Sometime after that case was closed, Mother—in a continuing effort to present evidence that Father was sexually abusing Child—took a video recording of Child in an incident the juvenile court described as follows: Mother “videotaped [Child], naked on a bed, having her point to where [Father] touches her. On the video, [Mother] touches [Child’s] genitals and has her spread her legs and moves the camera angle close-up to [Child’s] genitals.” Mother provided a copy of this recording to DCFS, but caseworkers declined to view it “based on concerns that it may potentially contain child pornography.” Mother then provided the video recording to law enforcement.

¶11      In January 2021, Mother again brought Child to a hospital, alleging that Child “disclosed that [Father] had put his mouth on [Child’s] vagina just hours prior.” Another invasive physical examination was performed on Child, yet “no male DNA was found on [Child’s] genitals.” DCFS was informed about this incident, presumably from hospital personnel, and investigated it; the investigation included interviewing Child at the Children’s Justice Center. After completing its investigation, DCFS found “no corroborating evidence” and concluded that Child’s “disclosure was coached” and “not credible.”

¶12      The present case was initiated in March 2021 when Mother sought a protective order barring Father from having contact with Child, and the State responded by not only intervening in the protective order case but also by filing this action: a petition for protective supervision services in which the State asked the court to “discontinue” the protective order, conclude that Child was “abused, dependent, and/or neglected,” award DCFS protective supervision of Child, and allow DCFS to place Child in Father’s custody during the pendency of the case.

¶13      At a shelter hearing held about a week later, the juvenile court ordered Child removed from Mother’s custody and placed in the temporary custody of DCFS, which then placed Child, on a preliminary basis, with Father. Child has remained in Father’s care ever since.

¶14      Later, at a subsequent hearing, the court found, based on stipulation, that Child was dependent as to Father. With regard to Father, the court indicated that the primary permanency goal was “Reunification/REMAIN HOME,” and that the concurrent goal was “Remain Home with non-custodial parent.”

¶15      The court held an adjudication hearing as to Mother; at that hearing, Father and the guardian ad litem (the GAL) asserted that Mother’s conduct—making repeated false claims of sexual abuse, thereby subjecting Child to interviews, investigations, and physical examinations—constituted abuse, but the State argued only for a finding of neglect. After the hearing, the court found “no specific evidence” of harm to Child that could support a finding of abuse, but instead determined that Child “is neglected” as to Mother because Child “lacks proper care by reason of the fault or habits of [Mother].” For Mother, the court set a primary permanency goal of “RETURN HOME” and a concurrent permanency goal of “Permanent Custody and Guardianship with a Relative.” The court explained that it was setting “different permanency goals for each parent,” and that for Father, “the primary goal will be” for Child to “remain[] home with him,” with “the concurrent goal of reunification if she is removed from his care.” For Mother, the primary goal was “reunification, with the concurrent goal of guardianship with [a] relative.”

¶16 In connection with setting these permanency goals, the court adopted a Child and Family Plan (the Plan). Under the terms of the Plan, Mother was required to, among other things, “complete a psychological evaluation and follow through with all recommendations”; “participate in individual therapy”; participate in a “parenting class”; and “maintain stable and appropriate housing” for herself and Child. The Plan also required Mother to be “open and honest” in connection with the psychological evaluation, as well as with therapists and other mental health professionals. The Plan provided that its objectives would “be achieved when [Child] is living at [Mother’s] home” and when Mother “is providing a healthy, stable, and age-appropriate environment . . . that supports a strong co-parenting relationship with” Father. No party lodged any objection to the terms of the Plan or to the permanency goals the court set.[4]

¶17 Thereafter, Mother completed a parenting class as well as—after some delay that may or may not have been attributable to her—the required psychological evaluation. The psychologist who conducted the evaluation (Evaluator) diagnosed Mother with “unspecified personality disorder” characterized by “symptoms indicative of borderline, histrionic, and narcissistic personality disorders as well as paranoid-like features.” In particular, Evaluator noted that Mother has “a belief that she can only be understood by a few people,” a “sense of entitlement,” a “lack of empathy,” and a “pervasive distrust and suspiciousness of others” that leads her to sometimes “suspect[], without sufficient basis, that others are harming and deceiving her.” Evaluator offered his view that, “unless [Mother] overcomes her psychopathological features,” she “cannot act in [Child’s] best interest.” He noted that the “obvious recommendation” for Mother would be for her to “pursue an effective treatment program,” but he was doubtful that such a program would succeed in Mother’s case, because Mother “is convinced that she is not the problem” and because, “given her personality disorder features, . . . it would be hard for [Mother] to develop an effective psychotherapeutic alliance with her psychotherapist.”

¶18 Thereafter, DCFS sent Mother a list of recommended therapists, and Mother attended therapy sessions with at least three different mental health professionals. DCFS expressed concern that Mother “was seeking out multiple providers,” some of whom reported that Mother was attempting to “get a second opinion on the psychological evaluation,” and DCFS was worried that Mother was “continu[ing] to report” to these therapists “that [Child] was being sexually abused.” Because of this, DCFS harbored a “concern that there is no clear progress in therapy, due to minimal communication from providers, multiple providers involved and regular changes in therapy.” Mother maintains, however, that she “engaged in all recommended therapy,” an assertion no party apparently contests, although the record is far from clear about what the specific recommendations were and exactly how Mother complied with them.

¶19 After the psychological evaluation was completed, the parties appeared for a review hearing before the court. At that hearing, the results of the evaluation were discussed, and the court commented that, “if the case were closed today and things returned to how they were before the case, [Child] would be at risk of harm by” Mother. The court ordered that Child remain in DCFS custody and placed with Father, with whom the court stated it had “no safety concerns.”

¶20 As the twelve-month permanency hearing approached, Mother moved for an extension of reunification services for “at least 90 days.” Mother argued that she had complied with the Plan, in that she had completed the parenting class and the psychological evaluation and had engaged in therapy. In this motion, Mother also argued that the juvenile court could not enter an order of permanent custody and guardianship with Father, because the district court had already entered a custody order, in connection with the parties’ divorce case, and in Mother’s view the district court should be the court to enter and modify custody orders between the parents. Father opposed Mother’s motion for extended services, but the State did not register opposition. The court scheduled an evidentiary hearing to consider the matter. But due to problems with witness subpoenas, the evidentiary hearing needed to be postponed, which resulted in Mother’s motion for an extension of services being de facto granted: services were then extended for another ninety days, and the postponed evidentiary hearing was turned into a permanency hearing.

¶21      After these delays, the permanency hearing was held, over four nonconsecutive trial days, in April and June 2022. Child’s DCFS caseworker testified that she believed that Mother had been “coaching [Child] into telling people certain things.” And Child’s psychologist testified that she “did not observe significant behaviors or concerns, [or] emotions concerning expressions that would signal to [her] that [Child] has experienced sexual abuse.”

¶22      Evaluator testified at length during the trial, and discussed the specifics of his evaluation of Mother. He discussed his diagnosis that Mother had an “unspecified personality disorder.” He testified that the evaluation took longer than anticipated because Mother “did not involve herself in the evaluation in a forthright manner,” “withheld relevant information that was requested of her,” and “intentionally distorted information.” In his view, Mother did not think that she was the problem or that she had done anything wrong. Evaluator reiterated his view that unless Mother “overcomes her psychopathological features, [she] cannot act in [Child’s] best interest.”

¶23 During her own testimony, Mother continued to cling to her viewpoint that Father had been sexually abusing Child. She testified that “she does not agree with a doctor’s opinion that there was no evidence of sexual abuse.” When asked whether she “still believe[d]” that Father had sexually abused Child, she answered that she did not know, but that some “part of [her]” still believed that abuse took place, and that she still had “a suspicion” in that regard. She did not recognize any impropriety in her multiple reports of sexual abuse to DCFS and other authorities, testifying that she did not “think [she] was doing anything incorrectly” regarding the parenting of Child. And she did not agree that her behavior constituted neglect of Child.

¶24      In this same vein, Mother also called her ongoing therapist to testify at the trial. The therapist testified that he had spent some thirty hours of therapy with Mother and that she had been cooperative. The therapist opined, to the extent he was able to as a fact witness, that Evaluator’s diagnosis of an “unspecified personality disorder” was incorrect, that Mother had not neglected Child by reporting sexual abuse to the authorities, and that Father had indeed sexually abused Child.

¶25      At the conclusion of the trial, the juvenile court took the matter under advisement. A few weeks later, the court issued a written decision containing several different rulings. First, the court declined Mother’s invitation to further extend reunification services, and it terminated those services. Important to the court’s decision in this regard were its findings that—although Mother had taken certain steps, including completing parenting classes, engaging in therapy, and completing the psychological evaluation—Mother had not fully complied with the terms of the Plan, because even after all of these services, Mother “accepted virtually no responsibility for [Child] being in DCFS custody for more than one year,” “demonstrated virtually no insight regarding the harm she has caused” to Child, and offered “varied and conflicted” testimony “regarding whether she still believed” that Father had sexually abused Child, “despite there being no credible evidence that he has.” The court also determined that reunification between Mother and Child was not “probable or likely within the next 90 days” and that the extension of services was not in Child’s best interest.

¶26 Second, the court awarded “permanent custody and guardianship” of Child to Father. Important to the court’s decision in this regard were its findings that “return of [Child] to [Mother’s] care would create a substantial risk of detriment to [Child’s] physical or emotional well-being,” that there is “no credible evidence” that Father has ever sexually abused Child, and that Child “seems to be thriving and well-adjusted [and] well cared for” in Father’s care.

¶27 Finally, after denying Mother’s request for additional reunification services and granting permanent custody and guardianship in favor of Father, the court terminated its jurisdiction in the case.

ISSUES AND STANDARDS OF REVIEW

¶28 Mother now appeals, and she raises two issues for our consideration. First, she challenges the juvenile court’s decision to terminate reunification services. The juvenile court is “in the best position to evaluate the credibility of witnesses, the parent’s level of participation in reunification services, and whether services were appropriately tailored to remedy the problems that led to the child’s removal.” In re D.R., 2022 UT App 124, ¶ 9, 521 P.3d 545 (quotation simplified), cert. denied, 525 P.3d 1264 (Utah 2023). Accordingly, “absent a demonstration that the determination was clearly in error, we will not disturb the determination” to terminate reunification services. See id. (quotation simplified).

¶29      Second, Mother challenges the juvenile court’s decision to award permanent custody and guardianship to Father, her fellow parent. As part of this challenge, she takes issue with the court setting slightly different permanency goals for each parent, and with the court accomplishing two separate objectives—namely, choosing among those goals and awarding permanent custody to Father—all in connection with the same hearing. In the main, Mother’s challenges in this regard involve questions of statutory interpretation, which “are questions of law that we review for correctness.” In re S.Y.T., 2011 UT App 407, ¶ 9, 267 P.3d 930 (quotation simplified). But to the extent that Mother here challenges the court’s underlying factual findings, we adopt a more deferential standard of review. See In re L.M., 2013 UT App 191, ¶ 6, 308 P.3d 553 (“We review the juvenile court’s factual findings for clear error . . . .” (quotation simplified)), cert. denied, 320 P.3d 676 (Utah 2014).[5]

ANALYSIS

I

¶30      Mother first challenges the juvenile court’s decision to terminate reunification services. For the reasons discussed, we discern no clear error in the court’s decision.

¶31 When a juvenile court removes a child from a parent’s custody, it may afford the parent the opportunity to take advantage of certain services—e.g., mental health counseling or parenting classes—designed to address the problems that led to removal and aimed at facilitating reunification between parent and child. See Utah Code § 80-3-406. However, due to the need for swift permanence in child welfare cases, the duration of reunification services may not ordinarily “exceed 12 months” from the date of removal. See id. § 80-3-406(13)(a); see also id. § 80­3-409(6). A juvenile court may, however, extend reunification services by an additional “90 days”—for a total of fifteen months—if the court finds, by a preponderance of the evidence, “that (i) there has been substantial compliance with the child and family plan; (ii) reunification is probable within that 90-day period; and (iii) the extension is in the best interest of the minor.” Id. § 80-3­409(7)(a). And in exceptional cases, the court may extend services for a second ninety-day period—for a total of eighteen months— but only if the court can make those same three findings by clear and convincing evidenceId. § 80-3-409(7)(c).

¶32      In this case, Child was removed from Mother’s custody at a shelter hearing in March 2021. Thus, reunification services were to presumptively end in March 2022, unless the court made findings sufficient to support an extension. In early April 2022, the court commenced an evidentiary hearing for the purpose of determining whether reunification services should be terminated or extended but, due to problems with witness subpoenas, the evidentiary hearing needed to be postponed, which resulted in a de facto extension of reunification services for another three months, into June 2022. Finally, at the conclusion of the four-day hearing that same month, the court ordered that reunification services be terminated. In its order, the court—presumably out of an abundance of caution given the timing of the hearing—stated that it was “not able to find by a preponderance of the evidence, and certainly not by clear and convincing evidence, that [Mother] is in substantial compliance with [the Plan], that reunification . . . is probable or likely within the next 90 days, or that extension of services for [Mother] is in [Child’s] best interest.”

¶33 Mother challenges this decision, asserting that it goes against the clear weight of the evidence because, she asserts, she at least substantially complied with the Plan. We acknowledge that Mother did take certain actions that the Plan required, such as completing the psychological evaluation and participating in parenting classes and individual therapy, and we therefore agree with Mother’s assertion that she complied with many—if not necessarily all[6]—of the Plan’s individual requirements.

¶34      But even taking Mother’s assertion—that she completed all of the Plan’s individual subsidiary tasks—at face value, that does not necessarily compel the conclusion that Mother substantially complied with the Plan, because in this case Mother’s efforts did not bear fruit. That is, at the end of fifteen months of reunification services, Mother had not rectified the problem that led to the removal of Child from her custody. The Plan explicitly stated that its goals would be “achieved when [Child] is living at [Mother’s] home [and] where Mother is providing a healthy, stable, and age-appropriate environment . . . that supports a strong co-parenting relationship with [Father].” Child was removed from Mother’s custody because Child lacked “proper care by reason of the fault or habits of [Mother]” due to Mother’s continued unsupported reports to authorities that Father was sexually abusing Child. After fifteen months of services, the court—based at least in part on Mother’s own testimony at the evidentiary hearing— determined that the original problem still existed, and that Child could not therefore safely be returned to Mother’s custody. It is far from clear error for a juvenile court to determine that a parent who has completed many of a child and family plan’s individual requirements, but who has still not meaningfully addressed the underlying problem the plan was designed to solve, has not substantially complied with the plan.

¶35      Moreover, even if we were to assume, for the purposes of the discussion, that Mother’s actions constituted substantial compliance with the Plan, Mother must also grapple with the juvenile court’s findings that reunification was not probable within the next ninety days, and that another extension of reunification services was not in Child’s best interest. See Utah Code § 80-3-409(7)(a)(ii), (iii); see also In re H.C., 2022 UT App 146, ¶ 54, 523 P.3d 736 (“Although [the mother] subsequently complied with the child and family plan, the court nonetheless determined that [the child] could not safely be returned to her care because it found that the return posed a substantial risk of detriment to [the child’s] physical or emotional well-being.”), cert. denied, 527 P.3d 1106 (Utah 2023). While Mother spends many pages in her brief contesting the court’s “substantial compliance” finding, she does not directly engage with the court’s findings that, given her lack of progress on solving the underlying problem, she had not shown—by either evidentiary standard— that reunification was probable in the next ninety days or that reunification was in Child’s best interest. And based on our review of the record, we discern no clear error in these findings.

¶36      Accordingly, we discern no error, let alone reversible error, in the juvenile court’s decision to terminate reunification services.

II

¶37 Next, Mother challenges the juvenile court’s decision to award permanent custody and guardianship to Father. Her challenge in this regard is multi-faceted. First, she challenges the substance of the court’s decision, and asserts that the court—by considering its options limited to those set forth in section 80-3­409(4)(b) of the Utah Code—erred in its interpretation of the governing statute. And in connection with this argument, Mother asks us to overrule one of our recent opinions. Second, Mother challenges the procedure the court used in reaching its decision. For the reasons discussed, we reject Mother’s arguments.

A

¶38      Under our law, in any case in which 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.” See Utah Code § 80-3-409(2)(a). And “[i]f 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.” Id. § 80-3-409(2)(b).

¶39      In this case, as already discussed, the juvenile court ordered reunification services for Mother, and therefore needed to confront, at the permanency hearing, the question of whether Child faced “substantial risk of detriment to her physical and emotional well-being if returned to [Mother’s] care.” In its findings and conclusions entered following that hearing, the court specifically found, by “both a preponderance of the evidence” and by “clear and convincing evidence, that return of [Child] to [Mother’s] care would create a substantial risk of detriment to [Child’s] physical or emotional well-being.” Mother does not directly challenge that finding on appeal.[7]

¶40      In situations where a juvenile court makes a finding of risk and therefore determines that a child cannot be returned to the parent’s custody, our law then requires the court to do certain things: “(a) order termination of reunification services to the parent; (b) make a final determination regarding whether termination of parental rights, adoption, or permanent custody and guardianship is the most appropriate final plan for the minor . . . ; and (c) . . . establish a concurrent permanency plan that identifies the second most appropriate final plan for the minor, if appropriate.” Id. § 80-3-409(4). As discussed above, the court terminated reunification services, and did not err by so doing.

¶41      The court then considered the three options presented by the second part of the governing statute: termination of parental rights, adoption, or permanent custody and guardianship.[8] See id. § 80-3-409(4)(b). The court determined that permanent custody and guardianship with Father was the most appropriate of those three options.

¶42      Mother challenges the substance of this determination, and she makes two specific arguments. First, she asserts that the statutory subsection the court believed governed the situation— section 80-3-409(4) of the Utah Code—doesn’t actually govern, because in Mother’s view Child was “returned to” a parent (Father) after the permanency hearing. Second, and relatedly, Mother acknowledges that one of our recent decisions—In re H.C., 2022 UT App 146, 523 P.3d 736, cert. denied, 527 P.3d 1106 (Utah 2023)—interpreted the governing statute in a manner unfavorable to her, and she asks us to overrule that recent case. We find neither of Mother’s arguments persuasive.

1

¶43 Mother’s first argument challenges the juvenile court’s interpretation of statutory text. In particular, she notes that a threshold requirement of the governing statute is that the minor not be “returned to the minor’s parent or guardian at the permanency hearing.” See Utah Code § 80-3-409(4). Only if a child is not “returned to the minor’s parent” at the permanency hearing does a court need to choose from one of the three options set forth in subsection (4)(b): termination, adoption, or permanent custody and guardianship. See id. If a child is “returned to the minor’s parent,” then a court presumably could select some other option not listed in subsection (4)(b). As Mother sees it, the statutory reference to “the minor’s parent” includes not only the parent from whom the child was removed and with regard to whom the “substantial risk” determination is being made, but also the child’s other parent. And she asserts that, because Child was placed in the custody of Father—Child’s other parent—after the permanency hearing, the court erred by considering itself limited to the three options set out in subsection (4)(b).

¶44      Our “overarching goal” in interpreting a statute is “to implement the intent of the legislature.” See State v. Rushton, 2017 UT 21, ¶ 11, 395 P.3d 92. In attempting to ascertain that intent, we start with “the language and structure of the statute.” Id. “Often, statutory text may not be plain when read in isolation, but may become so in light of its linguistic, structural, and statutory context.” Id. (quotation simplified). “The reverse is equally true: words or phrases may appear unambiguous when read in isolation, but become ambiguous when read in context.” Id. For this reason, “we read the plain language of the statute as a whole, and interpret its provisions in harmony with other statutes in the same chapter and related chapters, avoiding any interpretation which renders parts or words in a statute inoperative or superfluous in order to give effect to every word in the statute.” Id. (quotation simplified).

¶45 In our view, the phrase “the minor’s parent,” as used in section 80-3-409(4), refers only to the parent from whom the child was removed, who was offered reunification services, and to whom return of the child “would create a substantial risk of detriment” to the child. It does not refer to another parent with whom the child is currently placed, who has not been ordered to complete any reunification services, and with regard to whom the court has not made any “substantial risk” determination. Indeed, the thrust of this entire statutory section has to do with whether a child will be reunited with a parent from whom the child has been removed and who has received reunification services. See Utah Code § 80-3-409. As already noted, subsection (2) requires a court to make a threshold determination about whether the “minor may safely be returned to the custody of the minor’s parent,” something that may not occur if “return of the minor to the minor’s parent would create a substantial risk of detriment” to the minor. Id. § 80-3-409(2)(a), (b). The verb “returned” is meaningful here: one does not “return” to a situation in which one has never been in the first place. See Return,    Merriam-Webster, https://www.merriam-webster.com/dictionary/return            [https://perma.cc/Y4YF-3ENP]
(defining “return” as “to go back or come back again”). In the subsection (2) context, the phrase “the minor’s parent” clearly refers to the parent from whom the minor was removed, who received reunification services, and with regard to whom the “substantial risk” determination is being made; indeed, the statute instructs juvenile courts that are making the subsection (2) threshold determination to consider, among other things, whether the parent in question has demonstrated “progress” and whether the parent has “cooperated and used the services provided.” See Utah Code § 80-3-409(3)(a)(iv), (v). In our view, it would be nonsensical to apply this phrase to the minor’s other parent in a situation where the child was already in the custody of that parent at the time of the permanency hearing, where that parent did not receive reunification services, and where the court made no “substantial risk” determination concerning that parent at that hearing. Indeed, at oral argument before this court, Mother conceded that the phrase “the minor’s parent,” as used in subsection (2), must refer solely to the parent who received reunification services and with regard to whom the “substantial risk” determination is being made.

¶46 That same phrase—“the minor’s parent”—used two subsections later means the same thing. As noted, we read statutes as a whole, including all of their subsections, and “interpret [their] provisions in harmony with other statutes in the same chapter and related chapters.” See Rushton, 2017 UT 21, ¶ 11 (quotation simplified). Under “the canon of consistent meaning,” there is a “presumption that the established meaning of a word in a given body of law carries over to other uses of the same term used elsewhere within that same law.” In re Childers-Gray, 2021 UT 13, ¶ 142, 487 P.3d 96 (Lee, J., dissenting). And the “canon of consistent meaning is at its strongest when it is applied to a term used in neighboring subparts of the same statutory provision.” Irving Place Assocs. v. 628 Park Ave, LLC, 2015 UT 91, ¶ 21, 362 P.3d 1241; see also Barneck v. Utah Dep’t of Transp., 2015 UT 50, ¶ 31, 353 P.3d 140 (determining that a term “cannot properly mean one thing as applied to two of the objects in a series . . . but something else as applied to the other object in the same series”). Thus, when assessing the meaning of the phrase “the minor’s parent” in subsection (4), it is highly relevant how that phrase is used in subsection (2). And we conclude that, interpreted in its proper context, the phrase—as used in subsection (4) as well as subsection (2)—refers only to the parent from whom the child was removed, who received reunification services, and with regard to whom the court is making the “substantial risk” determination, and not to another parent who does not fit those criteria.

¶47      Accordingly, we reject Mother’s argument that subsection 409(4) has no application to her situation. By the plain terms of that statutory section, the juvenile court—as soon as it determined that Child could not safely be returned to Mother—was obligated to apply that statutory subsection according to its text.

2

¶48      Under the text of that statutory subsection, a court that has made a “substantial risk” determination must terminate reunification services. See Utah Code § 80-3-409(4)(a). At that point, the statute requires the court to “make a final determination regarding whether termination of parental rights, adoption, or permanent custody and guardianship is the most appropriate final plan for the minor.” Id. § 80-3-409(4)(b). The language of this statutory subsection therefore speaks of only three options, and requires the court in this situation to choose one of them. And we have recently interpreted this language according to its text, even as applied to disputes between parents. See In re H.C., 2022 UT App 146, 523 P.3d 736, cert. denied, 527 P.3d 1106 (Utah 2023).

¶49      Yet here, Mother nevertheless asserts that, at least in cases involving disputes between two parents, juvenile courts ought to be allowed to choose a different option: entry of a simple custody order that is controlled by the usual standards governing entry and modification of custody orders in divorce court. Mother asserts that awarding a parent the status of “guardian” makes no sense, given that a parent already has all the rights that a guardian has. And she asserts that entering orders of permanent guardianship as between parents has the effect—one she posits was unintended—of preventing one parent from being able to seek modification of the custody order.

¶50      To her credit, Mother recognizes that our recent holding in In re H.C. forecloses her argument for a fourth option. In that case, the parents of a child were divorced, with a parenting plan that gave primary custody to the mother. Id. ¶ 2. But later, the juvenile court determined that the child had been neglected by the mother, and the child was placed in the care of the father. Id. ¶¶ 4, 8. After the permanency hearing, the juvenile court determined that the child would be at substantial risk if returned to the mother’s custody, and the court placed the child with the father under an order of permanent custody and guardianship. Id. ¶¶ 28, 38. On appeal, we affirmed the juvenile court’s decision, and we interpreted subsection 409(4)(b) as limiting the juvenile court to the three options set forth therein. Id. ¶ 58. We held that subsection 409(4)(b) “leaves a juvenile court judge with no discretion” to do anything else, and we specifically stated that the statute “does not vest the juvenile court with the authority to defer to the district court” with regard to custody of the adjudicated child. Id. (quotation simplified).

¶51      In an effort to get around this roadblock, Mother asks us to overrule In re H.C. We do possess the authority to overrule our own precedent in appropriate cases. See State v. Legg, 2018 UT 12, ¶ 11, 417 P.3d 592 (stating that one panel of this court “retains the right to overrule another panel’s decision if the appropriate standard is met”). “But we do not do so lightly,” given our respect for the principle of stare decisis, which ordinarily requires us to defer to “the first decision by a court on a particular question.” See State v. Garcia-Lorenzo, 2022 UT App 101, ¶¶ 42, 44, 517 P.3d 424 (quotation simplified), cert. granted, 525 P.3d 1263 (Utah 2022).

¶52      “Before we may overrule one of our precedents, we must engage in the two-part exercise required by our supreme court in such situations.” Id. ¶ 45. “First, we must assess the correctness of the precedent, and specifically examine the persuasiveness of the authority and reasoning on which the precedent was originally based.” Id. (quotation simplified). “Second, we must assess the practical effect of the precedent, including considerations such as the age of the precedent, how well it has worked in practice, its consistency with other legal principles, and the extent to which people’s reliance on the precedent would create injustice or hardship if it were overturned.” Id. (quotation simplified). Both parts of the test must be satisfied before we may overrule a precedent. See id. In this case, we need not discuss the second part because, in our view, the first one is not satisfied.

¶53 With regard to the first part—the correctness of the precedent—Mother asserts that our decision in In re H.C. “upends the district court’s jurisdiction over custody matters and imposes an unnecessarily restrictive scheme on custody between two parents.” She points out that, when a child is placed with the other parent after a permanency hearing, “the child isn’t in ‘legal limbo’” and “all that is left to determine is what [the] custody [arrangement] between the parents will look like.” And she maintains that, if subsection 409(4)(b) is interpreted to require courts to order permanent custody and guardianship in favor of one of the parents, that result would serve to “override[] district court custody orders” and would create a “super sole custody” arrangement in which “the non-guardian parent can never modify the terms of the guardianship.” She asserts that this is an “absurd result” that “cannot be what the legislature intended.”

¶54 But in our view, the panel’s reasoning in In re H.C. was sound. There, the court analyzed the text of subsection 409(4)(b) and concluded that the language used by the legislature limited juvenile courts in this situation to the three options set forth in the text of the statute. See In re H.C., 2022 UT App 146, ¶¶ 58–59. Our analysis of that same text leads us to the same conclusion.

¶55      Moreover, Mother overlooks the fact that the panel in In re H.C. considered many of the same arguments that Mother is advancing here. In that case, the appellant asserted that “juvenile courts should not be deciding custody between two fit parents.” Id. ¶ 52 (quotation simplified). And the appellant complained that an order of permanent custody and guardianship in favor of the other parent may prevent her “from petitioning for custodial change in the future.” Id. ¶ 53. We rejected these arguments, in part, by noting that, given the court’s adjudication rulings, “this was not merely a custody proceeding ‘between two fit parents.’” Id. ¶ 54. And we acknowledged the remainder of these arguments in a footnote, editorializing that “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.” Id. ¶ 59 n.13. But we found these arguments nevertheless unpersuasive in light of the text of the “statutory regimen that we [were] called upon to interpret and apply.” Id.

¶56      We share the sentiment of the panel in In re H.C. that the text of the governing statute compels the interpretation described there. The text selected and enacted by our legislature limits juvenile courts to just three options in this situation. See id. ¶¶ 58– 59 & n.13 (stating that “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 which parental neglect is found and reunification services are terminated”). If our legislature intended a different result, it can always amend the statute to provide for additional options—for instance, entry of a simple custody order awarding primary physical custody to the other parent, and allowing the district court to manage things from there—that a juvenile court might be able to apply in cases involving disputes between two parents. But for now, the text of the governing statute speaks of only three options, applicable in all cases, and we must apply the statute as written, Mother’s policy arguments notwithstanding.[9]

¶57 For all of these reasons, we decline Mother’s invitation to overrule In re H.C. That case—and the statutory text interpreted therein—compels the conclusion that the juvenile court, in this case, had only three options after concluding that it could not return Child to Mother’s custody: it had to either (a) terminate Mother’s parental rights, (b) work toward adoption, or (c) enter an order of permanent custody and guardianship with someone other than the parent at issue. See Utah Code § 80-3-409(4)(b); see also In re H.C., 2022 UT App 146, ¶¶ 58–59. The juvenile court, by selecting permanent custody and guardianship in favor of Father, chose one of the available options.[10] In so doing, the court properly followed the governing statute, and did not misinterpret it. We therefore reject Mother’s second substantive argument.

B

¶58      Finally, Mother makes two challenges to the procedure the juvenile court employed in arriving at its conclusion to award permanent custody and guardianship to Father. We reject both challenges.

¶59 First, Mother claims that the court acted inappropriately when it took the following two actions in the same ruling and after the same hearing: (a) it changed Child’s final permanency goal to permanent custody and guardianship and (b) it entered an order effectuating the permanent custody and guardianship. As Mother sees it, the court was required “to first change the permanency goals . . . and then hold a review hearing (possibly another evidentiary hearing) to determine whether the final permanency goal is established.” Mother notes that “nothing in section 409 permits a juvenile court to” accomplish both things in the same ruling and after the same hearing. But Mother cites no statute or appellate opinion forbidding the court from doing so and, in this situation, we see no reason why the court could not have proceeded as it did.

¶60 Had the court chosen “adoption” as the primary permanency goal following the permanency hearing, then perhaps Mother would have a point: as a practical matter, setting adoption as the goal entails a fair bit of extra work. To facilitate an adoption, the parent’s rights would need to be terminated, and to make that happen, the State (or another petitioner) would need to file a petition for termination of parental rights, which would need to be litigated. And the juvenile court would also need to concern itself, in the event the parent’s rights were terminated, with finding an appropriate adoptive placement for the child.

¶61 But where the court selects permanent custody and guardianship as the primary permanency goal, and the child is already placed with the person to whom custody and guardianship is to be given, there are not necessarily any additional steps that the court needs to take before making that goal a reality. Certainly, in this case Mother doesn’t identify any additional work that needed to be done in the interim. And as noted, Mother points to no statute or governing case forbidding the juvenile court, in cases like this one, from proceeding efficiently and entering the order of guardianship in the same order as it selects the primary permanency goal. Mother has therefore not carried her burden of demonstrating error.

¶62 Second, Mother takes issue with the juvenile court’s decision, earlier in the case, to set different permanency goals for each parent. As noted above, after adjudicating Child dependent as to Father, the court initially set the primary permanency goal, as to Father, as “Reunification/REMAIN HOME,” and the concurrent permanency goal as “Remain Home with non­custodial parent.” Later, after adjudicating Child neglected as to Mother, the court set a primary permanency goal, as to Mother, of “RETURN HOME” and a concurrent permanency goal of “Permanent Custody and Guardianship with a Relative.” The court explained that it was setting “different permanency goals for each parent,” and that for Father, “the primary goal will be” for Child to “remain[] home with him,” with “the concurrent goal of reunification if she is removed from his care.” For Mother, the primary permanency goal was “reunification, with the concurrent goal of guardianship with [a] relative.” Mother challenges this procedure as improper, asserting that this choice made “it additionally difficult for any parent to determine what the effect of abandoning one of the primary plans would be.” But Mother cites no statute or governing case forbidding the court from engaging in this procedure, and she overlooks the fact that she did not object to these goals when they were set. In addition, Mother does not articulate how the court’s decision to set slightly different permanency goals vis-à-vis each parent resulted in any harm to her at the end of the case. Accordingly, Mother has not carried her burden of demonstrating reversible error.[11]

CONCLUSION

¶63 We discern no clear error in the juvenile court’s decision to terminate reunification services. And we reject Mother’s challenges—both substantive and procedural—to the court’s award of permanent custody and guardianship to Father.

¶64 Affirmed.

Utah Family Law, LC | divorceutah.com | 801-466-9277

Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

Do Abusive Parents Get Custody of Their Children? Can Relatives Get Custody Instead?

Do abusive parents get sole custody of their children, even when their children don’t want them to have it? If the children want to stay with a relative who can take care of them instead, can the court award the relative custody of the children and only allow the abusive parents visitation rights?

Do abusive parents get sole custody even when their children don’t want that? Yes, that can happen. Just because it can happen does not mean it will always happen, but there are many times when abusive parents still get custody of their children. The reasons can vary, but usually they are (in no particular order):

  • the parents deny being abusive, and if there isn’t enough evidence to refute their denials, the court gets fooled into believing the parents.
  • the parents may be abusive, but not considered abusive enough to justify stripping them of their parental rights to child custody; in those situations, even though the court may not deprive the parents of child custody, the court can and often will condition the keeping of their custodial rights upon the parents refraining from future abuse and completing courses on good and proper parenting.

If children want to stay with a relative who can take care of them, can the court award the relative custody of the children and only allow the abusive parents visitation? Yes, that can happen too, but only if the court finds sufficiently compelling reasons to infringe upon the parents rights of custody in favor of someone else exercising custody of the children. a child merely expressing a preference for someone other than his or her parents is never enough to justify a change of custody from the parents to someone else. Interfering with the parents’ rights to custody of their own children is very difficult because those parental rights are considered some of the most basic of human and fundamental rights.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Do-abusive-parents-get-sole-custody-even-when-their-children-doesnt-want-to-If-a-child-wants-to-stay-with-a-relative-who-can-take-care-of-them-can-the-court-grant-them-and-only-allow-visitation-rights-to-the-abusive/answer/Eric-Johnson-311

Tags: , , , , , , ,

Do judges sometimes feel overburdened by the responsibilities of their job?

Yes, and for good reason. First, let me be unusually but sincerely candid: many judges and many of the actions that judges take disappoint me. There are some excellent judges on the bench who are clearly skilled in the law and know how to apply it accurately, justly, and equitably. Would that all judges lived up to this standard. But not all judges do. I mention this so that the context of my answer to your question is clear.

Being a judge is, in my opinion, mostly a thankless job. Sure, there are some obvious perks to being a judge, including, but not limited to, a good salary, state and federal holidays off, most judges receive a generous pension when they retire, the prestige of being called “Your Honor,” but the burdens of being a judge are in some ways unimaginable. Can you conceive of sentencing someone to life in prison or death? Or even sentencing someone to 5 to 10 years in prison when you’re not certain of his or her guilt? Can you imagine what it must be like to spend your work week, week after week, hearing hundreds of stories of lying, cheating, robbing, destroying property, assaulting, raping and murdering? It all takes an inevitable toll on even the strongest of people. Those judges who do the best they can and do the job well day after day, year-over-year deserve not only our respect, but our sympathy, our thanks, and support.

All that stated, there are clearly some judges who are not cut out for the job and need to quit. Some need to quit because they are not competent as judges. Some need to quit because, while they might have been up to the demands of the job in the beginning, they aren’t anymore. Some need to quit before they become so jaded that they cannot give the job and the people who come before them the attention both the job–and the cases they hear and decide–deserve.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Do-judges-sometimes-feel-overburdened-by-the-responsibilities-of-their-job/answer/Eric-Johnson-311?prompt_topic_bio=1

Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

Which Is Better: spending thousands on GAL/custody evaluator or $0 on a judge interview?

Which Is Better: spending thousands on GAL/custody evaluator or $0 on a judge interview?

How could it be better to spend thousands on a GAL or custody evaluator when the judge can interview children free of charge?

This post is the sixth in series of 15 posts on the subject of custody evaluations and the appointment of guardians ad litem (“GALs” for short) in Utah child custody cases when the judge could simply interview the children instead. You do not have to read all 16 posts to benefit from this series. Read as many or as few as you wish.

The purpose of this series is to make the case for the proposition that an interview by the judge is a faster, more accurate, more particular, more reliable, and less expensive form of evidence than what a GAL and/or custody evaluator provides.

How could it be better to spend thousands on a GAL or custody evaluator when the judge can interview children free of charge? In 24 years of law practice, I have never had a judge agree to interview children in lieu of having a private guardian ad litem appointed and/or having a custody evaluator appointed. I submit that it’s not because my arguments lack merit. Indeed, I have yet to encounter a valid, let alone a compelling, argument for why it is better to spend thousands, even tens of thousands, on guardians ad litem and or custody evaluators when the judge can interview children directly, free of charge (as opposed to obtaining so-called “evidence” via court-sponsored hearsay in the form of second, and often third hand information of interviews with the children that allegedly took place but were never made part of the court’s record). There are two main excuses one will hear for why judges should not interview children: 1) judges interviewing children is inherently traumatic for children and/or “puts them in the middle of their parents’ disputes” and thus unjustifiably traumatizes them too; and 2) judges are not qualified to interview children where guardians ad litem and or custody evaluators, and only guardians had lied them and/or custody evaluators, are qualified to do so. Neither justification holds water, as I have explained and will continue to explain in these videos. If anyone would like to hold a debate on this subject, it would be of benefit to everyone involved in child custody disputes, from the child to the parents to the parent’s respective lawyers to the judge.

Utah Family Law, LC | divorceutah.com | 801-466-9277

Tags: , , , , , , , , , , , , , , , , , , , , , , , , ,

2020 UT App 35 – V.M. v. Division of Child and Family Services

2020 UT App 35 THE UTAH COURT OF APPEALS

V.M., Appellant,
v.
DIVISION OF CHILD AND FAMILY SERVICES, Appellee.

Opinion
No. 20180906-CA
Filed March 5, 2020
Fourth District Juvenile Court, Provo Department
The Honorable Brent H. Bartholomew
No. 1155142
Andrew G. Deiss and John Robinson Jr., Attorneys for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Attorneys for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES KATE APPLEBY and DAVID N. MORTENSEN concurred.

POHLMAN, Judge:

¶1        V.M. appeals the juvenile court’s order substantiating a finding of the Division of Child and Family Services (DCFS) that V.M. sexually abused a child. We affirm.

BACKGROUND

¶2        In 2015, a minor child (Child) alleged that V.M., her brother-in-law, sexually abused her. The State charged V.M. with aggravated sexual abuse of a child. The criminal case went to trial and resulted in an acquittal.

¶3        Separately from the criminal case, DCFS conducted an investigation into the allegation against V.M. As a result of that investigation, DCFS made and entered a supported finding against V.M. for sexual abuse of a child. See Utah Code Ann. § 62A-4a-101(41) (LexisNexis 2018) (“‘Supported’ means a finding by the division based on the evidence available at the completion of an investigation that there is a reasonable basis to conclude that abuse, neglect, or dependency occurred.”).

¶4        Although a copy of the agency’s decision was sent to V.M.’s last known address, V.M. never received it. Instead, he discovered it in 2017 when he underwent a background check. He requested an administrative hearing on the matter. After an internal review, DCFS upheld its supported finding of sexual abuse of a child.

¶5        V.M. then initiated the present action in juvenile court, seeking judicial review of DCFS’s decision. See generally id. § 63G-4-402(1)(a)(iii) (2016) (explaining that juvenile courts have jurisdiction over all state agency actions relating to “substantiated findings of abuse or neglect made by the Division of Child and Family Services”); id. § 78A-6-323(1)(a) (2018) (providing that upon the filing of a petition by DCFS “or any interested person” informing the court “that the division has made a supported finding that a person committed a severe type of child abuse or neglect,” the juvenile court shall, among other things, “make a finding of substantiated, unsubstantiated, or without merit”).

¶6        The juvenile court held a two-day trial in September 2018. At the beginning of the trial, DCFS announced its intention to play the video of Child’s forensic interview, and it indicated its understanding that V.M. would play the audio of Child’s testimony at his criminal trial and then Child would testify in the juvenile court. When the juvenile court asked whether that procedure was acceptable, V.M. indicated that it was “fine with [him].” The trial then proceeded in that fashion.

¶7        While the audio of Child’s trial testimony played, V.M. observed that the “quality [of the audio] is a little hard” and offered to provide a transcript for the juvenile court and others to use for “follow[ing] along” with the audio. V.M. then moved to admit the transcript of Child’s trial testimony, and the court granted the motion.

¶8        When Child testified in the juvenile court, she said that she remembered her forensic interview and testifying at V.M.’s criminal trial. When asked whether she remembered the specifics of her statements during the forensic interview, Child responded, “Not the specifics, but like vaguely. I just remember I was just nervous, and I just told everything I knew.” When DCFS asked Child whether she told the truth in the forensic interview and at the criminal trial, Child responded affirmatively. In the juvenile court proceedings, however, Child did not independently testify about the abuse.

¶9        Child’s mother testified, as did an employee of Brigham Young University (BYU) responsible for investigating allegations of sexual misconduct involving students. The employee testified that based on his investigation of V.M., who was a BYU student at the time of the alleged abuse, there was insufficient evidence to find that V.M. had violated BYU’s policies on sexual misconduct and child protection.

¶10      On the second day of trial in juvenile court, V.M. asked to telephone his next witness: the individual (Forensic Interviewer) who conducted the forensic interview of Child. When the court reached Forensic Interviewer by phone, she said that she was unavailable to testify. V.M. then proposed that the court read Forensic Interviewer’s testimony from V.M.’s criminal trial, telling the court, “[E]verything that you need is in the transcript.” The juvenile court admitted the transcript of that testimony into evidence. At V.M.’s request, the court also admitted the transcripts of his ex-wife’s testimony from his criminal trial. Additionally, V.M. played the audio recording of a conversation between Child and her parents. V.M. also asked for and received the admission of a transcript of that conversation; the transcript of Child’s aunt’s testimony at the criminal trial; and two declarations from the aunt, which, V.M. asserted, had bearing on Child’s “reputation for truthfulness.” Finally, V.M. testified before the juvenile court and denied abusing Child.

¶11 After trial, the juvenile court entered a written order. It found, based on a preponderance of the evidence, that when Child was eleven years old and visiting the home of her sister and V.M., V.M. sexually abused Child.[1]

¶12 The juvenile court found that shortly after the abuse, Child’s parents spoke with Child to find out what had happened. The court found that the parents’ inquiry, which they recorded, “was innocently done and did not taint the evidence later presented by [Child].”

¶13      The juvenile court further found that Child’s parents also arranged for Child to talk to a professional experienced in working with victims of sexual abuse. Once or twice before the interview with Forensic Interviewer, Child spoke with the professional because Child was “uneasy about talking about what [V.M.] had done to her.” The juvenile court found that the purpose of these conversations was for “strength and support” and “not for coaching [Child] on what to say” to Forensic Interviewer.

¶14      The juvenile court also found that no one had told Child “what to say” during the forensic interview. The adults in Child’s life “all encouraged [Child] to tell the truth about the incident” with V.M., and the court found that Child did in fact tell the truth.

¶15 Indeed, the juvenile court found that Child’s testimony at the criminal trial and in the forensic interview was “believable and credible.” According to the court, Child was “detailed in her description” of the abuse and she “was certain that [V.M.] was her abuser.” Child had “no motive to accuse” V.M. To the contrary, Child “found it difficult to comprehend that [V.M.] would knowingly touch her inappropriately” and even suggested that V.M. “might have been sleepwalking or not feeling well” when he abused her. The court also found that Child “displayed discomfort” in describing the abuse, did “not blurt out a rehearsed story,” and did not “appear to have been coached on what to say.”

¶16 The court further found that Forensic Interviewer “used proper protocol” in conducting the forensic interview of Child. In so finding, the court relied on the video of the forensic interview and Forensic Interviewer’s testimony given at the criminal trial. The court noted that Forensic Interviewer’s testimony was “credible.”

¶17 The juvenile court’s written order also included its conclusions of law. It began by explaining that DCFS had the burden to prove, by a preponderance of the evidence, that abuse or neglect occurred and that V.M. was substantially responsible for that abuse or neglect. See generally Utah Code Ann. § 62A-4a-1009(5)(a) (LexisNexis 2018). The court gave “little to no weight” to the fact that criminal charges against V.M. ultimately were dismissed and expunged, noting that the preponderance of the evidence standard applicable in the juvenile court proceeding is “lower than the beyond a reasonable doubt evidentiary standard used in the district court’s criminal trial.”

¶18 Similarly, the court gave “little weight” to the BYU investigation because it was “conducted for a different purpose” than the DCFS investigation and because the BYU investigator considered only information provided by V.M. The court noted that it had the “advantage” over the BYU investigator of “hearing directly from and meeting with [Child] through her testimony in court during the juvenile court trial.”

¶19 As a result of its findings of fact and conclusions of law, the juvenile court substantiated DCFS’s finding against V.M. for sexual abuse of a child. See id. § 62A-4a-101(39). The court accordingly dismissed V.M.’s petition. V.M. appeals.

ANALYSIS

¶20 On a petition informing the court “that the division has made a supported finding that a person committed a severe type of child abuse or neglect as defined in Section 62A-4a-1002,” the juvenile court shall, among other things, “make a finding of substantiated, unsubstantiated, or without merit.”[2] Utah Code Ann. § 78A-6-323(1)(a) (LexisNexis 2018); see also id. § 63G-4-402 (2016) (explaining that juvenile courts have jurisdiction over all state agency actions relating to “substantiated findings of abuse or neglect made by the Division of Child and Family Services”). During the proceeding on such a petition, the juvenile court reviews DCFS’s finding “by trial de novo,” id. § 63G-4-402(1)(a), and DCFS has “the burden of proving, by a preponderance of the evidence, that abuse, neglect, or dependency occurred and that the alleged perpetrator was substantially responsible for the abuse or neglect that occurred,” id. § 62A-4a-1009(5)(a) (2018).

¶21 The preponderance of the evidence standard generally “requires the proponent of a contested fact to demonstrate that its existence is more likely than not.” Harken Sw. Corp. v. Board of Oil, Gas & Mining, 920 P.2d 1176, 1182 (Utah 1996); see also Alvarado v. Tucker, 268 P.2d 986, 988 (Utah 1954) (defining preponderance of the evidence as the “greater weight of the evidence” in favor of the prevailing party). This standard of proof is lower than the beyond a reasonable doubt standard applicable to criminal defendants. See Egbert v. Nissan N. Am., Inc., 2007 UT 64, ¶ 12, 167 P.3d 1058; In re L.N., 2004 UT App 120, ¶ 8 n.2, 91 P.3d 836.

¶22 On appeal, V.M. contends that the juvenile court committed an error of law in (A) relying on the paper transcript of Child’s testimony from his criminal trial to determine the credibility of Child’s story and (B) relying on the transcript of Forensic Interviewer’s trial testimony to determine that Forensic Interviewer was credible. According to V.M., “it’s black letter law that credibility can only be determined from live testimony” and “[c]redibility simply cannot be determined from a cold transcript.” Because the juvenile court used both transcripts when deciding that Child’s allegations of abuse were substantiated, V.M. asserts that “a single error of law—the court’s mistaken premise that paper transcripts could be used for credibility—infected the [juvenile court’s] entire decision.”

A

¶23 With regard to Child—whose “testimony at trial and the [forensic] interview” the juvenile court found to be “believable and credible”—V.M. contends that because Child “did not tell her story” of the abuse to the juvenile court, the court improperly relied on the transcript of her testimony from V.M.’s criminal trial to find Child credible. V.M. argues that live testimony was essential to the court’s credibility assessment because the court could not assess Child’s credibility without observing her demeanor. We reject V.M.’s argument both because the juvenile court relied on more than just the transcript of Child’s trial testimony and because we do not agree that paper transcripts can never be used in evaluating a witness’s credibility.

¶24 First, to aid its assessment of Child’s credibility, the juvenile court was able to observe Child’s demeanor in a handful of ways. Specifically, the court listened to the audio recording of Child’s trial testimony and it relied on the transcript—at V.M.’s urging—to follow along. By listening to the audio recording, the court could hear Child’s tone of voice and how she responded to questioning, both of which could factor into its assessment of her credibility.[3] The court also watched Child’s forensic interview, and by doing so, it could observe Child’s outward demeanor as she described the abuse. Finally, Child testified before the juvenile court, and although she did not independently testify about the abuse during that testimony, the juvenile court could still take stock of Child’s general characteristics as a witness and compare them with her forensic interview and the transcript of her testimony during the criminal trial. Cf. In re M.A.V., 736 P.2d 1031, 1033 n.1 (Utah Ct. App. 1987) (noting that where a judge had “heard [a witness’s deposition] testimony ‘live’” and “had seen and heard from” the witness at two other hearings, the “court accordingly had more opportunity to take the measure of [the witness] and evaluate his credibility, demeanor, and attitude than would ordinarily occur where a deposition transcript had to be relied upon”).

¶25 Because the court had before it the video of Child’s forensic interview as well as the audio and transcript of Child’s testimony at the criminal trial, a recording of her conversation with her parents, and Child’s in-person testimony,[4] we reject the premise of V.M.’s argument: that the court relied solely on “a cold transcript” in crediting her allegations of abuse.

¶26      Second, we agree with V.M. that the “‘importance of live testimony to a credibility determination is well recognized and longstanding.’” (Quoting Oshodi v. Holder, 729 F.3d 883, 891 (9th Cir. 2013).) It is one of the reasons “credibility determinations are within the province of the district court judge,” who is best positioned to make factual findings based on oral testimony “due to his or her opportunity to view the witnesses firsthand, to assess their demeanor, and to consider their testimonies in the context of the proceedings as a whole.” Meyer v. Aposhian, 2016 UT App 47, ¶ 13, 369 P.3d 1284 (cleaned up); see also Utah R. Civ. P. 52(a)(4) (“Findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the credibility of the witnesses.”); Henshaw v. Henshaw, 2012 UT App 56, ¶¶ 11–12, 271 P.3d 837 (explaining that trial courts are “better equipped to make credibility determinations based on conflicting oral evidence than an appellate court that has access only to the cold record”).

¶27 Yet V.M. has not persuaded us that black letter law prohibits fact-finders in all circumstances from considering transcripts in making credibility determinations.[5] After all, “factors other than demeanor and inflection go into the decision whether or not to believe a witness.” Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985). “Documents or objective evidence may contradict the witness’ story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it.” Id.; see also Jackson v. United States, 353 F.2d 862, 866 (D.C. Cir. 1965) (“Credibility involves more than demeanor. It apprehends the overall evaluation of testimony in light of its rationality or internal consistency and the manner in which it hangs together with other evidence.” (cleaned up)); cf. Smith v. Freeman, 902 N.E.2d 1069, 1075 (Ill. 2009) (“It is a common practice for a judge, and even a jury, to make credibility determinations based on transcripts of testimony.”). And as we regularly instruct our juries, factors such as personal interest, bias, knowledge, memory, consistency, and reasonableness can aid a factfinder in the assessment of a witness’s credibility. See Model Utah Jury Instructions 2d CV121 (2018); see also id. CR207.

¶28 Thus, while we readily agree that viewing a witness firsthand is generally a superior way to evaluate his or her credibility, and while we do not question the value of live testimony, we cannot say that fact-finders are necessarily barred from using a cold transcript to evaluate a witness’s credibility in all circumstances. We therefore reject the premise of V.M.’s assertion of error on appeal—that paper transcripts could not be used to judge credibility as a matter of law. And particularly here, where V.M. invited the court to consider Child’s trial testimony,[6] we cannot conclude that the court committed legal error by considering the transcript along with the other evidence to determine that Child’s allegations were credible.

B

¶29 V.M. likewise assails the juvenile court’s reliance on the transcript of Forensic Interviewer’s testimony at his criminal trial. As compared to Child, the juvenile court had less opportunity to view Forensic Interviewer’s demeanor. But it had the transcript of her testimony from the criminal trial, it had the opportunity to view her demeanor by watching the forensic interview she conducted, and it could compare the interview with Forensic Interviewer’s testimony about it. Thus, although the court depended largely on the transcript to assess Forensic Interviewer’s credibility, its assessment was not strictly based on the transcript alone.

¶30 Still, even if the juvenile court had relied only on the transcript to judge Forensic Interviewer’s credibility, that is exactly what V.M. invited the court to do. An alleged error is invited when an appellant encourages the court to take the action he later challenges on appeal, and we will not reverse a court’s decision under such circumstances. See State v. McNeil, 2016 UT 3, ¶ 17, 365 P.3d 699; Pratt v. Nelson, 2007 UT 41, ¶ 17, 164 P.3d 366. When Forensic Interviewer was unable to testify, V.M. suggested that the court read her testimony, including cross-examination, from V.M.’s criminal trial. Though V.M. claims that he “never affirmatively invited the court to use paper transcripts for credibility determinations,” he told the court, without limitation, that “everything that [it] need[s] is in the transcript.” V.M. has not explained what he expected the court to do with Forensic Interviewer’s testimony if not assess her credibility on some level. By introducing the transcript and inviting the court to consider her testimony in evaluating the case, V.M. affirmatively and necessarily led the court to assess Forensic Interviewer’s credibility without personally observing her demeanor. We therefore cannot fault the juvenile court for its use of Forensic Interviewer’s transcript.

¶31      Further, even if V.M. did not invite this alleged error, he has not shown he was harmed by the court’s assessment of Forensic Interviewer’s credibility in the absence of in-person testimony. See Utah R. Civ. P. 61 (“The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”); see also Utah R. Juv. P. 2(c) (“In substantiation proceedings, the procedure set forth in U.C.A. 63G-4-402(2) shall apply.”); Utah Code Ann. § 63G-4-402(2)(b) (LexisNexis 2016) (explaining that substantiation proceedings are “governed by the Utah Rules of Civil Procedure”). V.M. states that Forensic Interviewer’s “credibility was never at issue in this case,” and he has not persuasively argued that had the juvenile court observed Forensic Interviewer’s demeanor and live testimony firsthand, its assessment of her credibility and the result of this proceeding would have been any different.

CONCLUSION

¶32 V.M. has not shown legal error in the juvenile court’s evaluation of the evidence in this case. Accordingly, we affirm its substantiation of DCFS’s finding against V.M. for sexual abuse of a child.

Utah Family Law, LC | divorceutah.com | 801-466-9277

———————————————————–

[1] Because the details of the abuse are not relevant to the issues on appeal, we do not repeat them here.

[2] “‘Substantiated’ or ‘substantiation’ means a judicial finding based on a preponderance of the evidence that abuse or neglect occurred.” Utah Code Ann. § 62A-4a-101(39) (LexisNexis 2018). “Unsubstantiated,” in contrast, “means a judicial finding that there is insufficient evidence to conclude that abuse or neglect occurred.” Id. § 62A-4a-101(44). And “without merit” includes a judicial finding “that the alleged abuse, neglect, or dependency did not occur, or that the alleged perpetrator was not responsible for the abuse, neglect, or dependency.” Id. § 62A-4a-101(46).

[3] V.M. also played for the court an audio recording of Child discussing the abuse with her parents.

[4] V.M. does not challenge the admission of any evidence, including the transcripts or the video. Nor does he complain that the court listened, at his urging, to the audio recording.

[5] 5. To the contrary, Utah law permits the use of transcripts at trial in some scenarios. For instance, the Utah Rules of Civil Procedure allow, under certain conditions, the use of depositions in court proceedings “for any purpose.” Utah R. Civ. P. 32(a)(2), (3); see also id. R. 32(e) (“Except as otherwise directed by the court, a party offering deposition testimony pursuant to this rule may offer it in stenographic or nonstenographic form, but, if in nonstenographic form, the party shall also provide the court with a transcript of the portions so offered.”). And the Utah Rules of Evidence allow, under certain conditions when a witness is unavailable, the admission of testimony that “was given as a witness at a trial, hearing, or lawful deposition.” Utah R. Evid. 804(a), (b)(1) (setting forth when former testimony is not excluded by the rule against hearsay). Neither one of these rules suggests that credibility determinations from such non-live testimony are impossible. Indeed, when V.M. advised the court that he would be seeking to admit transcripts of the criminal trial testimony of his ex-wife and Child’s aunt due to their unavailability, the court noted its ability to assess their credibility through means other than observing their demeanor.

[6] Given that a jury had acquitted V.M. based on the testimony that Child gave at the criminal trial, V.M. may have, for strategic reasons, preferred that the juvenile court consider Child’s trial testimony rather than see Child testify to the details of the abuse in person.

Tags: , , , , , ,

State v. Popp – 2019 UT App 173 – divorce and sexual abuse of children

2019 UT App 173
THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JUSTIN WILLIAM POPP,
Appellant.

Opinion
No. 20180224-CA
Filed October 31, 2019

First District Court, Brigham City Department
The Honorable Brandon J. Maynard
No. 171100138

Staci A. Visser and Ann M. Taliaferro, Attorneys for Appellant
Sean D. Reyes and Tera J. Peterson, Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES GREGORY K. ORME and JILL M. POHLMAN concurred.

HARRIS, Judge:

¶1              A jury convicted Justin William Popp of two counts of sodomy upon a child. Popp appeals his convictions, claiming that the trial court erred in several respects, and that his trial counsel provided ineffective assistance. In connection with his ineffective assistance claims, Popp filed a motion, pursuant to rule 23B of the Utah Rules of Appellate Procedure, asking us to remand the case to the trial court for supplementation of the record. For the reasons that follow, we reject Popp’s claims that the trial court erred, as well as all of his claims of ineffective assistance that are based on the appellate record. However, we agree with Popp that remand for supplementation of the record is necessary on one of his claims for ineffective assistance, and therefore partially grant his rule 23B motion and remand for the limited purpose of conducting further proceedings on that claim.

BACKGROUND[1]

¶2        In 2007, when F.H. was approximately three years old, her mother (Mother) began dating Popp. Shortly thereafter, Popp and Mother, along with F.H., moved in together. Popp and Mother had a child (B.J.) together in 2008, and eventually married in 2013. A little more than a year later, however, their relationship soured; they separated in January 2015 and finalized their divorce in July 2015.

¶3        The divorce proceedings were contentious, and the divorce court eventually entered an order awarding Popp and Mother joint physical custody of both children but, due to Mother’s work schedule, awarding Popp the majority of the parent-time and ordering Mother to pay Popp child support. Although Popp is not F.H.’s biological father, neither Mother nor Popp wanted to “split up the kids” at that point, so they worked out an arrangement where the children would continue to reside largely with Popp, and would visit Mother three weekends each month. For about fifteen months, everyone followed this arrangement without major incident. But in September 2016, F.H.—who was twelve years old by then—asked if she could live with Mother and her new husband full-time, and Popp agreed; B.J., however, continued to live with Popp.

¶4        About six months later, in March 2017, F.H. witnessed Mother and her husband having sex as she walked by their bedroom door on her way to the bathroom, and became “very, very upset.” In an attempt to console F.H., Mother asked her why she was so upset, and F.H. responded by telling Mother that Popp had sexually abused her. Specifically, F.H. recounted an incident, “when she was younger,” in which Popp told her that he had a “magic spoon with frosting on it and made her lick it off,” but the spoon was actually his penis. The next morning, Mother called the Division of Child and Family Services (DCFS), and scheduled an interview between F.H. and a DCFS investigator (Investigator).

¶5        The interview (CJC Interview) was conducted at the Children’s Justice Center by Investigator while a detective (Detective) watched from an adjacent observation room. Investigator asked F.H. what she had told Mother about Popp. F.H. explained that when she was “seven or eight,” while Mother “was at work,” Popp “put frosting on his thing and then he made [her] lick it off.” F.H. explained that Popp had “asked [F.H.] if [she] wanted a treat” and when F.H. said yes, Popp blindfolded her and made her “kneel down” and lick “frosting on his penis.” Then, after the frosting was gone, Popp “put the frosting back in the fridge,” “washed his hands,” and removed the blindfold. When Investigator asked F.H. why she believed she was licking Popp’s penis, F.H. said that, as she was kneeling down she began to lose her balance, and when she reached out to catch herself she “grabbed onto [Popp’s] leg and he didn’t have any pants on.”

¶6        F.H. then described another incident with Popp, which had also occurred when she was seven or eight. This time, Popp asked F.H. “to help him clean some bottles.” They proceeded into an unlit bathroom where Popp asked F.H. to “sit on the toilet” and “use [her] mouth to clean the bottles.” F.H. then “put [her] mouth on the bottle and . . . lick[ed] it clean.” F.H. explained that she “knew it wasn’t a bottle because it wasn’t hard. . . . It was like squishy and warm.” Although F.H. was unsure exactly how many times Popp had asked her to perform these acts, she knew that it had happened “more than once.”

¶7        After the CJC Interview, Detective attempted to interview Popp. Detective visited Popp’s house multiple times, left his business card on Popp’s front door, and spoke to Popp on the phone. During their phone conversation, Popp indicated that he would “be willing to come into the police department for an interview” the following day, but that he “needed to get with his attorney first and make sure that was okay.” Popp never showed up for the interview, however, and he later told Detective that “his attorney had advised him not to.”

¶8        After completing its investigation, the State charged Popp with two counts of sodomy on a child, both first-degree felonies. Prior to the preliminary hearing, the State moved to admit the CJC Interview pursuant to rule 15.5 of the Utah Rules of Criminal Procedure. Popp did not object to the State’s motion, and the CJC Interview was played at the hearing. After the hearing, during pretrial proceedings, the State again moved to admit the CJC Interview, this time for use at trial. In its motion, the State addressed how each of the rule 15.5(a) factors had been satisfied. Popp filed an objection to the State’s motion, but raised only one argument: that admission of the CJC Interview would violate Popp’s right to confront his accuser. However, prior to the start of trial, Popp withdrew this objection after learning that F.H. would be present at trial and available for cross-examination about the CJC Interview. As a result, the court declared Popp’s objection “moot” “as long as [F.H.] is present.”

¶9        In October 2017, the trial court ordered both parties to disclose their trial witnesses by December 5, 2017—one month before the scheduled trial date. Each party timely disclosed one expert witness: the State disclosed Investigator, and Popp disclosed an expert who would “testify about the propensity for child witnesses to recall or falsify testimony” and “the proper techniques that need to be used when interviewing child witnesses and whether they were used in this case.” Then, on December 29, 2017, Popp’s counsel notified the State that he intended to call three additional witnesses at trial: Popp’s mother (Grandmother); Popp’s close friend (Popp’s Friend) who had lived with Popp and the children for a long period of time; and Mother’s close friend (Mother’s Friend).[2] Trial counsel indicated that these witnesses could “testify to impeach the State’s witnesses with regards to how [F.H.] acted during the time frame that she has alleged to have been abused and after,” which behavior they observed “did not change . . . in any way shape or form during the time of the alleged abuse.” Popp’s counsel urged the court to grant a continuance to allow the State time to investigate the proposed witnesses, but the State opposed counsel’s request and instead asked the court to preclude the witnesses due to counsel’s untimely disclosure.

¶10     The day before trial, the court held a telephone conference to discuss the new witnesses and counsel’s untimely disclosure. During that conference, the State offered a compromise, proposing that the witnesses be allowed to testify but only as rebuttal witnesses “if the [S]tate addresses or elicit[s] information about” any behavioral changes on the part of F.H. Thus, absent any allegation of behavioral changes, the witnesses would not be allowed to testify. After some initial hesitation, trial counsel agreed to the compromise. At the end of the conference, counsel also notified the State that he would not be calling the disclosed expert to testify.

¶11 The morning of trial, before jury selection, the State informed the court that it would be asking Detective “if he was ever able to have an interview or meet with [Popp].” The State explained that the purpose of the question would be “to show that [Detective] was doing his job, he covered his bases and that he did everything he could to, you know, investigate the case,” and that the evidence would not be used “to suggest guilt or say [Popp’s] trying to hide something.” Moreover, the State assured the court that it would not mention Detective’s statements in closing. When asked by the court if he had any comment on the matter, Popp’s counsel responded, “No.”

¶12      During trial, the State played a video recording of the CJC Interview and called four witnesses: Mother, Investigator, F.H. and Detective. Mother testified as to how F.H. initially disclosed the abuse to her, and stated that she had never “told F.H. how to testify” regarding the abuse. Investigator testified about F.H.’s CJC Interview. She explained that the interview had been conducted according to national guidelines designed to allow the child interviewee to tell the story “in their own words” without the interviewer “putting any ideas, any suggestions into their head.” F.H. then testified that she had watched the CJC Interview and that it was accurate. F.H. also reiterated that Popp had made her lick his penis on two occasions: once when he asked her to “lick off the frosting,” and once when he asked her to use her mouth “to clean the bottles.” F.H. concluded by stating that no one had told her how to testify.

¶13 Finally, Detective testified that he had observed the CJC Interview from an adjacent room. He testified that he had undergone training and considered himself an “expert” in interviewing children because he had been working in the field for nine years and had watched and conducted “hundreds of interviews.” Popp’s counsel objected to this testimony based on relevancy, but withdrew the objection upon the State’s explanation that Detective’s “training and experience” would allow him to “comment on whether [Investigator] accurately and correctly followed the guidelines.” Detective testified that the guidelines are “highly reliable” and that, based on his observations of the CJC Interview, Investigator had complied with the guidelines “very well.”

¶14      Detective also testified about his experience investigating sex crimes. He noted that, in his experience, “[i]t’s very common” for a child victim to not remember every single instance of sexual abuse, and “[i]n most cases” a child will delay disclosing sexual abuse. Moreover, “it’s very rare” for there to be forensic evidence in sex abuse cases, and in cases with a delayed disclosure “[t]here’s [a] 90 plus percent chance that there’s not going to be any forensic or physical evidence to collect and preserve.” As a result, investigations for this type of crime “rely heavily on the interview process.”

¶15 Detective then explained what measures he had taken to investigate the case. Specifically, he testified that, after he observed the CJC Interview, he unsuccessfully attempted to interview Popp. Detective explained that, after visiting Popp’s house multiple times without success, he was finally able to reach Popp by phone and schedule an interview for the following day. However, after Popp failed to attend the scheduled interview, Detective again contacted Popp, and he recounted to the jury that Popp told him that Popp’s “attorney had advised him not to interview with [Detective].”

¶16      The State then rested its case. The defense called only one witness, Popp, who testified for approximately ten minutes. Popp testified about his relationship with Mother and the children. He explained that F.H. was not his biological child—a fact he believed F.H. was unaware of until she moved in with Mother after the divorce—but he had always treated her as his own. Popp also testified that his divorce from Mother turned bitter, which he attributed to Mother’s displeasure with being ordered to pay child support to Popp, and with Popp being awarded the majority of the parent-time with both children. Popp noted that, for fifteen months after the divorce, both children lived with him harmoniously, and that during this time Popp had a “great relationship” with F.H. Together they would participate in fun “family stuff” such as road trips, swimming, and attending work parties. Popp explained that he agreed to let F.H. move in with Mother after she approached him and explained that she was “getting ready to do her girl things and wanted to be with [Mother].” He testified that he never sexually abused F.H., and that her allegations were categorically untrue.

¶17 After the close of evidence, counsel and the court discussed the post-evidence jury instructions in a conference outside the presence of the jury. The court told counsel that it would read each proposed instruction out loud to them, and then ask for any objections, and that, absent an objection, the court would assume the instruction was acceptable to both sides. Neither side raised any substantive objection to any jury instruction or to the verdict form.

¶18 After receiving instructions from the court and hearing closing argument from counsel, the jury began its deliberation. While deliberating, the jury sent the following written question to the court: “Did [Detective] tell [Popp] why they wanted to interview him?” The court solicited input from both sides as to how to respond. Popp’s attorney suggested that the court respond by telling the jury “that they have the evidence, they have to make a decision based on what they heard.” The State and the court agreed, and together they determined that “the safest thing to do” would be to refer the jury to three specific instructions indicating that one duty of the jury “is to determine the facts of the case from the evidence received in the trial and not from any other source.” After completing its deliberation, the jury found Popp guilty on both counts. The court later sentenced Popp to a prison term of twenty-five years to life on each count, with the sentences to run concurrently.

ISSUES AND STANDARDS OF REVIEW

¶19 Popp now appeals, raising three issues on direct appeal. First, he argues that the jury instructions were improper. Second, he argues that the trial court erroneously admitted the CJC Interview into evidence. Third, he argues that the trial court erred when it allowed the State to introduce evidence of his refusal to submit to a pre-arrest interview with police. Popp acknowledges that he failed to preserve these issues for appellate review, but nevertheless asks us to review them under both the plain error and ineffective assistance of counsel exceptions to our preservation requirement. “Plain error is a question of law reviewed for correctness.” State v. Kozlov, 2012 UT App 114, ¶ 28, 276 P.3d 1207 (quotation simplified). Likewise, “when a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law.” Layton City v. Carr, 2014 UT App 227, ¶ 6, 336 P.3d 587 (quotation simplified).

¶20 In addition to the issues he raises on direct appeal, Popp has filed a motion, pursuant to rule 23B of the Utah Rules of Appellate Procedure, asking us to remand the case to the trial court in order to supplement the record with evidence to support his claims of ineffective assistance of counsel. “A remand under rule 23B is available only upon a nonspeculative allegation of facts, not fully appearing in the record on appeal, which, if true, could support a determination that counsel was ineffective.” State v. Jordan, 2018 UT App 187, ¶ 14, 438 P.3d 862 (quotation simplified).

ANALYSIS

I. Jury Instructions

¶21      Popp contends that the jury instructions and verdict form were “fatally flawed” because “the jury was never given a complete and accurate elements instruction.” Specifically, he complains that the instructions did not “advise[] the charged time frames for the offenses,” and that “neither the instructions nor the verdict form denote the specific act or conduct for which the jury . . . found guilt.” Popp acknowledges that these arguments were not preserved, but asserts that review is proper under both the plain error and ineffective assistance exceptions to our preservation requirement.[3]

A. Plain Error

¶22      Popp contends that the trial court plainly erred by “failing in its duty to provide correct instructions to the jury.” He maintains that the “necessity to completely and accurately instruct the jury as to the elements of a crime is fundamental and a requirement that should have been obvious to the trial court.” The State counters that plain error review of this claim is not available because Popp invited any error by affirmatively representing to the court that he had no objection to the instructions. We agree with the State.

¶23 “[W]hen an error is invited by an appellant, we will not review it even for plain error.” State v. Oliver, 2018 UT App 101, ¶ 27, 427 P.3d 495; see also State v. Moa, 2012 UT 28, ¶ 27, 282 P.3d 985 (“The doctrine of invited error . . . can preclude even plain error review.”). The “invited error doctrine arises from the principle that a party cannot take advantage of an error committed at trial when that party led the trial court into committing the error.” Pratt v. Nelson, 2007 UT 41, ¶ 17, 164 P.3d 366 (quotation simplified). “Under the doctrine of invited error, an error is invited when counsel encourages the trial court to make an erroneous ruling.” State v. McNeil, 2016 UT 3, ¶ 17, 365 P.3d 699. To invite an error, a party must do more than simply fail to object; the party must manifest some sort of affirmative representation to the trial court that the court is proceeding appropriately. See Pratt, 2007 UT 41, ¶¶ 18–22. At least in the context of jury instructions, see infra ¶ 44, our supreme court has held that an instruction is not subject even to plain error review if counsel, in response to a question from the court about whether counsel has any objection to the instruction, answers in the negative. See State v. Geukgeuzian, 2004 UT 16, ¶ 9, 86 P.3d 742 (“A jury instruction may not be assigned as error . . . if counsel, either by statement or act, affirmatively represented to the court that he or she had no objection to the jury instruction.” (quotation simplified)); see also State v. Butt, 2012 UT 34, ¶ 42, 284 P.3d 605 (same); State v. Hamilton, 2003 UT 22, ¶ 54, 70 P.3d 111 (same). We have of course followed suit. See, e.g., State v. Ramos, 2018 UT App 161, ¶ 23 n.9, 428 P.3d 334 (citing Geukgeuzian, and holding that any error was invited when counsel stated that he had no “issue with this instruction” (quotation simplified)); State v. Pullman, 2013 UT App 168, ¶ 23, 306 P.3d 827 (citing Geukgeuzian, and holding that any error was invited when counsel specifically approved the instruction in question).

¶24 Prior to instructing the jury, the trial court sought both sides’ input regarding the jury instructions. As to the introductory jury instructions given at the beginning of the trial, the court gave both attorneys a copy of the instructions and a chance to look them over, and then asked generally if anyone had any objection to any of them. Popp’s attorney stated plainly, on the record, that he did not. And with regard to the post-evidence jury instructions and the verdict form, the court went through each instruction and the verdict form on the record individually with counsel, pausing after each to ask if anyone had any objection. Popp’s counsel did not object to a single instruction or to the verdict form, and the few suggestions he made were promptly incorporated. Thus, the instructions to which Popp now objects are instructions that his counsel specifically approved on the record. Because Popp’s counsel made “an affirmative representation encouraging the court to proceed without further consideration of an issue,” Popp invited any error in the jury instructions and verdict form, and therefore the plain error exception is inapplicable here and we “need not consider [Popp’s] objection to that action on appeal.” See Moa, 2012 UT 28, ¶ 27; see also Geukgeuzian, 2004 UT 16, ¶ 10 (stating that a defendant invites error “where his counsel confirm[s] on the record that the defense had no objection to the instructions given by the trial court”).

B. Ineffective Assistance

¶25      Next, Popp argues that his trial counsel was ineffective for failing to ensure that the jury was properly instructed. “While invited error precludes a plain error claim, it does not preclude a claim for ineffective assistance of counsel.” State v. McNeil, 2013 UT App 134, ¶ 25, 302 P.3d 844, aff’d, 2016 UT 3, 365 P.3d 699. Accordingly, we evaluate Popp’s ineffective assistance claim under the two-part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Under that test, Popp must show “(1) that trial counsel’s performance was objectively deficient and (2) that such deficient performance was prejudicial.” Honie v. State, 2014 UT 19, ¶ 31, 342 P.3d 182. “Because failure to establish either prong of the test is fatal to an ineffective assistance of counsel claim, we are free to address [Popp’s] claims under either prong.” Id. As noted above, Popp identifies two potential infirmities with the jury instructions and verdict form: (1) that the instructions did not “advise[] the charged time frames for the offenses,” and (2) that “neither the instructions nor the verdict form denote the specific act or conduct for which the jury . . . found guilt.” Popp’s first claim fails under the first part of Strickland’s test, and his second claim fails under the second.

¶26 To satisfy the first part of the Strickland test, Popp “must show that counsel’s representation fell below an objective standard of reasonableness” when measured against “prevailing professional norms.” See Strickland, 466 U.S. at 687–88. Because of the “variety of circumstances” and “the range of legitimate decisions regarding how best to represent a criminal defendant,” our review of counsel’s actions is “highly deferential.” Id. at 688– 89. We judge the reasonableness of counsel’s actions “on the facts of the particular case, viewed as of the time of counsel’s conduct,” id. at 690, and we “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance,” id. at 689. One way to overcome this strong presumption is for a defendant to persuade the court that there was “no conceivable tactical basis” for counsel’s actions. State v. Clark, 2004 UT 25, ¶ 7, 89 P.3d 162 (quotation simplified). “Only when no reasonable attorney would pursue the chosen strategy will we determine that counsel has been constitutionally ineffective.” State v. Roberts, 2019 UT App 9, ¶ 29, 438 P.3d 885 (quotation simplified).

¶27      With regard to his argument that the jury instructions did not sufficiently identify the time frames within which the crimes allegedly occurred, Popp cannot satisfy the first part of the Strickland test, because the jury instructions correctly stated the law in this regard, and “[f]ailure to object to jury instructions that correctly state the law is not deficient performance.” State v. Lee, 2014 UT App 4, ¶ 22, 318 P.3d 1164. Under Utah law, a person commits sodomy upon a child if he intentionally, knowingly, or recklessly “engages in any sexual act upon or with a child who is under the age of 14, involving the genitals or anus of the actor or the child and the mouth or anus of either person, regardless of the sex of either participant.” Utah Code Ann. §§ 76-2-102, 76-5-403.1(1) (LexisNexis 2017). “[A]ny touching, even if accomplished through clothing, is sufficient.” Id. § 76-5-407(3) (Supp. 2019). The instructions Popp assails apprised the jury that the State bore the burden of proving, “beyond a reasonable doubt,” that (1) Popp “intentionally, knowingly, or recklessly committed a sexual act with F.H. involving any touching, however slight, of the genitals of one person and the mouth or anus of another, even if accomplished through the clothing;” and (2) “F.H. was under the age of 14 years old at the time of the conduct.” In addition, the jury was instructed that, for each of the two counts, Popp was charged with engaging in the acts “on or about January 2012 through December 2013.”

¶28 Popp’s argument that these instructions were flawed because they did not specify “when the conduct occurred” is unpersuasive. The relevant instructions tracked the language of the statute and therefore “accurately convey[ed] the law.” See State v. Maama, 2015 UT App 235, ¶ 29, 359 P.3d 1272. Specifically, the instructions included an age element, making clear that the State needed to prove that “F.H. was under the age of 14 years old at the time of the conduct.” Moreover, even though time is not an element of the offense of sodomy on a child and therefore need not be included in the instructions,[4] see Utah Code Ann. § 76-5-403.1(1), these instructions did include a time element, specifying the period of time (“on or about January 2012 through December 2013”) in which F.H. claimed that the conduct had occurred. Popp has not pointed to any requirement that the State prove that this type of crime occurred on a specific date at a specific time. Accordingly, these instructions were not infirm with regard to the time frame issue, and because any objection counsel might have raised in this regard would have been overruled, counsel did not perform deficiently by electing not to raise one. See State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546 (“Failure to raise futile objections does not constitute ineffective assistance of counsel.”).

¶29 Popp’s second argument—that “neither the instructions nor the verdict form denote the specific act or conduct for which the jury . . . found guilt”—fails because Popp cannot show prejudice, even if one assumes for the purposes of the argument that the instructions and verdict form were insufficient in this regard. To establish prejudice, Popp must “show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” See Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. The failure of the instructions and the verdict form to specify which count went with the “frosting” episode and which count went with the “bottle” episode did not matter in this case, where F.H. described only two incidents and Popp was charged with only two counts and convicted of both.

¶30      Because Popp can satisfy neither part of the Strickland test, his claim that his attorney performed deficiently by failing to object to jury instructions is without merit.

II. CJC Interview

¶31 Next, Popp contends that the CJC Interview should not have been shown to the jury. Popp acknowledges that the only objection he ever lodged to the admission of the CJC Interview—that its admission would infringe on his right to confront witnesses—was withdrawn after it became clear that F.H. would indeed be available for cross-examination, and that his appellate arguments on this point are therefore unpreserved. Nevertheless, Popp asks us to review this issue for plain error and ineffective assistance of counsel.

A. Plain Error

¶32      Popp contends that the trial court plainly erred by failing to evaluate the reliability of the CJC Interview as required by rule 15.5(a)(8) of the Utah Rules of Criminal Procedure. As with the previous claim, the State counters that plain error review of this claim is not available because Popp invited any error by withdrawing his objection at the pretrial hearing to admission of the CJC Interview.

¶33 But we do not think that Popp’s conduct with regard to this claim constitutes invited error. As noted above, to invite error, a party must do more than simply fail to object; rather, a party must make some affirmative representation to the court that it is proceeding correctly. Pratt v. Nelson, 2007 UT 41, ¶¶ 18–22, 164 P.3d 366; see also State v. Winfield, 2006 UT 4, ¶ 14, 128 P.3d 1171 (stating that, to invite error, counsel must “affirmatively represent[] to the trial court that he or she had no objection to the proceedings” (quotation simplified)). “Examples of affirmative representations include where counsel stipulates to the court’s instruction, states directly that there is no objection to a specific ruling of the court, or provides the court with erroneous authority upon which the court relies.” State v. Cooper, 2011 UT App 234, ¶ 10, 261 P.3d 653 (quotation simplified). In this vein, there is “a distinction between affirmative actions to initiate the error and merely acquiescing to the error.” See State v. McNeil, 2016 UT 3, ¶ 18, 365 P.3d 699 (quotation simplified); see also State v. Marquina, 2018 UT App 219, ¶ 23, 437 P.3d 628 (noting that our supreme court “has previously rejected attempts to broaden the scope of the invited error doctrine beyond this affirmative-representation model”), cert. granted, 440 P.3d 691 (Utah 2019). Where no affirmative representation is made, and counsel simply fails to object, any error “is not invited but merely unpreserved, and thus remains subject to plain error review.” McNeil, 2016 UT 3, ¶ 21.

¶34 Here, Popp made a single objection to admission of the CJC Interview based on the confrontation clause, then withdrew that objection after learning that F.H. would be present to testify at trial. Further, Popp never manifested affirmative consent to the admissibility of the CJC Interview under rule 15.5(a) of the Utah Rules of Criminal Procedure, or made any affirmative representation that it was reliable evidence. Popp simply withdrew his confrontation clause objection. In our view, where the admissibility of the CJC Interview under rule 15.5(a) was not the subject of Popp’s withdrawn objection, this situation is materially indistinguishable from a situation in which a litigant does not object at all, and it is well settled that a simple failure to object does not constitute invited error. See id. (stating that a simple failure to object means that the argument is unpreserved, not that an error has been invited). Accordingly, we reject the State’s argument that Popp invited any error in the admission of the CJC Interview under rule 15.5(a), and proceed to evaluate Popp’s unpreserved claim under a plain error standard.

¶35 To prevail on a claim that the trial court plainly erred in admitting the CJC Interview, Popp “must establish that (i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful.” See State v. Johnson, 2017 UT 76, ¶ 20, 416 P.3d 443 (quotation simplified). Popp asserts that the trial court erred in allowing the jury to view the CJC Interview without first assessing its reliability under rule 15.5. He asserts that this error was obvious because the “requirement for the trial court to evaluate reliability is plain in Rule 15.5 and relevant case law.” And he maintains that this failure was harmful here because the CJC Interview was both unreliable and an important part of the State’s case.

¶36 Because Popp must satisfy all three requirements to succeed on his claim, see id., if we conclude that the alleged error was not harmful we need not analyze whether it was obvious, see State v. Saenz, 2016 UT App 69, ¶ 12, 370 P.3d 1278 (“If there is no prejudice, we have no reason to reach the other elements of the plain error analysis.” (quotation simplified)). “An error is harmful if, absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, if our confidence in the verdict is undermined.” State v. Bond, 2015 UT 88, ¶ 49, 361 P.3d 104 (quotation simplified). Based on the record before us, we conclude that, even if the trial court erred by failing to strictly comply with rule 15.5, Popp has not demonstrated how this error was harmful.

¶37      First, there is not a reasonable likelihood that the outcome of the trial would have been different had the CJC Interview been excluded. F.H. was available to—and did—testify at trial and there is nothing in the record to suggest that, if the CJC Interview had been excluded, F.H. would have been unable to testify live as to the events in question. Indeed, during her trial testimony, F.H. affirmed that the events described in the video recording did in fact occur. Furthermore, after viewing the video, F.H. reiterated that Popp had asked her to lick his penis on two occasions—once under the guise of licking frosting off of a spoon and once under the guise of cleaning bottles.

¶38 Second, Popp has not carried his burden to prove that— even if a timely objection had been lodged and the trial court had conducted a rule 15.5 reliability review—the court would have excluded the video as unreliable. Popp contends that several factors undermine the reliability of the CJC Interview. Specifically, he asserts that Investigator failed to establish a baseline of truth versus lie; that she did not elicit a promise from F.H. to tell the truth; that she asked F.H. leading questions; and that she asked F.H. if anyone told F.H. what to say in the interview. We do not think these factors would have resulted in exclusion of the video, especially in light of the unrebutted testimony from both Investigator and Detective that the CJC Interview was conducted appropriately and according to national guidelines. In determining reliability in the rule 15.5 context, the court must “assess the interview in all of its circumstances.” State v. Roberts, 2019 UT App 9, ¶ 21, 438 P.3d 885. Indeed, we have recognized that there is not “one ‘right’ way to conduct an interview,” and that a court’s decision to assign more weight to a victim’s responses than to an alleged flaw in the interviewing technique “does not, without more, render its reliability determination erroneous.” Id. Popp has not persuaded us that, on this record, the perceived flaws would have rendered the CJC Interview unreliable.

¶39 In sum, Popp has not demonstrated that he was harmed by any error the trial court might have made by failing to conduct a rule 15.5 reliability determination prior to admitting the CJC Interview. Accordingly, we cannot conclude that the trial court plainly erred.

B. Ineffective Assistance

¶40 Next, Popp contends that trial counsel’s failure to challenge the admissibility of the CJC Interview on reliability grounds constituted ineffective assistance of counsel. As noted above, one of the two elements that Popp must establish, in order to demonstrate that his counsel performed ineffectively, is prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984) (stating that, to establish a claim of ineffective assistance, a defendant “must show that counsel’s performance was deficient” and that “the deficient performance prejudiced the defense”). However, our supreme court has “held that the prejudice test is the same whether under the claim of ineffective assistance or plain error.” McNeil, 2016 UT 3, ¶ 29; see also State v. Bair, 2012 UT App 106, ¶ 35, 275 P.3d 1050 (“The ‘harm’ factor in the plain error analysis is equivalent to the prejudice test applied in assessing claims of ineffective assistance of counsel.” (quotation simplified)). Consequently, “failure to meet the plain error requirement of prejudice means that [the] defendant likewise fails to meet the required showing under the ineffective assistance of counsel standard.” State v. Cheek, 2015 UT App 243, ¶ 32, 361 P.3d 679 (quotation simplified). Therefore, Popp’s ineffective assistance claim founders on the same shoals as his plain error claim does.[5]

III. Pre-Arrest Right to Remain Silent

¶41 Popp next argues that his constitutional right to remain silent was violated when Detective testified at trial about Popp’s refusal to submit to a pre-arrest interview. Popp contends that Detective’s testimony caused the jury to infer that Popp had “something to hide” from police and that Popp’s silence was “evidence of guilt.” Like Popp’s first two claims on appeal, this one is also unpreserved, and Popp again asks us to review this claim for plain error and ineffective assistance of counsel.

A. Plain Error

¶42 Popp contends that the trial court plainly erred when it allowed Detective to testify that Popp had declined the opportunity to speak with police prior to his arrest. Popp further contends that the court did not properly instruct the jury, when it posed a question during deliberation, that Popp’s pre-arrest silence cannot be used as evidence of guilt. Any error in the court’s response to the jury’s question was invited by Popp, and—even assuming that Popp did not invite any error in the admission of the evidence—the trial court did not plainly err in allowing Detective to testify about his interactions with Popp.

¶43 As explained above, a party invites error when it “independently ma[kes] a clear affirmative representation” to the court that the court is proceeding appropriately. State v. McNeil, 2016 UT 3, ¶ 18, 365 P.3d 699. With regard to the court’s response to the jury’s question, Popp invited any error. During its deliberation, the jury sent a question to the court about Detective’s testimony, asking, “Did the detective tell [Popp] why they wanted to interview him?” In chambers, counsel for both sides discussed how to respond to the question. Popp’s counsel suggested that the court respond by telling the jurors “that they have the evidence, they have to make a decision based on what they heard.” The State and the court agreed with that suggestion, and together the parties and the court determined that “the safest thing to do” would be to refer the jury to three specific jury instructions, which state that one duty of the jury “is to determine the facts of the case from the evidence received in the trial and not from any other source.” Here, counsel did more than simply respond to a question from the court about whether he had any objection to a plan formulated by someone else; in this instance, the court’s response to the jury’s question was framed by Popp’s counsel’s own suggestion. Popp therefore invited any error in that response. See id. (“[W]e have traditionally found invited error when the context reveals that counsel independently made a clear affirmative representation of the erroneous principle.”).

¶44 We are unable to conclude, however, that Popp invited any error in the trial court’s admission of Detective’s testimony. Although Popp’s counsel was directly queried about whether he had any “comment” on the State’s request to have Detective testify about his interactions with Popp, and responded in the negative, we are uncertain whether, under operative supreme court case law, such conduct amounts to invited error in this context. As noted above, supra ¶ 23, our supreme court has clearly held that a defendant who is specifically queried about a jury instruction and affirmatively responds that he has no objection is deemed to have invited any error in that jury instruction. See, e.g., Geukgeuzian, 2004 UT 16, ¶¶ 9–11; State v. Hamilton, 2003 UT 22, ¶ 54, 70 P.3d 111. Our supreme court has extended this concept to the jury selection context as well. State v. Winfield, 2006 UT 4, ¶¶ 16, 18, 128 P.3d 1171 (holding that a defendant invited any error in the jury selection process by affirmatively stating, in response to a question from the court, that he had no objection to the composition of the jury). But more recently, in State v. McNeil, our supreme court—without citation to Geukgeuzian or Winfield—appeared to directly repudiate the logic of those cases, at least in the context of admission of evidence. 2016 UT 3, ¶ 21 (rejecting the State’s argument “that if counsel does not offer a proper objection [to the admission of evidence] when asked to do so by the trial court, the error is invited,” and stating that it found that argument “unpersuasive”).[6] In light of McNeil, we find it most efficient here to simply assume, for purposes of our analysis, that Popp did not invite any error in the trial court’s admission of Detective’s testimony, and to evaluate the trial court’s decision for plain error.

¶45 And in this case, the trial court did not plainly err in allowing Detective to testify about his interactions with Popp, including testifying that Popp declined his invitation to sit for an interview. As noted above, in order to prevail on a claim that the trial court plainly erred in allowing Detective’s testimony, Popp “must establish that (i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful.” State v. Johnson, 2017 UT 76, ¶ 20, 416 P.3d 443 (quotation simplified). We do not discern any error in admission of Detective’s testimony, let alone an obvious one.

¶46 It is certainly true that “a person is protected from compelled self-incrimination at all times, not just upon arrest or during a custodial interrogation,” State v. Gallup, 2011 UT App 422, ¶ 15, 267 P.3d 289 (quotation simplified), and that evidence of a defendant’s pre-arrest silence may not be used at trial “to infer [that the] defendant exhibited a consciousness of guilt,” State v. Palmer, 860 P.2d 339, 349 (Utah Ct. App. 1993). But the “mere mention of a defendant’s exercise of his rights does not automatically establish a violation.” State v. Maas, 1999 UT App 325, ¶ 20, 991 P.2d 1108 (quotation simplified). “Rather, it is the prosecutor’s exploitation of a defendant’s exercise of his right to silence which is prohibited.” Id. (quotation simplified). To discern the difference between permissible uses and constitutional violations, “a court must look at the particular use to which the disclosure is put, and the context of the disclosure.” Id. ¶ 21. A violation occurs when the State frames the issue in a way that “raises the inference that silence equals guilt.” Id. ¶ 20.

¶47 Here, the State did not attempt to use Detective’s testimony to “cast the forbidden inference that [Popp’s] silence equaled guilt.” See id. ¶ 25. Instead, the State introduced the evidence to rebut Popp’s theory that Detective too readily accepted F.H.’s version of events, and that he did not adequately investigate the case. Testimony elicited from Detective was used to demonstrate that Detective had at least attempted to interview all relevant witnesses—including Popp—and had done “everything he could to . . . investigate the case.” The State carefully limited its use of this evidence to this purpose, and (as it promised) did not refer in closing argument to Detective’s testimony about Popp’s ultimate refusal to interview. Under these circumstances, we cannot say that the State introduced Detective’s testimony in order to raise a forbidden inference, and therefore the trial court did not commit error—let alone a plain one—by allowing Detective’s testimony.

B. Ineffective Assistance

¶48      Next, Popp contends that his trial counsel was ineffective for failing to object to Detective’s testimony or to request a curative instruction. As indicated above, to succeed on an ineffective assistance claim, a defendant must demonstrate that his counsel performed deficiently and that counsel’s deficient performance prejudiced him. Honie v. State, 2014 UT 19, ¶ 31, 342 P.3d 182. Failure to satisfy either part of the ineffective assistance test is fatal to a defendant’s claim. Archuleta v. Galetka, 2011 UT 73, ¶ 41, 267 P.3d 232. Because Popp has not shown that counsel performed deficiently by not objecting to Detective’s testimony or asking for a curative instruction, this claim fails.

¶49      Under the circumstances presented, we are not convinced that a timely objection to the admission of Detective’s testimony would have been granted. See State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546 (“Failure to raise futile objections does not constitute ineffective assistance of counsel.”). As noted immediately above, we discern no error in the trial court’s admission of Detective’s testimony about Popp’s refusal to interview, and we are therefore unpersuaded that the trial court would have granted an objection even if counsel had raised one.

¶50 Likewise, Popp has not carried his burden of demonstrating that trial counsel was ineffective for failing to request a curative instruction in response to the jury’s question. Utah courts have long recognized that counsel’s decision not to request an available curative instruction may be “construed as sound trial strategy.” State v. Harter, 2007 UT App 5, ¶ 16, 155 P.3d 116. Indeed, a curative instruction may actually serve to draw the jury’s attention toward the subject matter of the instruction and further emphasize the issue the instruction is attempting to cure. State v. Garrido, 2013 UT App 245, ¶ 26, 314 P.3d 1014 (“Choosing to forgo a limiting instruction can be a reasonable decision to avoid drawing attention to unfavorable testimony.”). Therefore, “any advantage [Popp] may have gained by requesting a curative . . . instruction may have been offset by the attention drawn to” Popp’s silence. See Harter, 2007 UT App 5, ¶ 16.

¶51      Accordingly, Popp has not demonstrated that his counsel acted deficiently by failing to object to Detective’s testimony or to request a curative instruction. Consequently, we reject Popp’s ineffective assistance of counsel claim with respect to this issue.

IV. Motion for Rule 23B Remand

¶52      In addition to the claims he raises based on the appellate record, Popp filed a motion under rule 23B of the Utah Rules of Appellate Procedure, seeking an order remanding the case to the trial court for further proceedings regarding three of his ineffective assistance claims. Our supreme court has noted that, where “the record is silent regarding counsel’s conduct,” a defendant will not be able to meet his burden of “pointing to specific instances in the record demonstrating both counsel’s deficient performance and the prejudice it caused.” State v. Griffin, 2015 UT 18, ¶ 16, 441 P.3d 1166. Rule 23B was “specifically designed” to remedy this problem. Id. ¶ 17 (quotation simplified). Under rule 23B, a defendant “may move the court to remand the case to the trial court for entry of findings of fact, necessary for the appellate court’s determination of a claim of ineffective assistance of counsel.” Utah R. App. P. 23B(a).

¶53 A movant must make a four-part showing in order to obtain a remand order under rule 23B. First, the rule 23B motion “must be supported by affidavits setting forth facts that are not contained in the existing record.” State v. Norton, 2015 UT App 263, ¶ 6, 361 P.3d 719 (quotation simplified). Second, the affidavits must contain “allegations of fact that are not speculative.” Id. (quotation simplified). Third, the allegations contained in the affidavits “must show deficient performance by counsel.” Id. (quotation simplified). And finally, the affidavits “must also allege facts that show the claimed prejudice suffered by the appellant as a result of the claimed deficient performance.” Id. (quotation simplified). Importantly, the third and fourth elements require the defendant to “present the court with the evidence he intends to present on remand and explain how that evidence supports both prongs of the ineffective assistance of counsel test.” State v. Gallegos, 2018 UT App 192, ¶ 23, 437 P.3d 388 (quotation simplified), cert. granted, 437 P.3d 1248 (Utah 2019). “[I]f the defendant could not meet the test for ineffective assistance of counsel, even if his new factual allegations were true, there is no reason to remand the case, and we should deny the motion.” Griffin, 2015 UT 18, ¶ 20.

¶54 Popp asserts that remand under rule 23B is necessary to supplement the record to support three of his claims that his trial counsel rendered ineffective assistance. First, Popp contends that trial counsel failed to investigate and call three potential defense witnesses. Second, Popp asserts that trial counsel failed to consult with and call an expert to challenge the reliability of the CJC Interview. Third, Popp faults trial counsel for failing to object to and rebut testimony from Detective. We examine each of these claims in turn.

A. Failure to Investigate and Call Defense Witnesses

¶55 First, Popp seeks remand related to a claim—that he concedes he cannot fully support on the current record—that his attorney was ineffective for failing to investigate and call three potential defense witnesses. He contends that he told counsel about these witnesses prior to the witness disclosure deadline, but that counsel failed to act on the information received. Popp contends that counsel’s conduct was “objectively unreasonable and left Popp without any evidence supporting his version of events.” We conclude that Popp has satisfied the requirements of rule 23B on this claim.

¶56      To support his motion, Popp submitted his own affidavit, as well as affidavits from Grandmother, Popp’s Friend, and Mother’s Friend. In his own affidavit, Popp avers that he gave counsel the names and contact information for a number of potential trial witnesses, including each of the other three rule 23B affiants, “in late November” 2017, a few weeks before the witness disclosure deadline. All three of the other affiants swear that Popp’s attorney did not contact them. Popp avers that he and Grandmother met with counsel on December 28, 2017, and again gave him the names of potential witnesses, an account corroborated by Grandmother, yet counsel still did not contact any witnesses. As noted above, due to counsel’s late disclosure of his intent to call Grandmother, Popp’s Friend, and Mother’s Friend, counsel acceded to a “compromise” in which he agreed not to call these witnesses unless the State opened the door by discussing changes in F.H.’s behavior. But Popp now argues, and the witnesses’ affidavits support, that these witnesses could have testified to a number of other issues, including: (1) that Popp had a reputation for honesty while Mother did not; (2) that Popp was a good father; (3) that Mother allowed F.H. to watch sexually explicit television shows; (4) that F.H. did not know Popp was not her biological father until she moved in with Mother after the divorce; (5) that Mother was highly motivated to gain full custody of the children and terminate child support payments to Popp; and (6) that other adults had often been present in the house with F.H. and Popp during the times of day in which the abuse was alleged to have occurred. All of this evidence would have been supportive of Popp’s defenses, including his main theory at trial: that Mother had coached F.H. to testify that Popp had abused her, in order for Mother to gain an advantage in the contentious custody proceedings.

¶57 Under these circumstances, Popp has met all four prerequisites for the granting of a rule 23B motion. He has submitted affidavits setting forth non-speculative facts not currently contained in the existing record, and those facts, if proven true, could potentially support both parts of an ineffective assistance of counsel claim. We already know from the record that trial counsel failed to meet the court’s witness disclosure deadline, and was thereby hamstrung in his ability to call later-disclosed witnesses. From the affidavits Popp has submitted in connection with his rule 23B motion, we have learned who these witnesses are, what they would have testified about, that Popp disclosed this information to trial counsel in advance of trial and the witness disclosure deadline, and that their testimony might have been useful to Popp. Based on the information before us, we conclude that these facts, if true, “could support a determination that counsel was ineffective.” See Utah R. App. P. 23B(a).

¶58 The State argues, however, that the testimony Popp claims should have been presented would not have been enough to make a difference, and that Popp therefore cannot demonstrate the potential for prejudice. Although we acknowledge that this is a close question, we resolve it here in favor of Popp. As noted above, prejudice in this context refers to a “reasonable probability” that the result of the trial would have been different. See Strickland v. Washington, 466 U.S. 668, 694 (1984). This standard is less exacting than “the more demanding ‘more likely than not’ standard.” Tillman v. State, 2005 UT 56, ¶ 29 n.7, 128 P.3d 1123 (quoting Strickler v. Greene, 527 U.S. 263, 297–300 (1999) (Souter, J., concurring and dissenting)), superseded in part by statute on other grounds as stated in Gordon v. State, 2016 UT App 190, 382 P.3d 1063. The reasonable probability standard is “more akin to a significant possibility of a different result.” Tillman, 2005 UT 56, ¶ 29 n.7 (quotation simplified). There is a “reasonable probability of a different result” when a court’s “confidence in the outcome of the trial” is undermined. Id. ¶ 29 (quotation simplified); see also Strickland, 466 U.S. at 694 (“A reasonable probability is a probability sufficient to undermine confidence in the outcome.”).

¶59      In this case, neither side presented any physical evidence; indeed, the entire case hinged on the credibility of the witnesses, especially F.H. While Popp’s counsel did cross-examine all of the State’s witnesses, including F.H., Popp called only himself as a witness, and he testified for about ten minutes. While Popp denied, under oath, any abuse of F.H., no other defense witness was called to corroborate any portion of Popp’s account, or to bolster his theory that Mother may have coached F.H. to make the accusations. All three of the rule 23B affiants (Grandmother, Popp’s Friend, and Mother’s Friend) could have lent support in that regard, especially Mother’s Friend, who states in her affidavit, among other things, that she is of the view that Mother “is not trustworthy” and that F.H.’s “allegations were orchestrated by [Mother] as a way to gain custody” and to avoid paying Popp child support. At a minimum, calling these witnesses would have made it less likely that jurors would draw the conclusion—as they may have after witnessing a ten-minute defense in a first-degree felony case—that Popp did not have much of a defense to offer. In the end, if the facts are borne out to be as the rule 23B affidavits make them appear, our confidence in the outcome of the trial could be sufficiently undermined such that the second element of the Strickland test may be met.

¶60      Therefore, we grant Popp’s rule 23B motion on this claim.

B. Failure to Challenge Reliability of CJC Interview

¶61      Popp next claims that his trial counsel was ineffective for failing to consult and call an expert to challenge the reliability of the CJC Interview. We have already addressed and rejected this claim, as it relates to evidence currently in the record. See supra Part II.B. Popp asserts that he might be able to make out a valid claim for ineffective assistance on this point, if he could obtain a remand for further proceedings. To support this claim, Popp submits multiple affidavits, including one from a potential expert witness. On this point, however, the affidavits Popp submits do not support a rule 23B remand, because even if the new factual allegations are true, Popp has not shown prejudice.

¶62 In our view, this claim is doomed by the details of the potential expert’s affidavit. Specifically, the expert avers that Popp’s trial counsel contacted him, prior to trial, and asked him to review the audio recording of the CJC Interview and to “identify any potential problems contained therein.” After listening to the recording, the expert concluded that there was nothing “exceptionally unusual or untoward” in the interview, and that he “did not identify anything significantly problematic in the interview in reference to techniques that would be inconsistent with sound interview protocol.” The expert avers that he shared those views with trial counsel in a telephone conversation prior to trial, and that counsel responded by stating, “[T]hat’s kind of what I thought.”

¶63 Under these circumstances, the affidavits submitted by Popp in support of his request for rule 23B remand on this claim are insufficient. Even if counsel had called the potential expert to testify about the reliability of the CJC Interview, the materials Popp has submitted give us no reason to believe that the court would have been any more likely to exclude the CJC Interview, or that there would have been a reasonable probability that the result of Popp’s trial would have been different. Accordingly, we see no purpose for a rule 23B remand on this claim.

C. Failure to Object to Detective’s Testimony

¶64 Finally, Popp claims that his trial counsel was ineffective for failing to object to and rebut Detective’s testimony—which Popp characterizes as “unnoticed expert testimony”—about the propriety of the CJC Interview. He asserts that, had counsel objected, Popp may have been able to win exclusion of Detective’s testimony regarding the CJC Interview. Moreover, he asserts that, even if he could not have obtained an order excluding Detective’s testimony, counsel should have at least called an expert to rebut it.

¶65 We conclude that, on the facts presented, Popp has not demonstrated entitlement to a rule 23B remand on this claim. After consulting with the expert witness discussed in the previous section, counsel may have reasonably concluded both (a) that objecting to Detective’s testimony would be unnecessary and futile, and (b) that calling a rebuttal expert would simply result in bolstering Detective’s testimony that the CJC Interview was conducted appropriately. Indeed, as discussed above, Popp’s own potential expert listened to a recording of the CJC Interview and concluded that there did not exist grounds to challenge its admission on the basis that it had been conducted inappropriately. Consequently, even if the information in Popp’s rule 23B affidavits is true, Popp will not be able to demonstrate that his attorney performed deficiently in this regard, and therefore Popp’s request is insufficient to justify a remand. See Griffin, 2015 UT 18, ¶ 19.

CONCLUSION

¶66      We reject all of Popp’s claims that the trial court erred, as well as all of Popp’s claims for ineffective assistance that are based on the appellate record. In addition, we reject two of Popp’s requests for remand under rule 23B, and deny his rule 23B motion with respect to those claims. However, we grant Popp’s rule 23B motion regarding his claim that trial counsel was ineffective for failing to investigate or call three potential defense witnesses. Therefore, we remand the case to the trial court to supplement the record as necessary to resolve this claim, including exploration of the following issues:

  • Whether Popp made counsel aware of potential trial witnesses prior to the witness disclosure deadline;
  • If so, whether counsel contacted those witnesses, or otherwise investigated their potential testimony, and, if not, whether counsel had valid strategic reasons for declining to do so;

(c) What testimony those witnesses would have given, whether that testimony might have been helpful to Popp’s defense, and whether that testimony might have been significantly undermined through cross-examination.

[1] “When reviewing a jury verdict, we examine the evidence and all reasonable inferences drawn therefrom in a light most favorable to the verdict, and we recite the facts accordingly.” State v. Kruger, 2000 UT 60, ¶ 2, 6 P.3d 1116. “We present conflicting evidence only when necessary to understand issues raised on appeal.” Id.

[2] In his rule 23B motion, Popp contends that he told counsel about these potential witnesses in late November, before the court-ordered disclosure deadline. Then, according to Popp, he again provided counsel the names and phone numbers of the potential witnesses in a subsequent meeting on December 28, 2017. The next day, on December 29, counsel notified the State that he intended to call these witnesses at trial; Popp contends that counsel did so without having spoken to the witnesses.

[3] Popp also requests that we review this claim under the doctrine of manifest injustice. Because Popp draws no distinctions between “manifest injustice” and “plain error,” and because “in most circumstances the term ‘manifest injustice’ is synonymous with the ‘plain error’ standard,” we simply address Popp’s claims for plain error. See State v. Maestas, 2012 UT 46, ¶ 37, 299 P.3d 892 (quotation simplified).

[4] 4. Popp acknowledges that “time is not always a statutory element of an offense,” but asserts that time must be an element

of the offenses with which he was charged, because the age of the victim may alter the level of offense, see Utah Code Ann. § 76-1-501(2)(a) (LexisNexis 2018) (stating that an “element of the offense” includes “the conduct, attendant circumstances, or results of conduct proscribed, prohibited, or forbidden in the definition of the offense”); see also State v. Fulton, 742 P.2d 1208, 1213 (Utah 1987).

[5] On this point, we do not think that Popp can demonstrate deficient performance either, because he cannot “rebut the strong presumption that under the circumstances the challenged action might be considered sound trial strategy.” See State v. Wright, 2013 UT App 142, ¶ 13, 304 P.3d 887 (quotation simplified). We perceive possible tactical reasons why counsel may have wanted the CJC Interview to be admitted. First, counsel might have believed that F.H.’s live testimony would have been even more powerful than recorded testimony. Second, the CJC Interview contained some discussion of items helpful to the defense, including Popp’s theory that Mother had coached F.H. into making the abuse allegations as a way to gain custody and terminate child support payments to Popp.

[6] The court did not explain why it found that argument “unpersuasive” in McNeil but entirely persuasive in Geukgeuzian, Hamilton, and Winfield, and did not attempt to distinguish those cases in McNeil. As we read all of the cases together, under current law a litigant who fails to object after being directly asked about a jury instruction or about the composition of the jury will be deemed to have invited any error, while a litigant who fails to object after being directly asked about the admissibility of evidence will not be. However, such distinctions are not outcome-determinative in this case, because Popp’s claim regarding the admission of Detective’s testimony fails even under plain error review.

———————————————————–

Utah Family Law, LC | divorceutah.com | 801-466-9277

Click to listen highlighted text!