Tag: counsel

In re Adoption of P.P. – 2024 UT App 62 – ineffective assistance of counsel – adoption

In re Adoption of P.P. – 2024 UT App 62



B.P., Appellant, v. B.M. AND J.M., Appellees.

Opinion No. 20230486-CA Filed May 2, 2024 Third District Court, Salt Lake Department

The Honorable Kara PettitNo. 222900323

Sheleigh Harding, Attorney for Appellant Sierra D. Hansen, Attorney for Appellees

JUDGE AMY J. OLIVER authored this Opinion, in which JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.

OLIVER, Judge:

¶1 B.P. (Father) appeals from a district court order terminating his parental rights to his daughter, Phoebe.[1] Father’s only claim on appeal is that his counsel (Counsel) provided ineffective assistance for failing to call certain witnesses to testify at trial. But because Father’s claim hinges on his request for a remand to develop the record, and because we deny the request, we affirm the district court’s order.


¶2        In 2014, two weeks after Phoebe was born, Father was arrested on a parole violation, and he remained incarcerated on various charges for “a big portion of her life.” Phoebe lived with her mother (Mother) until the summer of 2021, when Mother became seriously ill and was hospitalized with rapidly declining health. Two weeks before Mother’s eventual death, Father was released from prison.

¶3        Phoebe spent the day before Mother’s death with Father. But, on Mother’s wishes, B.M., Phoebe’s maternal grandmother (Grandmother), and Grandmother’s husband, J.M. (Step-Grandfather; collectively, Grandparents), retrieved her from Father.[2] The next day was an “extremely traumatic day,” as it became clear that Mother was dying. Father appeared at the hospital demanding to take Phoebe with him. His behavior was “intense,” “erratic,” and “scary” enough that security removed him from the hospital. That night, at a vigil in Mother’s honor, Grandmother refused to let Phoebe leave with Father, so he called the police to assist him. But the police declined to physically place Phoebe with Father.

¶4        Phoebe then went to live with Grandparents. Grandmother initiated guardianship proceedings and Father filed an objection. The case was referred to mediation, which was unsuccessful because Father failed to appear. The court found that Father’s failure to appear “amount[ed] to a default” and granted Grandmother permanent guardianship. The court noted Father’s parental rights had not been severed and recommended he seek services and parent-time, but because he was eventually incarcerated again, Father did not do so.

¶5        In August 2022, Grandparents petitioned to adopt Phoebe. The district court held a one-day bench trial. At trial, Step-Grandfather testified that Phoebe was “scared” of Father because of his behavior and had expressed fear that Father would try to take her. Step-Grandfather testified that Phoebe felt abandoned by Father, as he had never written her letters, called her on her birthday, or sent her gifts. Step-Grandfather stated he had a “very minimal” relationship with Father and believed “it wouldn’t be a safe environment” for Phoebe to live with him. Mother’s friend (Friend), who had been at the hospital on the day of Mother’s death, testified about Father’s “scary” and “intense” behavior in trying to take Phoebe with him against Mother’s wishes. Grandmother testified that Father called Phoebe only one time since Mother’s death and had not followed the court’s guardianship order to establish a relationship with her. Grandmother stated that she could not work well with Father because she did not have a relationship with him.

¶6        Although Father’s initial disclosures included a list of ten potential witnesses, Counsel called only one witness at trial— Father himself. Father testified that he had regular communication with Mother while Mother was still alive and he would talk to Phoebe whenever he could, but he admitted that these phone calls mostly consisted of his talking to Mother. He admitted he had been incarcerated for a “big portion” of Phoebe’s life and had not attended the guardianship proceedings, but he noted that Phoebe had spent “four or five days” with him before Mother died. And he testified that he had tried to contact Phoebe after Mother’s death, but Grandparents had given him a “bogus number” and he could not “get ahold of them.” He stated that Grandparents had a “vendetta” against him.

¶7        The court then issued its findings of fact and conclusions of law. First, the court found clear and convincing evidence of statutory grounds for termination, concluding Father had both abandoned Phoebe and made only token efforts to support or communicate with her. With respect to abandonment, the court found prima facie evidence that Father had no communication with Phoebe since shortly after Mother’s death, he had defaulted in the guardianship proceeding, and Grandparents were not aware of his location until they saw a news report that he had been arrested. And with respect to token efforts, the court found Father had, in fact, made no effort to support Phoebe “financially or emotionally”; he was incarcerated for “substantial periods” of her life and had made no attempt to communicate with her while incarcerated; and though he had “some communication with [Phoebe] while out of jail, these time periods were short.” The court also found that Father had “never provided a home” for Phoebe and had never lived with her.

¶8        The court then turned to what it called the “crux of this case”—whether termination was in Phoebe’s best interest. The court found the presumption of preserving “natural familial bonds” had been rebutted in this case because Father had never lived with Phoebe, did not fulfill “the normal parental obligations/responsibilities,” and “never had a positive, nurturing parent-child relationship” with her. The court also considered whether a permanent guardianship could equally protect and benefit Phoebe, but it found that Father and Grandparents “have a terrible relationship” and “will never be able to work together to ensure [Phoebe] has a healthy relationship” with both parties. And though Phoebe had some interaction with Father’s extended family, the court found this was “not substantial enough to outweigh the harms” to Phoebe resulting from a lack of permanence in her guardianship arrangement. The court also found that Father was unable to act in Phoebe’s best interest, demonstrated by his calling the police to remove Phoebe from Mother’s vigil, which was “highly traumatic” for Phoebe. The court found it likely that, should the guardianship remain intact, Phoebe would have to endure the fear of recurring traumatic events. Thus, the court found it strictly necessary from Phoebe’s point of view to terminate Father’s parental rights.

¶9        Father immediately filed a notice of appeal from the termination order. In the meantime, the court granted Grandparents’ petition for adoption. Father then filed a notice of appeal from the adoption decree. On the parties’ stipulation, this court then consolidated the two appeals. After his appeals were consolidated, Father filed a motion requesting a stay of briefing, alleging Counsel provided ineffective assistance and requesting a remand to the district court to develop the record in support of his claim. Father noted that because this was a civil case, remand under rule 23B of the Utah Rules of Appellate Procedure was not available but urged that remand could nonetheless be granted under one of several other “procedural pathways.”

¶10 In support of his request for remand, Father attached declarations from six potential witnesses—his mother, sister, grandmother, uncle, aunt, and wife. Each declaration offered a variation on the same basic facts: Father’s extended family members were “heavily involved” with Phoebe’s and Mother’s lives, Father and Phoebe had “weekly” phone contact, Father and Phoebe “lived” together with Father’s mother and sister before Mother’s death, Father was a “regular dad” and had established a “loving and affectionate . . . father/daughter relationship” with Phoebe, and Grandparents were “difficult to contact” or had “completely blocked” Father’s extended family from contacting Phoebe after Mother’s death. Father argued this testimony would have changed the outcome of his trial—rendering Counsel’s failure to call the witnesses ineffective assistance. We denied the stay and deferred ruling on Father’s request for remand “pending briefing and plenary consideration of the appeal.”


¶11      Father’s only argument on appeal is that Counsel provided ineffective assistance by failing to call several witnesses during the termination proceeding. “An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law.” In re C.M.R., 2020 UT App 114, ¶ 11, 473 P.3d 184 (cleaned up).


¶12 Father argues Counsel provided ineffective assistance in failing to call several witnesses at the termination trial. To prevail on his claim, Father “must demonstrate both (1) that [Counsel’s] performance was deficient and (2) that [he] suffered prejudice as a result.” In re D.R., 2022 UT App 124, ¶ 16, 521 P.3d 545 (cleaned up), cert. denied, 525 P.3d 1264 (Utah 2023). But because the record does not support his claim, Father requests a remand for the district court to hold an evidentiary hearing regarding Counsel’s alleged ineffective assistance.

¶13      Father recognizes that remand here is not possible under rule 23B of the Utah Rules of Appellate Procedure. See Utah R. App. P. 23B(a) (“A party to an appeal in a criminal case 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.” (emphasis added)). But he urges we may nonetheless grant a remand patterned after two of our prior decisions, In re S.H., 2007 UT App 8, 155 P.3d 109, and In re C.M.R., 2020 UT App 114, 473 P.3d 184. In both cases we determined that—in the context of child welfare proceedings in juvenile court—parents who provided extra-record evidence alleging ineffective assistance on appeal were entitled to a remand similar to that provided by rule 23B to develop the record in support of their claims. See In re C.M.R., 2020 UT App 114, ¶¶ 31–32; In re S.H., 2007 UT App 8, ¶¶ 14–16. As this type of remand is “analogous to remand under rule 23B of the Utah Rules of Appellate Procedure, it requires a nonspeculative allegation of facts, not fully appearing in the record on appeal, which, if true, could support a determination that counsel was ineffective.” In re D.R., 2022 UT App 124, ¶ 18 (cleaned up).

¶14      This procedure has not yet been applied in the context of private termination petitions filed in district court.[3] But we decline Father’s invitation to do so here because even were we to grant him such a remand, he would be unable to show that Counsel was ineffective. In order to terminate Father’s parental rights, the district court was required to find that (1) one or more of the statutory grounds for termination were present and (2) termination was in Phoebe’s best interest. See In re adoption of J.E., 2024 UT App 34, ¶ 10. The court made detailed findings on each step and, even accepting the facts asserted in the carefully worded witness declarations as true, they do not undermine these findings.

¶15      Several of the declarations asserted that Father had weekly phone contact with Phoebe before Mother’s death. But this does not contradict the court’s finding that Father’s last contact with Phoebe was shortly after Mother’s death and nearly two years prior to the trial. Several of the declarations stated that Phoebe had “lived” with Father before Mother’s death. But Father himself testified he had only spent “four or five days” with Phoebe during that time. And, regardless, this testimony would not have altered the court’s finding that Father had “never provided a home for [Phoebe], much less a permanent home, and has never lived with” her.

¶16 All six witness declarations suggested that Father was a “regular dad,” had a “loving and affectionate . . . father/daughter relationship” with Phoebe, and was attentive to her needs. But the court determined that there was strong evidence that Father “lacks the ability to act in [Phoebe’s] best interest” because, after never having custody of her, “he called the police to physically remove her from” the vigil on the day of Mother’s death, which was “highly traumatic” for her. Further, the court found that Father knowingly allowed guardianship to be granted to Grandparents and had never followed the court’s orders to develop a relationship with Phoebe pursuant to the guardianship order. Testimony about positive interactions between Phoebe and Father—observable for at most five days—does not dispel the court’s finding that Father had “never had a positive, nurturing parent-child relationship” with her.

¶17      Several of the potential witnesses stated that Grandparents had “abducted” Phoebe from Father. And several alleged that Grandparents had either been difficult to reach or had “completely blocked” them from contacting Phoebe. But the court found that Phoebe had interacted with Father’s extended family under the guardianship order, though this contact was “not substantial enough to outweigh the harms to” Phoebe from a lack of permanency. And, if anything, these apparent conflicts between Grandparents and Father’s family only seem to add support to the court’s finding that Grandparents and Father had a “terrible relationship” and would be unable to work together to facilitate a healthy relationship between all parties.

¶18 We fail to see how this testimony from Father’s family members would have changed the court’s conclusion that statutory grounds for termination existed and that termination was in Phoebe’s best interest. Thus, even were we to grant a remand to Father, he would be unable to show that Counsel’s failure to call these witnesses prejudiced him. And without a showing of prejudice, his ineffective assistance claim would fail. See In re D.R., 2022 UT App 124, ¶ 16 (noting a parent must show “both (1) that counsel’s performance was deficient and (2) that [the parent] suffered prejudice as a result” (emphasis added) (cleaned up)). Accordingly, we deny Father’s request for remand. Cf. State v. Griffin, 2015 UT 18, ¶ 20, 441 P.3d 1166 (stating that, in the rule 23B context, “[i]t stands to reason that if 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”).


¶19 Father’s appeal presented one issue: whether Counsel provided ineffective assistance. Because this argument is contingent on Father’s request for a remand, and because we deny this request, we affirm the district court’s order in all respects.

Utah Family Law, LC | | 801-466-9277

[1] We employ a pseudonym for the child.

[2] There is some dispute about how much time Phoebe spent with Father before Mother died. Father testified it was “four or five days,” but according to Grandparents, she spent just one day with him.

[3] Given the concern that the “rule 23B-like remand” procedure created in In re S.H., 2007 UT App 8, 155 P.3d 109, may conflict with the Utah Rules of Appellate Procedure, see In re C.M.R., 2020 UT App 114, ¶¶ 36–37, 473 P.3d 184 (Harris, J., concurring), and because it has been applied only in the child welfare context in juvenile court, we urge the Supreme Court’s Advisory Committee on the Rules of Appellate Procedure to consider lending formality to the procedure and to provide for its application to district court private termination proceedings as well as to juvenile court termination proceedings.

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How can I better understand the importance of marriage?

As a child with divorced parents, I find it hard to answer questions such as, “What is the importance of marriage?” How can I better understand the importance of marriage?

Being a divorced parent does make it harder to make a strong case for marriage. You are afraid to look hypocritical and not credible. Fortunately, you are not alone in your predicament. 

  • Ex-con parents have the same problem when advising their children to obey the law. That doesn’t make the advice wrong.
  • Fat, out of shape parents have the same problem when advising their children to exercise and stay fit. That doesn’t make the advice wrong.
  • High school dropout parents have the same problem when advising their children to get a good education. That doesn’t make the advice wrong. 

 Although telling children to “do as I say, not as I do,” is a hard sell, there is an obvious silver lining to encouraging children to differently than you did: “Kid, you don’t need to end up like me. Learn from my example not to do as I did.” That’s authentic. That has real value. Vicarious learning is learning from the experience of others. Everyone can benefit from vicarious learning, whether it’s learning how to succeed by repeating what successful people do (and don’t do) or how to succeed by avoiding the mistakes and wrong decisions of those who failed. 

Utah Family Law, LC | | 801-466-9277  

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Law from a legal assistant’s point of view, week 42

Law from a legal assistant’s point of view, week 42: Do you like divorce law?

By Quinton Lister, legal assistant 

Often when I tell people I know that I am a legal assistant to a divorce attorney, I usually get asked if I like divorce law. The answer to that question is yes and no. I will start with the “no” part of my answer. Divorce, at it’s best, is miserable. Sure there are “amicable” divorces but it is a painful experience and subject for everyone involved, and so, understandably, most people are not happy or congenial when going through divorce. Even those who are happy and congenial, are experiencing immense pain and sometimes they project that on me because “I’m the assistant”. So, in that sense, no, I do not like divorce law because sometimes it is hard to deal with people going through divorce. 

I will now address the “yes” part of my answer. I do like divorce law because I know that the work I do to help my boss help his clients is important and helps people who need help. I have come to see how important competent legal counsel is and I believe that a good lawyer (meaning an honest and competent one) can do a lot of good for you. I see how that work can bless lives and so for that reason, yes, I do like divorce law. 

Utah Family Law, LC | | 801-466-9277 

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Law from a legal assistant’s point of view, week 40

Law from a legal assistant’s point of view, week 40: Recording family law hearings

By Quinton Lister, legal assistant

My time as a legal assistant to a divorce and family law attorney in Utah has shown me a side of the legal system that has broken some ideals I had before starting the job. I liked to believe that all judges were wise people and that they always had the public’s best interest at heart. I am not implying that all judges are wholly corrupt, but prejudice and mediocrity is a more common occurrence than I believed and hoped.

One example of the mediocrity I am speaking of has been how most judges across the state of Utah treat the YouTube channel Utah Family Law TV (UFLTV). UFLTV is a YouTube channel my boss runs in his spare time. He does not profit from it, nor does he use it as a tool for promoting his legal practice. It is merely a channel he runs to help those who are going through divorce and other domestic relations cases educate themselves about the workings of the legal system by broadcasting the public proceedings of Utah domestic relations cases, like divorce and child custody disputes. These hearings and trials are open to the public. There is no law that prohibits these proceedings from being broadcast to the public. In fact, Utah’s court system proudly announced, about 8 years ago, a rule to make public court proceedings more open and accessible to the public by—purportedly—making them more open and accessible to the news media. While the rules allow a court to deny access to some public hearings under certain circumstances, more often than not UFLTV is denied access for no good reason. For instance, UFLTV coverage requests are routinely denied because the judge or commissioner merely believes UFLTV not to be a legitimate news reporter, yet these same judges refuse to give UFLTV any opportunity to provide evidence that it is clearly a news reporter as that term is defined in the rule.

Situations like this (and others) lead me to conclude that either the judges and commissioners don’t understand—or don’t care to understand—the very rules they are sworn and employed to obey or they simply want to prevent media coverage of public domestic relations proceedings, so they twist the facts and the rules to reach the desired outcome. You don’t need to be a lawyer to see that the so-called “reasons” given for denying UFLTV media coverage requests just don’t hold factual or legal water.

Utah Family Law, LC | | 801-466-9277

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Law from a legal assistant’s point of view, week 21: Never

By Quinton Lister, legal assistant

I am still new at my job. I have only been a legal assistant since Summer of 2021, but I know for myself that I would never go to court representing myself. There is simply too much going on in the legal system to not have expert help.  

Perhaps you think I am biased because my boss is a lawyer, but I have been to enough hearings and a few trials to know that “Pro Se” ain’t the way to go. Pro Se litigants are at a tremendous disadvantage simply because they do not know what they do not know. Many people elect to represent themselves due to financial constraints, while this is completely understandable, I feel for these people. They are at the mercy of a system that kills the weak (for lack of a more flattering term). The legal system seems more often to create victims rather than protect them. True justice is hard work, and if you are not trained, no matter how hard you work the load will likely be too much to bear by yourself. 

Utah Family Law, LC | | 801-466-9277 

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Should I review the proposed settlement agreement with my own lawyer?

In a less complicated divorce, where each party has already agreed to the split of assets, do they each need to hire their own attorney, and why or why not? Should I review the proposed settlement agreement with my own lawyer?

I can answer your question conclusively in less than 100 words:

If your spouse and his/her lawyer submit to you a proposed agreement that appears to you (and you are not a lawyer yourself) to be a good, fair deal, would you prefer A) just to sign it hoping that it doesn’t contain any errors, omissions, or tricks and traps; or B) to sign it after first having your own independent counsel (i.e., your own lawyer) review the proposal to ensure it doesn’t contain any errors, omissions, or tricks and traps in it?

The correct course of action is obvious.

Utah Family Law, LC | | 801-466-9277

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