Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Attorneys for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES GREGORY K. ORME and RYAN D. TENNEY concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Appellant J.K. (Mother) appeals the juvenile court’s order substantiating several database findings of abuse entered by the Division of Child and Family Services (DCFS). We affirm.
BACKGROUND
¶2 In August 2020, the State filed with the juvenile court a Verified Petition for Protective Supervision requesting the court to find Mother’s son, K.T., “abused, neglected and/or dependent and to grant protective supervision of [K.T.] to DCFS.” The petition alleged that DCFS had on three separate occasions previously supported findings of abuse of K.T. against Mother.[1] In addition to the request for protective supervision of K.T., the petition requested that the juvenile court enter an order “[s]ubstantiating[2] the DCFS supported finding(s) pursuant to Utah Code Ann. § 78A-6-323,” now recodified at Utah Code section 80-3-404.[3]
¶3 In March 2021, following discussions with Mother, the State filed with the juvenile court an Amended Verified Petition for Protective Supervision. The amended petition again asked the court to find K.T. “neglected and/or dependent and to grant protective supervision of [K.T.] to DCFS,” but it eliminated the prior request that the court find K.T. to be “abused.” The amended petition repeated the original petition’s request that the court enter a finding “[s]ubstantiating the DCFS supported finding(s) pursuant to Utah Code” section 80-3-404.
¶4 The parties thereafter appeared before the juvenile court to adjudicate the amended petition. At the outset of the hearing, the State indicated it had reached an agreement with Mother to submit the amended petition “for [a] finding of neglect” and requested, without objection, that “the issue of substantiating the DCFS supported findings” be “set over.” Thereafter, Mother admitted many of the allegations of the amended petition. But pursuant to rule 34(e) of the Utah Rules of Juvenile Procedure, she declined to either admit or deny the allegations that DCFS had previously supported findings of abuse by Mother against K.T.[4] The parties then presented argument. The State argued for a finding of neglect, while Mother argued for a finding of dependency. After the hearing, the court entered a finding of neglect[5] and granted “[p]rotective supervision of [K.T.] . . . to DCFS.”[6] The court “reserve[d] the issue of substantiating the DCFS supported findings for the next hearing.”
¶5 In June 2021, the case came before the juvenile court for a disposition hearing, during which the State requested that the court address the substantiation issue. The court entertained argument and took the matter under advisement. It thereafter entered a written order substantiating the three DCFS supported findings of abuse by Mother contained in both the original and amended petitions. Specifically, it substantiated the supported findings that K.T. had suffered emotional abuse, physical abuse, and chronic emotional abuse.
ISSUES AND STANDARDS OF REVIEW
¶6 Mother now appeals the juvenile court’s order substantiating the DCFS supported findings of abuse and raises three issues for our review. The first two issues present questions as to the statutory authority of the juvenile court. Mother first argues the juvenile court exceeded its statutory authority to substantiate the DCFS findings of abuse because the amended petition alleged only neglect or dependency and the court had adjudicated only a finding of neglect. “Questions of jurisdiction and statutory interpretation are questions of law that we review for correctness, giving no particular deference to lower court decisions.” In re B.B.G., 2007 UT App 149, ¶ 4, 160 P.3d 9.
¶7 In a similar vein, Mother next argues the State and the juvenile court were bound by the stipulation of the parties to submit the amended petition only for “a finding of neglect.” When “the facts [are] stipulated, we review the conclusions drawn by the juvenile court for correctness.” In re B.T., 2009 UT App 182, ¶ 5, 214 P.3d 881 (quotation simplified).
¶8 Lastly, Mother alternatively argues her trial counsel was ineffective for not advising her that the juvenile court could deviate from its legal adjudication of neglect and later substantiate for abuse. “An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law.” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162.
ANALYSIS
I.
¶9 We turn first to Mother’s argument that the juvenile court exceeded its statutory authority in substantiating the DCFS findings for abuse because the amended petition alleged only neglect or dependency and the court had adjudicated K.T. as neglected. We are unpersuaded by this argument because it conflates the State’s request that the court adjudicate K.T. as neglected with its independent request that the court substantiate the DCFS supported findings of abuse. The State’s request to adjudicate K.T. as neglected so as to bring the child within the jurisdiction of the court and under the protective supervision of DCFS was separate from its request that the court substantiate DCFS’s finding that K.T. had suffered a severe type of child abuse. As explained below, the juvenile court had independent statutory authority to adjudicate both issues.
¶10 In Utah, proceedings concerning abuse, neglect, and dependency are governed by Chapter 3 of the Utah Juvenile Code (the UJC). Pursuant to Chapter 3, “any interested person may file an abuse, neglect, or dependency petition” in the juvenile court. Utah Code Ann. § 80-3-201(1) (LexisNexis Supp. 2022). Among other things, the petition must include “a concise statement of facts, separately stated, to support the conclusion that the child upon whose behalf the abuse, neglect, or dependency petition is brought is abused, neglected, or dependent.” Id. § 80-3-201(4)(a). After the petition is filed, the court may, upon making specific findings, “order that the child be removed from the child’s home or otherwise taken into protective custody.” Id. § 80-3-204(2). If the court so orders, a shelter hearing must then be held to determine whether continued removal and placement of the child in DCFS’s temporary custody are necessary. See id. § 80-3-301.
¶11 After the shelter hearing, the juvenile court conducts an adjudication hearing. See id. § 80-3-401. An adjudication is a determination of the merits of the State’s petition of abuse, neglect, or dependency. “If, at the adjudication hearing, the juvenile court finds, by clear and convincing evidence, that the allegations contained in the abuse, neglect, or dependency petition are true, the juvenile court shall conduct a dispositional hearing.” Id. § 80-3-402(1); see also In re S.A.K., 2003 UT App 87, ¶ 14, 67 P.3d 1037 (“In child welfare proceedings, if the petition’s allegations of neglect, abuse, or dependency are found to be true in the adjudication hearing, those findings provide the basis for determining the consequences in the disposition hearing.”). “The dispositional hearing may be held on the same date as the adjudication hearing . . . .” Utah Code Ann. § 80-3-402(2). Dispositions available after adjudication include, among other things, vesting custody of an abused, neglected, or dependent minor in DCFS or any other appropriate person. Id. § 80-3405(2)(a)(i). Thus, an adjudication of abuse, neglect, or dependency brings the child and family within the juvenile court’s jurisdiction.
¶12 A separate chapter of the UJC addresses child welfare services. Chapter 2 creates DCFS and establishes its statutory authority and responsibilities. Among these is its responsibility to investigate reports that a child is abused, neglected, or dependent and to enter findings at the conclusion of its investigations. See id. § 80-2-701. A “supported” finding by DCFS is based on evidence available at the completion of an investigation indicating that “there is a reasonable basis to conclude that abuse, neglect, or dependency occurred.” Id. § 80-1-102(89). Chapter 2 requires that DCFS notify alleged perpetrators of supported findings and establishes a procedure for challenging such findings. Id. §§ 80-2707, -708. In cases involving a supported finding of a severe type of child abuse, the statute also gives DCFS authority to file a petition in the juvenile court seeking substantiation of a supported finding. Id. § 80-2-708(1)(c).
¶13 Part 10 of Chapter 2 governs DCFS’s record-keeping responsibilities. DCFS uses a database known as the Management Information System to track child welfare and protective services cases. See id. § 80-2-1001(3), (4). DCFS uses a subset of that system known as the Licensing Information System (the LIS) to track cases for licensing purposes. See id. § 80-2-1002(1)(a)(i). In cases involving a severe type of child abuse or neglect, DCFS enters supported findings into the LIS and the alleged perpetrator thereafter “may be disqualified from adopting a child, receiving state funds as a child care provider, or being licensed by DCFS, a human services program, a child care provider or program, or a covered health care facility.” State v. A.C., 2022 UT App 121, ¶ 3, 521 P.3d 186 (quotation simplified).
¶14 All these statutes were in play in these proceedings. On three separate occasions prior to the State’s filing of the petition, DCFS had investigated Mother for abuse of K.T. Following each of its three investigations, DCFS had supported a finding of abuse of K.T. against Mother. One of those supported findings was of “chronic emotional abuse” of K.T., which falls within the statutory definition of a “severe type of child abuse” under Utah Code section 80-1-102(78)(a)(i)(A) that then must be entered into the LIS.
¶15 The amended petition removed the request that the juvenile court adjudicate K.T. as abused. Instead, it requested that the court adjudicate K.T. as neglected. But the amended petition also recited DCFS’s history with K.T., stating that DCFS had previously supported findings of abuse against Mother, and requested that the court substantiate these supported findings of abuse. Adjudicating both requests for relief fell squarely within the juvenile court’s express statutory authority. Indeed, Mother identifies no statutory provision limiting the court’s authority to substantiate DCFS findings of abuse based on the outcome of the State’s independent request to adjudicate the status of an allegedly abused, neglected, or dependent child.
¶16 Mother’s argument that the juvenile court’s substantiation decision must be consistent with its adjudication decision in a related petition for abuse, neglect, or dependency is also inconsistent with the burdens of proof dictated by the UJC. While the juvenile court may adjudicate a minor as abused, neglected, or dependent based only on clear and convincing evidence, it can substantiate a DCFS finding based on a mere preponderance of the evidence. Compare Utah Code Ann. § 80-1-102(87), withid. § 80-3-402(1). These different standards give rise to the distinct possibility that a juvenile court could decline to adjudicate a minor as abused, while still substantiating a DCFS finding of abuse based on the lower burden of proof.
¶17 Despite the absence of a statutory provision linking the outcome of the amended petition to the outcome of a request for substantiation, Mother argues the juvenile court’s ruling on the neglect petition ended the court proceedings, “leaving no question open for further judicial action.” (Quoting In re M.W., 2000 UT 79, ¶ 25, 12 P.3d 80.) But this argument is directly contrary to the statutory language. Utah Code section 80-3-404 addresses the responsibility of the juvenile court to adjudicate DCFS supported findings of severe child abuse or neglect and their inclusion in or removal from the LIS. Upon the filing of “an abuse, neglect or dependency petition . . . that informs the juvenile court that [DCFS] has made a supported finding that an individual committed a severe type of child abuse or neglect, the juvenile court shall . . . make a finding of substantiated, unsubstantiated, or without merit” and include the finding in a written order. Utah Code Ann. § 80-3-404(1) (emphasis added). This provision also allows joinder of proceedings for adjudication of supported findings of severe abuse or neglect with those that do not constitute severe abuse. Id. § 80-3-404(3). And it does not limit the juvenile court’s ability to substantiate findings of severe abuse to those cases in which the court has granted a petition to adjudicate a child as abused. In short, the juvenile court was required to rule on the State’s substantiation request.[7]
II.
¶18 Next, Mother argues the State and juvenile court were bound by the facts and legal conclusions contained in the amended petition to which the parties had stipulated. Mother reasons that because the parties had stipulated to a finding of neglect, the juvenile court could not substantiate DCFS’s supported findings of abuse.
¶19 Mother’s argument is inconsistent with both the language of the amended petition and the course of the proceedings before the juvenile court. At the hearing on the amended petition, the State informed the court that the State and Mother had agreed to submit the matter to the court for a “finding of neglect” and that they “would ask also the Court to reserve the issue of substantiating the DCFS supporting findings at this point in time and set that over for disposition.” In connection therewith, Mother agreed to admit the allegations of the amended petition except those in paragraphs 5 and 6. Paragraph 5 alleged DCFS’s history with the family, including DCFS’s supported findings of abuse. Paragraph 6 alleged additional facts supporting the conclusion that K.T. was neglected or dependent.
¶20 Although Mother declined to admit the allegations of paragraphs 5 and 6, she did not deny them. Instead, she proceeded pursuant to rule 34(e) of the Utah Rules of Juvenile Procedure by neither admitting nor denying them. But as the juvenile court expressly informed Mother at the hearing, Mother’s decision not to deny those allegations had legal significance since “[a]llegations not specifically denied by a respondent shall be deemed true.” See Utah R. Juv. P. 34(e). The court was therefore free to base its decision on all the allegations of the amended petition, including those in paragraph 6 regarding DCFS’s supported findings of abuse. Because the parties’ stipulation was not inconsistent with the court’s ruling, it did not err.
III.
¶21 Lastly, we turn to Mother’s argument that her trial counsel was ineffective for not advising her that the juvenile court could deviate from its adjudication of neglect and substantiate DCFS’s findings of abuse for entry into the LIS. To prevail on an ineffective assistance of counsel claim, Mother must show that counsel’s performance was deficient and that this deficient performance prejudiced her defense. See In re C.M.R., 2020 UT App 114,¶ 19, 473 P.3d 184. A reviewing court must “indulge in a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance, and that under the circumstances, the challenged action might be considered sound trial strategy.” State v. J.A.L.,2011 UT 27, ¶ 25, 262 P.3d 1 (quotation simplified).
¶22 After indulging these presumptions, we are unable to conclude that counsel’s performance was deficient because there are many sound reasons why Mother’s decision to settle the petition with a finding of neglect, while allowing the juvenile court to resolve the substantiation issue, was sound strategy. The petition sought a finding that K.T. had been abused, and it was possible, if not likely, that proceeding to trial on the original petition could have resulted in both an adjudication of abuse and a substantiation of the abuse claims against Mother. The fact that Mother now regrets her decision to settle does not lead to the conclusion that counsel performed deficiently. Mother appeared before the juvenile court, and the court explained her rights and questioned her about the voluntariness of her decision. Nothing in the record suggests that Mother’s decision to settle was the result of ineffective assistance of counsel.
CONCLUSION
¶23 The juvenile court acted well within its statutory authority in substantiating DCFS’s findings of child abuse, and the court was entitled to consider all the allegations of the amended petition when determining whether to substantiate that finding. Mother has not demonstrated how her decision to settle was the result of ineffective assistance of counsel. Accordingly, we affirm.
[1] As relevant here, “abuse” is defined as “nonaccidental harm of a child” or “threatened harm of a child.” Utah Code Ann. § 80-1102(1)(a)(i) (LexisNexis Supp. 2022). “‘Supported’ means a finding by [DCFS] based on the evidence available at the completion of an investigation, and separate consideration of each allegation made or identified during the investigation, that there is a reasonable basis to conclude that abuse, neglect, or dependency occurred.” Id. § 80-1-102(89).
[2] “‘Substantiated’ or ‘substantiation’ means a judicial finding based on a preponderance of the evidence, and separate consideration of each allegation made or identified in the case, that abuse, neglect, or dependency occurred.” Id. § 80-1-102(87).
[3] The statutory provisions of Title 78A of the Utah Code that were in effect at the time of the juvenile court proceedings have since been renumbered and recodified as part of the Utah Juvenile Code, which is now found in Title 80 of the Utah Code. Because the provisions relevant to our analysis have not been substantively amended, we cite the recodified version for convenience.
[4] Under rule 34(e) of the Utah Rules of Juvenile Procedure, “[a] respondent may answer by admitting or denying the specific allegations of the petition, or by declining to admit or deny the allegations. Allegations not specifically denied by a respondent shall be deemed true.” Utah R. Juv. P. 34(e).
Here, the juvenile court took great care to ensure that Mother understood the consequences of not denying these allegations. The court informed Mother that it was “going to find [the allegations] to be true, even though [she was] not admitting nor denying [them].” When Mother indicated she did not understand, the court took a break to allow Mother to confer with her counsel. Following the break, the court confirmed that Mother had ample opportunity to discuss the issue with counsel and understood what was happening with respect to the allegations at issue.
[5] Although the juvenile court entered a finding of neglect pursuant to the stipulation of the parties, it indicated the evidence was also sufficient to support a finding of abuse.
[6] Even though the court placed K.T. under the protective supervision of DCFS, K.T. remained in his father’s custody.
[7] Mother also argues the juvenile court erred by not ruling on the State’s substantiation request at the time it adjudicated the petition for neglect. But Mother did not preserve this argument below. When the State raised the substantiation request at the adjudication hearing and asked that it be continued to a later hearing, Mother did not object.
2021 UT App 28 – THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF C.Z., A PERSON UNDER EIGHTEEN YEARS OF AGE.
M.Z., Appellant,
v.
STATE OF UTAH, Appellee.
Opinion
No. 20200227-CA
Filed March 12, 2021
Third District Court, Salt Lake Department
The Honorable Mark W. May
No. 1156353
Colleen K. Coebergh, Attorney for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
JUDGE DIANA HAGEN authored this Opinion, in which JUDGE GREGORY K. ORME and SENIOR JUDGE KATE APPLEBY concurred.[1]
HAGEN, Judge:
¶1 M.Z. (the father) appeals the juvenile court’s termination of his parental rights to his son, C.Z. (the child). We conclude that the State proved by clear and convincing evidence that the father had not remedied the circumstances that led to the child’s removal and affirm the juvenile court’s termination of the father’s parental rights.
BACKGROUND
¶2 The child was born in May 2017.[2] In December 2017, C.Z.’s mother (the mother) was charged with aggravated assault and domestic violence in the presence of a child for stabbing the father in the chest in front of the child. At the time, the mother was already under juvenile court jurisdiction for criminal trespass and habitual truancy. The juvenile court issued a no-contact order between the mother and the father and ordered that the child be assessed as “at risk of removal” from the mother’s care.
¶3 Throughout January and February 2018, the Division of Child and Family Services (DCFS) “worked with the family in devising a safety plan for the child to remain” in the home with the mother. DCFS reported that the mother had several “thinking errors,” including her beliefs that she did not need to abide by the no-contact order, did not need therapy, and that there was no harm in smoking marijuana while breastfeeding the child. DCFS also reported that the father and mother had smoked marijuana in the presence of the child on multiple occasions, including one instance where the father was caught smoking in the mother’s family’s house, resulting in the family’s eviction. At the end of February, the mother was ordered “to be held in the Salt Lake Valley Detention Center” for a brief period.
¶4 In March 2018, DCFS again attempted to meet with the mother to establish a safety plan so the child could remain in her custody. The mother missed the meeting, and DCFS received a report that she had been smoking marijuana and had violated the no-contact order by spending the weekend with the father. As a result, the State filed a motion for the child’s expedited placement in temporary custody. At the shelter hearing, the juvenile court granted the motion, placing the child in the temporary custody of DCFS. At a follow-up hearing later that month, the court made official findings. In relation to the mother, the court found the child was “neglected” under Utah Code subsection 78A-6-105(41). In relation to the father, the court found the child was “[d]ependent” under Utah Code subsection 78A-6-105(14), meaning that the child was deemed “homeless or without proper care through no fault of the child’s parent, guardian, or custodian.”
¶5 Two months later, in May of 2018, the court held a disposition hearing to establish permanency goals for the child pursuant to Utah Code section 78A-6-312. The court determined that the child’s primary permanency goal would be “first and foremost reunification” with the parents and “the concurrent plan” would be “adoption.” The court ordered DCFS to “provide reunification services to the parents consistent with the services identified in the service plan.” The court ordered all parties to follow the service plan, which included a requirement that the parents complete domestic violence assessments. After father’s counsel raised concerns that the father would “get assessed as a perpetrator rather than a victim,” the court ordered that the plan be “amended to have the father participate in a [domestic violence] class as a victim.”
¶6 At the first child welfare review hearing in July 2018, the court authorized unsupervised visits for the father, but not for the mother, whose parent-time continued to be supervised. The caseworker noted that the parents still seemed to be spending time together and suggested couples therapy if they hoped to co-parent someday. The court lifted the no-contact order but warned the parents that it was for the purpose of domestic violence therapy only and “that doesn’t mean you drop by any time you want.” At the next child welfare review hearing, in September 2018, the court found that both parents were “doing really well” and “marching toward reunification.”
¶7 The steady progress did not continue, however. At the third child welfare review in December 2018, the court found that the mother was smoking marijuana again, the father was not following through with his therapy and, most alarming, there had been another domestic violence incident in the presence of the child on Thanksgiving Day. The parents, apparently living together again, fought about the child’s nap, and the mother hit the father in the face. He responded by pushing her away by the throat. She grabbed him by the hair and tried to prevent him from leaving. Once he got away, the father ran to a nearby school, where the responding police officer found him with a bloody nose and no shoes. The officer cited the mother as “the predominant aggressor” but allowed the father to remain in the home because, the officer later testified, the father “basically wanted to go back because he said his child was a ward of the State, that this was the only time they got to spend time with him.” The juvenile court warned both parents this was “a step back” and warned the father in particular about the domestic violence, saying, “You have to go to therapy. . . . [Y]ou’ve got to do all these things” and there is “not a lot of time left.” The court informed both parents that, if it was not safe for the child to return home by the time of the final permanency hearing, the court would have no choice but to “terminate services” toward reunification and instead move toward adoption, and “[n]obody wants to go down that road.”
¶8 The final child welfare review hearing was sixty days later, in February 2019. Report of the parents’ progress was still mixed. The State expressed ongoing concerns about the father’s ability to “hold boundaries with Mom and keep kiddo safe.” The DCFS caseworker also reported that the father’s attendance at therapy had not been consistent, although father’s counsel complained that the father still had not received enough of the type of specialized domestic violence therapy he needed as a victim. The court informed the parents that if the permanency hearing were that day, it could not return the child to them. The court warned the father, in particular, that if reunification of the child with the mother was not going to be possible, the father had better start giving “full effort” and decide, “Is this what you want?”
¶9 At the permanency hearing on March 19, 2019, the court found that “return to the home would be contrary to the welfare of the child at [that] time.” But, the court did find, by a preponderance of the evidence that there had been substantial compliance, reunification was probable within ninety days, and an extension would be in the best interest of the child. The court warned the parents that the report in ninety days had “better be a great report.”
¶10 At the continued permanency hearing on May 30, 2019, the DCFS caseworker reported that the father “had been fully engaged” and wanted reunification to continue, but the mother had “reached the point that she believe[d] that she’s not in the child’s best interest” and was ready to relinquish her parental rights voluntarily. The caseworker also expressed concern that the parents were apparently living together even though the father reported moving out of the mother’s residence several months earlier. The guardian ad litem reported that she did not feel it was safe to return the child to either parent that day. She had particular concern about the father’s “relationship with the mother.” The court gave the father one more extension, but with the following warning:
[T]here’s continued domestic violence . . . . [E]ven if [the father] is the victim, he was stabbed the first time and he went back into that relationship with his child, and then there’s been another domestic violence incident, and they’re still together . . . . He is supposed to be in treatment, and he hasn’t gone .
. . .
. . . .
Dad, you have to get in treatment. I mean that’s the bottom line. I don’t need any more excuses. You have to be in treatment. You keep going back to a toxic relationship, and if you’re going to do that, then whatever her baggage is is your baggage. That’s the way the law works.
¶11 At that final permanency hearing in August 2019, the court found that returning the child to the father would create a substantial risk of detriment to the child’s physical or emotional well-being. The court explained, “[T]he law is pretty firm and . . . at this point I can’t give another extension, and it’s not safe today to send the child home. So under the law, . . . I have to terminate reunification services, I have to change the goal to adoption.”
¶12 The State filed a petition for termination of parental rights, and the court set the matter for trial. In the interim, the mother voluntarily relinquished her parental rights.
¶13 At trial in January 2020, the State presented evidence of the father’s continued unhealthy relationship with the mother. The father’s therapist, provided by DCFS, testified that the father had “symptoms of post-traumatic stress disorder” as a result of “having been attacked by” the mother. Nevertheless, the father testified that the mother had accompanied him on the last few visits with the child, after she voluntarily relinquished her parental rights. The foster parent, who dropped off the child for visits with the father, testified that the mother was with the father at every visit in December and January. When the State asked the father why the mother went along, he answered twice that the mother “wanted to see” the child and the father had never gotten a clear answer from the case worker as to whether that was allowed. The child’s guardian ad litem asked the court to expressly order that the mother was not allowed to attend visits with the child.
¶14 In February 2020, the juvenile court entered an order terminating the father’s parental rights. Applying a clear-and-convincing-evidence standard, the court made extensive factual findings and concluded that those findings supported four statutory grounds for termination: (1) that the father had been “an unfit or incompetent parent of his child”; (2) that the child had “been cared for in an out-of-home placement under the supervision” of DCFS, the father had “substantially neglected, willfully refused, or ha[d] been unable or unwilling to remedy the circumstances that cause[d] the child to be in an out-of-home placement,” and “there [was] a substantial likelihood that the parent [would] not be capable of exercising proper and effective parental care in the near future”; (3) that there had been a failure of parental adjustment; and (4) that the father had made “only token efforts to provide support” for the child. See Utah Code Ann. § 78A-6-507(1)(c)–(f) (LexisNexis Supp. 2020). The court concluded that, “based on the totality of the evidence, it [was] in [the child’s] best interest to be adopted by the foster parents” and that it was “strictly necessary to terminate the father’s parental rights to permit that adoption.”
ISSUE AND STANDARD OF REVIEW
¶15 The father contends that the juvenile court erred in terminating his parental rights. “Whether a parent’s rights should be terminated presents a mixed question of law and fact.” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435. “The ultimate conclusion that a parent is unfit or that other grounds for termination have been established is a legal question.” In re L.M., 2019 UT App 174, ¶ 5, 453 P.3d 651 (per curiam) (cleaned up). But because “such decisions rely heavily on the juvenile court’s assessment and weighing of the facts in any given case,” that “decision should be afforded a high degree of deference.” Id. (cleaned up). Thus, we will overturn the juvenile court’s decision only when that decision is “against the clear weight of the evidence.” Id. (cleaned up). A decision is against the clear weight of the evidence when the court “either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” See In re B.R., 2007 UT 82, ¶ 12. Indeed, “an appellate court must be capable of discriminating between discomfort over a trial court’s findings of fact—which it must tolerate—and those that require a court’s intercession. It must forebear disturbing the ‘close call.’” In re Z.D., 2006 UT 54, ¶ 33, 147 P.3d 401 (cleaned up).
ANALYSIS
¶16 Utah law recognizes that “the right of a fit, competent parent to raise the parent’s child without undue government interference is a fundamental liberty interest . . . and is a fundamental public policy of this state.” In re Adoption of K.A.S., 2016 UT 55, ¶ 25, 390 P.3d 278 (cleaned up); see also Utah Code Ann. § 62A-4a-201(1)(c) (LexisNexis Supp. 2020).[3] Indeed, there is a “strong . . . presumption that it is in a child’s best interests to be in the custody of his or her natural parent.” In re J.M.V., 958 P.2d 943, 947 (Utah Ct. App. 1998). But, “parental rights are not absolute. A parent’s rights must be balanced against the state’s important interest in protecting children from harm.” In re J.A., 2018 UT App 29, ¶ 44, 424 P.3d 913 (cleaned up).
¶17 In this case, the child was adjudicated dependent as to the father in March 2018, shortly after the initial shelter hearing that placed the child in DCFS custody. Utah Code Ann. § 78A-6105(14) (LexisNexis Supp. 2020). A determination of dependency rebuts “the presumption that the child is best served by being in the parent’s custody.” In re J.M.V., 958 P.2d at 948. But even though the parental presumption does not apply, the petitioner—in this case, the State—always has the burden to “establish the facts” justifying termination by “clear and convincing evidence.” See Utah Code Ann. § 78A-6-506(3) (LexisNexis 2018).
¶18 “To terminate parental rights, a juvenile court must make two separate findings.” In re C.T., 2018 UT App 233, ¶ 12, 438 P.3d 100 (cleaned up). First, the “court must find by clear and convincing evidence that there is at least one statutory ground for termination.” Id. (cleaned up). Second, “the court must assess what is in the child’s best interest” and determine “whether termination is strictly necessary to promote the child’s welfare and best interest.” In re B.T.B., 2020 UT 60, ¶ 76, 472 P.3d 827.
¶19 The father’s arguments on appeal are limited to challenging the first step in the juvenile court’s analysis— whether a statutory ground for termination was established by clear and convincing evidence. Where the juvenile court finds multiple grounds for termination, “we will affirm when we are able to sustain one of the grounds and need not consider the other grounds relied on by the court.” In re D.M., 2020 UT App 59, ¶ 10, 462 P.3d 1278; see also Utah Code Ann. § 78A-6-507(1) (LexisNexis Supp. 2020) (stating that “the court may terminate all parental rights with respect to the parent if the court finds any one” statutory ground).
¶20 We focus our analysis on the juvenile court’s conclusion that termination of parental rights was justified because the father failed to remedy the circumstances causing the child’s removal under Utah Code subsection 78A-6-507(1)(d) (Supp. 2020).[4] To terminate parental rights on this ground, the court must find,
(i) that the child is being cared for in an out-of-home placement under the supervision of the court or the division;
(ii) that the parent has substantially neglected, willfully refused, or has been unable or unwilling to remedy the circumstances that cause the child to be in an out-of-home placement; and
(iii) that there is a substantial likelihood that the parent will not be capable of exercising proper and effective parental care in the near future.
Utah Code Ann. § 78A-6-507(1)(d).
¶21 In this case, the child was in an out-of-home placement under the supervision of the court and DCFS. The “circumstances” that had caused the child to be placed in foster care included the child’s dependency status and the child’s exposure to domestic violence. The evidence supports the juvenile court’s finding that the father failed to remedy either of those circumstances.[5]
¶22 First, the father was unable to remedy the circumstances that led to the removal of the child based on the dependency adjudication. To remedy those circumstances, the father needed to ensure that he could provide a home and proper care for the child. See id. §§ 78A-6-105(14), -507(1)(d).
¶23 Although the father made progress at maintaining employment and ending his drug use, he bounced back and forth between living with the mother and staying at his father’s house where the conditions were unsuitable for a child. Even if the father assumed until late in the child welfare proceedings that the mother would provide the primary home for the child, the court warned him to be prepared to step up when it appeared doubtful that the child would be reunited with the mother. The court found that the father, having gone through the two previous permanency hearings, was aware that by the final permanency hearing “changes in his life had to be in place” so “that it was safe for [the child] to return to him that day.”
¶24 Despite having eighteen months to achieve such stability, the father did not have appropriate housing or a plan for childcare until three days before the final permanency hearing. Given the father’s track record, the juvenile court was skeptical about the stability of these last-minute living and childcare arrangements. “The weight which a juvenile court must give any present ability evidence is necessarily dependent on the amount of time during which the parent displayed an unwillingness or inability to improve his or her conduct.” In re B.R., 2007 UT 82, ¶ 13, 171 P.3d 435 (cleaned up). Therefore, “if a parent has demonstrated some improvement in parenting ability but not a strong likelihood that the parent can provide a proper home for the child in the very near future,” we cannot “overturn a court’s order terminating parental rights.” Id. (cleaned up). After eighteen months of services, the father had not progressed to even a single overnight visit with the child and had exhausted all possible extensions of time. The court reasonably concluded that the father’s efforts were “far too little far too late.”
¶25 Perhaps more importantly, the father failed to protect the child from exposure to domestic violence by the mother. The mother’s serious assault on the father in the presence of the child was one of the circumstances that led to the child’s removal. Despite a no-contact order, the father continued spending time with the mother, and there was another incident of domestic violence in the presence of the child on Thanksgiving Day. Even after the juvenile court terminated the mother’s parental rights, the father continued bringing her to visits with the child, placing the child in an unsafe environment.
¶26 That evidence supported the court’s finding that the father “and the mother still have an ongoing relationship” and that the father “would likely allow the mother to parent” the child. The court found that “the mother is an unfit parent” and that allowing her to parent was “of serious concern because: (a) the mother stopped participating in services; (b) the mother was the aggressor in the domestic violence incidents; (c) she had positive drug tests on the rare occasions when she chose to test; and (d) the mother voluntarily relinquished her parental rights.” The father’s choice to remain involved with the mother— whether romantically or as a co-parent—placed the child at continued risk.
¶27 The father points to evidence that he received mixed messages from the caseworker about his relationship with the mother and whether she was permitted to join him for visits with the child. But the juvenile court was “in the best position to weigh [this] conflicting testimony, to assess credibility, and from such determinations, render findings of fact.” See In re J.H., 2012 UT App 195, ¶ 2, 283 P.3d 971 (per curiam). We will not overturn the juvenile court’s determinations unless they are against the clear weight of the evidence. See In re Z.D., 2006 UT 54, ¶ 33, 147 P.3d 401. The existence of the no-contact order, as well as the court’s admonitions to the father, support the conclusion that the father had “chosen to remain with the mother” despite the danger posed to the child.
¶28 The father also argues that the juvenile court “abused its discretion in not properly evaluating [him] as a domestic violence survivor.” Specifically, the father suggests that the court employed something of a double standard and analyzed his “reactions to domestic violence perpetrated upon him differently than a female victim.” We disagree. The juvenile court ordered that the father be provided treatment as a victim and faulted the mother for the domestic violence.
¶29 We recognize that “extricating oneself from an abusive relationship can pose an extremely difficult hurdle for victims of domestic abuse,” regardless of gender. See In re L.M., 2019 UT App 174, ¶ 8, 453 P.3d 651 (per curiam). Nevertheless, we have consistently held that a juvenile court faced with a victim parent who does not leave the abusive relationship “may find that the parent has failed to remedy the circumstances that led to a child’s removal.” Id. For example, in In re T.M., we affirmed the termination of a father’s parental rights in part because he had “effectively prioritized his relationship with” his abusive spouse over the protection of his children. 2006 UT App 435, ¶ 9, 147 P.3d 529. In that case, the juvenile court found that “although [the father] completed most of the treatment plan—albeit a significant portion only in the eleventh hour, . . . he [had] been unable to quit his self-described ‘addiction’ to [the mother], and his unwillingness to give up his ongoing relationship with [the mother] . . . endanger[ed] the [c]hildren.” Id. ¶ 9. We agreed, stressing that the father’s “present and ongoing failure to detach himself from this relationship and protect the [c]hildren from exposure to [the mother was] especially significant to the court’s finding of unfitness.” Id. ¶ 19. This court has reached the same conclusion in numerous cases where the mother was the victim of domestic violence. See, e.g., In re L.M., 2019 UT App 174, ¶¶ 3, 6–7, 11 (holding that “the evidence was sufficient to support the juvenile court’s determination that [the mother] had failed to remedy the circumstances leading to [the child’s] removal” where mother did not show up to domestic violence victim therapy appointments, “had not internalized the lessons from the domestic violence therapy,” and brought [the father] to visits after his parental rights had been terminated); In re F.M., 2002 UT App 340, ¶¶ 3, 7–8, 57 P.3d 1130 (affirming termination of mother’s parental rights where evidence showed she had codependent relationship with abusive father, had talked about leaving father long enough to regain custody of the children and then going back to him, and then had contact with him just two weeks before the termination trial); In re G.B., 2002 UT App 270, ¶ 17, 53 P.3d 963 (affirming termination of mother’s parental rights where mother claimed she had complied with the service plan, but juvenile court found that she continued to reside in a home with the abusive father, and had no intention of separating from him); In re G.D., 894 P.2d 1278, 1280 (Utah Ct. App. 1995) (affirming termination of mother’s parental rights in part because she “failed to sever all relationships with the father within a reasonable time” and failed to “eliminate the risk of continued abuse”).
¶30 In these cases, juvenile courts are not “unnecessarily drawing negative inferences from a [victim’s] decision to maintain a relationship with the batterer.” In re C.C.W., 2019 UT App 34, ¶ 19 n.4, 440 P.3d 749. Rather, they are focusing on the well-being of the child, whose safety is of primary importance, by assessing whether the parent’s ongoing refusal to sever the relationship poses a continuing threat to the child. Domestic violence has a negative effect on a child even if the child is not the direct recipient of or witness to the violence. See id. ¶ 20, (recognizing that children in these situations learn lessons such as “that the violence toward a loved one is acceptable” and that “coercive power and violence” are “a way to influence loved ones[,]” and noting that such children “fail to grasp the full range of negative consequences for the violent behavior” (cleaned up)). “Utah case law indicates that courts have minimal empathy for parents whose strong emotional ties to their spouses or significant others jeopardize their children’s safety.” In re T.M., 2006 UT App 435, ¶ 20. Here, the juvenile court’s conclusion that the father had not remedied the circumstances that led to removal was supported by clear and convincing evidence that he was unable or unwilling to extricate himself from a relationship with the mother that was toxic and that posed an ongoing threat to the child.
¶31 In concluding that the father failed to remedy the circumstances that led to the child’s removal and would not be capable of exercising proper and effective parental care in the near future, the juvenile court noted that it “truly struggled with this decision.” It “extended reunification services twice, admittedly based on sympathy for [the father’s] circumstances as opposed to strict compliance with the statutes governing extension of services.” But permanency adjudication occurs on a strict timeline because the passage of time seriously affects the child waiting in “legal limbo.” See In re S.L., 1999 UT App 390, ¶ 42, 995 P.2d 17 (explaining that the “overarching purpose” of our child welfare laws “is to provide stability and permanency for abused and neglected children, and to end the ‘legal limbo’ of state custody as quickly as possible” (cleaned up)). And, as the juvenile court found, “[t]he length of time that [the child] has been out of the home relative to his age and the length of time that it took [the father] to . . . become stable had a significant destructive effect on their parent/child relationship.” Viewing the record as a whole, the juvenile court’s finding that the father had not remedied the circumstances that had created the out-of-home placement was not against the clear weight of the evidence.
CONCLUSION
¶32 We conclude that there was sufficient evidence to support the juvenile court’s finding under Utah Code subsection 78A-6507(1)(d) that the father had failed to remedy the circumstances that caused the child’s out-of-home placement. This is true as to both the child’s dependency status and the risk of exposure to domestic violence. Accordingly, we affirm the juvenile court’s termination of the father’s parental rights.
Utah Family Law, LC | divorceutah.com | 801-466-9277
————————————————————
[1] Senior Judge Kate Appleby sat by special assignment as authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
[2] The mother and the father were not married at the time of the birth, but the father’s paternity was undisputed and officially established prior to the dependency adjudication in March 2018.
[3] Where, as here, amendments to a statute do not affect the issues in this case, we refer to the current version of the statute.
[4] Because we do not address unfitness as an alternative ground for termination, we have no need to reach the father’s argument that the juvenile court “improperly deferred to the caseworker
regarding the ultimate issue of unfitness.”
[5] In applying this provision, the juvenile court did not improperly shift the burden to the father to demonstrate his fitness as a parent. Although the parent has a responsibility to remedy the circumstances that led to removal, Utah Code Ann. § 78A-6-507(1)(d), the State has the burden of proving by clear and convincing evidence that the parent failed to do so, id. § 78A-6-506(3). The court properly applied that burden in this case.
STATE OF UTAH, IN THE INTEREST OF
C.M.R., B.T.R., P.J.R., F.S., AND O.S.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
C.S., Appellant,
v.
STATE OF UTAH, Appellee.
Opinion
No. 20190808-CA
Filed August 6, 2020
Sixth District Juvenile Court, Manti Department
The Honorable Brody Keisel
No. 1097000
Emily Adams, Freyja Johnson, and Cherise M.
Bacalski, Attorneys for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred, with opinions.
CHRISTIANSEN FORSTER, Judge:
¶1 C.S. (Mother) appeals the juvenile court’s order adjudicating abuse, neglect, and dependency. Mother argues that the court erred in concluding that she abused her children without also making an express finding of harm. Alternatively, Mother asserts that her counsel (Trial Counsel) rendered ineffective assistance in advising her to enter admissions to the petition without adequate investigation. We affirm in part and remand for a limited evidentiary hearing.
BACKGROUND
¶2 The Division of Child and Family Services (DCFS) filed a petition in July 2019 seeking protective supervision of Mother’s five children (collectively, the Children). Based on information DCFS received from several referents, the petition alleged that the Children were abused, neglected, and dependent. Specifically, the petition asserted that Mother did not provide the Children with adequate nutrition and supervision; the Children lived in an unsanitary and unsafe home; Mother punished the Children with a hammer, fork, belt, and stick; Mother was unwilling to work with DCFS to address her lack of parenting skills, which exacerbated the Children’s behavioral issues and led to contentious and inconsistent visitation; and finally, Mother had recently been arrested. With regard to one child, the petition alleged that, while in the waiting room of a family counseling center, a witness observed,
Mother grabbed [the child] by the back-collar area of his shirt in such a manner that it restricted his ability to breathe and caused him to choke. Mother shoved his face into the corner with force and told him he needed to think about what he had done. [The child] told Mother he was having difficulty breathing and that Mother was hurting him. Despite [the child’s] statements Mother did not let up on his shirt or the forcing of his face into the corner.[1]
¶3 The juvenile court appointed Trial Counsel to represent Mother, and the parties reached a mediated agreement in response to the petition.[2] At the adjudication hearing held by the court following mediation, the State indicated that Mother would enter a plea responding to the allegations in the petition pursuant to rule 34(e) of the Utah Rules of Juvenile Procedure. See Utah R. Juv. P. 34(e) (“A respondent may answer by admitting or denying the specific allegations of the petition, or by declining to admit or deny the allegations. Allegations not specifically denied by a respondent shall be deemed true.”).
¶4 The juvenile court explained that under rule 34(e), a parent who does not specifically deny the State’s allegations essentially enters a “no-contest” plea in which that parent neither admits nor denies an allegation, but such an answer under the rule is treated “as if it were an admission.” The court further explained that each parent enjoyed “the right to deny the allegations,” in which case the matter would go to trial and the State would bear “the burden of proving the allegations in the . . . petition by . . . clear and convincing evidence.” Mother stated that she understood the consequences of not specifically denying the allegations in the petition under rule 34(e), namely, that she would be giving up her right to contest the allegations contained in the petition and that her right to appeal would be limited. Mother further explicitly confirmed that she was not under the influence of any drugs, alcohol, or medication during the hearing; that she was thinking clearly; and that she had not been forced, threatened, or promised anything to respond in a particular way to the allegations in the petition.
¶5 The juvenile court also asked Mother if she understood that by not denying the allegations under rule 34(e), she gave the court “authority to enter orders that would affect [her]. This could include orders for custody, visitation, child support, treatment requirements and parental rights.” The court informed Mother that if she “wanted more time” to ponder her decision, it would “be happy” to accommodate her. Mother assured the court that she was ready to proceed, and she invoked rule 34(e) with respect to the paragraphs of the petition that detailed the abuse and neglect suffered by the Children. The court then accepted Mother’s rule 34(e) admissions.
¶6 After a recess, the court reconvened. Mother and Trial Counsel immediately informed the court that there was an apparent conflict stemming from Trial Counsel’s representation of Mother’s former brother-in-law in a different case. Mother made a motion to withdraw her rule 34(e) admissions and set the matter for trial. The State opposed the motion. The guardian ad litem also opposed withdrawal, pointing out that by conducting an extensive “colloquy of rights,” the court ensured that Mother had made “a very knowing and voluntary admission to the facts.” Trial Counsel responded that Mother had realized, after talking to Trial Counsel during the recess, that the rule 34(e) plea would be taken “as an admission.” Trial Counsel also revealed that Mother had attempted to alert Trial Counsel to the potential conflict by writing a note to her during the hearing.
¶7 The court denied Mother’s oral motion to withdraw her plea, but it granted Mother leave to file a written motion to withdraw within thirty days, reasoning that Mother might determine that it was “okay” to accept the plea “after some more consideration as to what a [rule 34(e) plea] means.” However, the court noted that it was “very careful” during the colloquy to confirm that Mother knew what she was doing and was acting voluntarily. With regard to the conflict of interest, the court asked Trial Counsel, “Other than the technical relationship, was there anything in your representation that was awry or that you look back on and say well I may have advised her differently had I . . . known of the conflict . . . ?” Trial Counsel responded that her advice “would be the same,” pointing out that the conflict did not influence her because, at the time she rendered her advice, she did not know Mother and Mother’s ex-brother-in-law were, at one time, related. The court stated that even in the presence of the conflict, it did not observe anything “per se deficient in the way” Trial Counsel represented Mother. Mother agreed that there was nothing “specifically” wrong “in the way [Trial Counsel] represented” her in court but that she sought new counsel merely “because of the relationship that exists.” The court granted Trial Counsel’s motion to withdraw and appointed substitute counsel (Conflict Counsel), who entered an appearance for Mother approximately a month after the adjudication hearing.
¶8 About three weeks after the hearing, based on Mother’s rule 34(e) admissions, the juvenile court entered an adjudication order that deemed the allegations in the petition to be true and found the Children to be abused, neglected, and dependent. The court made no express finding that the Children had been harmed, but it did include in its written decision a detailed account of the incident in which Mother choked one of the Children by the shirt collar at a counseling session and stated that its findings of abuse, neglect, and dependency were based on, among other things, that incident. The court ordered that a Child and Family Service Plan (the Plan) be prepared for the family and each child, set a primary permanency goal of reunification, and ordered DCFS to provide reunification services to Mother. The court’s adjudication findings were used to generate the Plan, which required Mother to take those steps necessary to provide a home where the Children would be safe, nurtured, loved, and protected from any form of abuse or neglect. See Utah Code Ann. § 62A-4a-205(8)(d) (LexisNexis Supp. 2019) (“[C]hild and family plans shall address problems that . . . keep a child in placement . . . .”). The Plan also recommended that Mother continue to receive therapy, with a particular emphasis on developing parenting skills and developing a more positive view toward the Children. While the Plan addressed abuse in general terms, it did not mention any specific incident of abuse or set forth specific requirements to address the abuse.
¶9 Ultimately, Mother never filed a written motion to withdraw her rule 34(e) admissions. However, in the course of investigating the case, Conflict Counsel discovered allegedly exculpatory evidence that Mother now asserts demonstrates that she received ineffective assistance of counsel leading up to and during the adjudication hearing. Specifically, Conflict Counsel obtained a statement from the Children’s babysitter, various police reports, and footage from a police body camera that Mother asserts Trial Counsel “would have found had she investigated” and that would have “negated Mother’s most damning pleas” under rule 34(e). Mother appealed the court’s adjudication order and subsequently filed a motion under rule 23B of the Utah Rules of Appellate Procedure seeking remand to the juvenile court to consider her claim of ineffective assistance. This court denied that motion but instructed Mother to address the need for remand in her appellate brief in accordance with In re S.H., 2007 UT App 8, 155 P.3d 109.[3]
ISSUES AND STANDARDS OF REVIEW
¶10 Mother first asserts that the juvenile court erred when it failed to make an express finding of harm before it concluded that the facts to which Mother admitted in her rule 34(e) plea met the statutory requirements of abuse. Because Mother did not preserve this issue below, she seeks review under the plain error doctrine. To establish plain error, Mother must show that “(i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, our confidence in the verdict is undermined.” In re J.C., 2016 UT App 10, ¶ 12, 366 P.3d 867 (quotation simplified). “If any one of these requirements is not met, plain error is not established.” State v. Johnson, 2017 UT 76, ¶ 20, 416 P.3d 443 (quotation simplified).
¶11 Mother also asks this court to determine whether Trial Counsel rendered ineffective assistance when she advised Mother to enter rule 34(e) admissions without adequately investigating the facts of the abuse allegations. “An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law.” In re S.S., 2015 UT App 230, ¶ 20, 360 P.3d 16 (quotation simplified).
ANALYSIS
I. Error of the Juvenile Court
¶12 Mother first asserts that the juvenile court erred when it found that she had abused the Children without making a “subsidiary finding that the abuse had caused the [Children] harm.” To prevail on a claim of “plain error,” Mother “must establish that (i) an error exists; (ii) the error should have been obvious to the juvenile court; and (iii) the error is harmful.” See In re T.M., 2003 UT App 191, ¶ 26, 73 P.3d 959 (quotation simplified). Under the circumstances of this case, Mother cannot establish that the court erred in finding that Mother abused at least one of the Children and therefore cannot establish that the court would have ordered a different child and family service plan or reached different conclusions about the primary permanency goal even if it had not found that Mother abused the Children with household items and caused them harm.
¶13 The juvenile court found that the Children were “abused, neglected, and dependent” and, in its adjudication order, included reference to allegations that Mother punished the Children with “a fork, a belt, a stick, and other items” and that Mother collared one child and caused him to choke. Mother argues that simply stating that she punished the Children with objects and collared one child did not adequately support the court’s finding of abuse. Instead, she contends that the juvenile court was required to enter findings detailing the specific harm she caused the Children, given that the definition of “abuse” of a child under Utah law includes “nonaccidental harm” and “threatened harm.”[4] See Utah Code Ann. § 78A-6-105(1)(a)(i) (LexisNexis Supp. 2019). And “harm” includes “physical or developmental injury or damage.” Id. § 78A-6-105(28).
¶14 As support for her assertion that the juvenile court committed an obvious error, Mother cites In re K.T., 2017 UT 44, 424 P.3d 91, for the proposition that the court’s order was insufficient and should have contained detailed findings of what harm Mother’s actions caused the Children. Id. ¶ 9 (“To find abuse under Utah law, a court must find harm.”). But In re K.T. does not require a court to make a specific finding of harm, labeled as such. Rather, it “allow[s] the juvenile court to infer harm” based on the evidence presented. Id. ¶ 14. Here, the facts Mother admitted at the adjudication hearing, see Utah R. Juv. P. 34(e), were sufficient for the court to find that at least one of the Children was harmed by Mother’s abusive behavior: While at a family counseling center, a witness observed Mother grab one child by the shirt collar with such force as to “restrict[] his ability to breathe and cause[] him to choke” as she forced his face into a corner. Mother continued to restrain the child even when the child told Mother that she was “hurting him” and that “he was having difficulty breathing.” The “evidence of the effects” of Mother’s actions allowed the juvenile court “to conclude that the [child] had been harmed.” See In re K.T., 2017 UT 44, ¶ 14. The child informed Mother not only that she was hurting him but also that he was having trouble breathing and showing signs of choking. At the very least, we can infer a finding of harm from the juvenile court’s determination that Mother’s action “restricted [the child’s] ability to breathe and caused him to choke.” See Utah Code Ann. § 76-5-109(1)(f)(ii) (LexisNexis 2017) (“‘Serious physical injury’ includes . . . any impediment of the breathing or the circulation of blood by application of pressure to the neck, throat, or chest, or by the obstruction of the nose or mouth, that is likely to produce a loss of consciousness . . . .”); see also State v. Stettina, 635 P.2d 75, 78 (Utah 1981) (“[M]aking it difficult [for a victim] to breathe . . . could reasonably place [a] victim in apprehension of bodily harm.”).
¶15 Though Mother has submitted additional non-record evidence intended to challenge some of the other incidents of abuse described in the court’s written decision, Mother has not offered much of a defense against the shirt-collar incident. She asserts only that the witness who reported the incident did not have a clear view of the events because Mother’s body was between the witness and the child. But Mother has not alleged that the incident did not occur or that it did not result in the child choking.[5] Accordingly, the juvenile court had before it clear and convincing evidence that established that Mother abused one of the Children and that the abuse caused that child harm.
¶16 With regard to the other allegations of abuse involving Mother punishing the “Children with a fork, a belt, a stick, and other items,” however, the juvenile court did not infer, let alone articulate, a finding of harm related to any of those incidents. This lack of articulating a finding of harm is problematic. See In re K.T., 2017 UT 44, ¶ 15 (stating that a finding that a parent “hit a child with another object” did not necessarily include an inference of harm, because the strike could have been delivered “lightly so that it did not cause” harm).
¶17 But even if we assume the court’s findings of abuse with regard to the household items are incomplete, Mother cannot show that she was prejudiced by the court’s error, because we have determined that evidence of the shirt-collar incident, standing alone, fully supported the court’s abuse finding with regard to one of the Children, and on appeal Mother has not contested the court’s neglect and dependency determination with regard to any of the Children. In this case, Mother cannot show a reasonable likelihood of a different outcome at the adjudication hearing even if the juvenile court had not included the household abuse facts in the adjudication order at all or if it had determined that no abuse occurred during the household incidents. Even in that event, the Plan would have been the same, and the primary permanency goal entered by the court would still have been reunification. Accordingly, we cannot conclude that the juvenile court committed plain error, and we therefore affirm the court’s adjudication order.
II. Ineffective Assistance of Counsel
¶18 Mother also claims that Trial Counsel provided ineffective assistance in failing to conduct an adequate investigation into the facts of the abuse allegations against her. Specifically, Mother asserts that if Trial Counsel had investigated the State’s allegations of abuse more diligently, Trial Counsel would have discovered exculpatory evidence that would have refuted the allegations of abuse involving punishment using household items, including a hammer, fork, belt, and stick. Thus, Mother asserts that Trial Counsel performed deficiently in advising her to enter admissions pursuant to rule 34(e) of the Utah Rules of Juvenile Procedure without first undertaking a sufficient investigation to uncover this exculpatory evidence.
¶19 To prevail on an ineffective assistance of counsel claim, Mother must show that (1) “counsel’s performance was deficient” and (2) this “deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984); see also In re E.H., 880 P.2d 11, 13 (Utah Ct. App. 1994) (stating that parents are entitled to effective assistance of counsel in child welfare proceedings and adopting “the Strickland test to determine a claim for ineffective assistance of counsel in proceedings involving termination of parental rights”). “Because failure to establish either prong of the test is fatal to an ineffective assistance of counsel claim, we are free to address [Mother’s] claims under either prong.” See Honie v. State, 2014 UT 19, ¶ 31, 342 P.3d 182.
¶20 To show that Trial Counsel performed deficiently, Mother must overcome the strong presumption that Trial Counsel rendered adequate assistance by persuading the court that “considering all the circumstances, counsel’s acts or omissions were objectively unreasonable.” State v. Scott, 2020 UT 13, ¶ 36, 462 P.3d 350. In other words, Mother must show that her “counsel rendered a deficient performance in some demonstrable manner, and that counsel’s performance fell below an objective standard of reasonable professional judgment.” See State v. Martinez, 2020 UT App 69, ¶ 29, 464 P.3d 1170 (quotation simplified), petition for cert. filed, July 20, 2020 (No. 20200556).
¶21 To establish prejudice, Mother must “demonstrate a reasonable probability that the outcome of . . . her case would have been different absent counsel’s error. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding.” Scott, 2020 UT 13, ¶ 43 (quotation simplified).
¶22 Because the juvenile court’s adjudication findings regarding allegations of abuse involving punishment using household items have two distinct applications, our examination of Mother’s ineffective assistance claim is necessarily bifurcated with respect to the imminent use (namely, the court’s disposition and the formulation of the Plan) and prospective impact (namely, possible impact on this child welfare proceeding and in the future) of the court’s findings of abuse. Even if we assume that Trial Counsel performed deficiently in failing to fully investigate the facts supporting the allegations of abuse with household items, we are confident Mother was not prejudiced by the inclusion of those findings with regard to the development of and the requirements contained in the Plan. However, if Trial Counsel did fail to fully investigate the facts supporting the allegations of abuse and therefore performed deficiently in advising Mother to enter the rule 34(e) admissions, we are concerned that inclusion of those findings of abuse with household items in the adjudication order might prospectively prejudice Mother in her effort to successfully reunite with the Children in the future. Because this court does not consider new evidence on appeal, see Utah R. App. P. 11(a) (“The original papers and exhibits filed in the trial court . . . shall constitute the record on appeal in all cases.”), we must remand for an evidentiary hearing and direct the juvenile court to make factual findings regarding whether Trial Counsel performed deficiently by not fully investigating the allegations of abuse, and if so, whether Mother was prejudiced by following the advice of counsel to enter admissions rather than deny the allegations in the petition. We address the immediate and prospective application of the findings in turn.
A. Application of Disputed Facts to the Court’s Disposition and to the Plan
¶23 For the purpose of analyzing the effect of the juvenile court’s adjudication and disposition, we assume, without deciding, that Trial Counsel performed deficiently in failing to investigate, resulting in Mother’s rule 34(e) admissions and the court’s finding that Mother abused the Children with certain household objects. However, as discussed above, even if all the facts surrounding abuse involving household objects are excluded (i.e., all abuse allegations except the shirt-collar incident), Mother was not prejudiced by the court’s consideration of this evidence at the adjudication hearing, because the exclusion of these putative facts would not have changed the court’s reunification goal or changed the Plan itself. Although Mother concedes that there was a basis for the finding of neglect against her, she argues that if she “just had a neglect finding—based on the findings of an unclean home and inadequate lunches—[her] future with [the Children] would be much less precarious.”[6]
¶24 But Mother’s evaluation is unpersuasive in several respects because it looks primarily to the long-term effects of the inclusion of disputed facts—an issue we address below, see infra ¶¶ 28–32—and does not focus on whether the disputed facts had an impact on the court’s adjudication decision (for instance, on the court’s disposition or on the requirements of the Plan). And the juvenile court’s findings regarding the shirt-collar incident and other neglect which dictated the Plan’s requirements are well-supported. Our analysis of the Plan suggests that the disputed abuse facts had little to no impact on its provisions. The Plan primarily focuses on interventions necessary to assist Mother in acquiring parenting and life skills so that she will be able to provide an environment in which the Children can be safe, loved, nurtured, and protected. The Plan also focuses on the need for Mother to continue personal therapy and to resolve the pending legal issues she faces. Indeed, the Plan explicitly states that Mother does not appear to be “an inherently violent or antisocial individual.” Rather, the Plan characterizes her as lacking “the parenting skills needed to effectively manage [the Children’s] emotional and behavioral issues.”
¶25 Mother also downplays the finding of rather serious abuse related to the shirt-collar incident. Those provisions of the Plan that require Mother to provide an environment free from physical abuse could certainly have been necessitated by this incident alone. See Utah Code Ann. § 62A-4a-205(8)(h) (LexisNexis Supp. 2019) (“[A] child and family plan may only include requirements that . . . address findings made by the court . . . .”) As addressed above, Mother has not offered much of a defense against this abuse allegation other than asserting that the witness who reported the incident did not have a clear view of the incident because Mother’s body was between the witness and the child. Nowhere does Mother challenge that the incident occurred or that it resulted in the child choking. And because the finding of abuse related to the shirt-collar incident was considered in crafting the appropriate child and family service plan for this family to address the problems and needs of the whole family, Mother cannot show that the Plan would have differed or that the court would have entered a different disposition had the court’s adjudication order not contained findings regarding the other incidents of abuse.
¶26 Finally, the juvenile court rightly did not overlook that this family has had a history of DCFS involvement for nearly a decade. Four prior investigations were closed because DCFS was unable to locate the family. Two recent situations giving rise to DCFS intervention with this family were supported by administrative findings of non-supervision and emotional abuse involving two of the Children. The juvenile court was well aware of this history and recounted this involvement in the findings of its adjudication order.
¶27 In short, given the above circumstances, Mother was not prejudiced with respect to the immediate result of the adjudication as it pertains to the court’s disposition and to the development of the Plan.
B. Prospective Effects of the Disputed Facts
¶28 As to the continued impact of the adjudication order’s abuse findings involving household items, however, we determine that Mother may well be prejudiced if those disputed facts are considered in whether Mother successfully complies with the requirements of the Plan and on any prospective application of that information. That is, the findings of abuse in the adjudication order create a benchmark for everything that happens in this child welfare case, and they will form the basis for whether Mother is able to comply with the requirements of the Plan going forward and whether she can be reunited with the Children. Thus, those particular abuse findings will continue to follow her throughout the pendency of this case and in any future case.[7]
¶29 In the order denying her rule 23B motion, this court told Mother, “[N]othing in this order shall be construed as precluding [Mother] from addressing the need for remand or raising further argument under In re S.H., 2007 UT App 8, 155 P.3d 109, in [her] brief.” Pursuant to our direction, Mother attached extra-record evidence to her appellate brief suggesting that the Children’s reports of the abuse, especially with regard to the use of household items, may have been exaggerated, if not false.
¶30 In In re S.H., a mother raised a claim of ineffective assistance of counsel, arguing that her attorney stipulated to allegations without the mother being present and without her consent. 2007 UT App 8, ¶ 10. On learning of her attorney’s conduct, the mother challenged the unauthorized admissions by filing an affidavit detailing a claim of ineffective assistance of counsel in conjunction with her petition for appeal. Id. ¶ 15. This court reasoned that because the admissions stipulated by her attorney likely prejudiced the mother, remand was necessary. Id. ¶¶ 16–20. Because “the procedural rules for child welfare appeals clearly contemplate claims for ineffective assistance of counsel,” “we remand[ed] to the juvenile court for an evidentiary hearing and direct[ed] the juvenile court to make factual findings regarding [the mother’s] ineffective assistance of counsel claim.” Id. ¶ 16; see also Utah R. App. P. 55(b) (explaining that claims of ineffective assistance of counsel should be raised on appeal in juvenile cases).
¶31 Here, Mother contends that Trial Counsel “performed deficiently and unreasonably when she did not investigate the case.” To that end, Mother has attached extra-record evidence uncovered by Conflict Counsel to her appellate brief. This evidence includes (1) a statement from a babysitter that may exonerate Mother, (2) police reports from February 2019 in which all the Children but one denied abuse by Mother, and (3) a transcript of the conversation recorded by a police body camera at the time of Mother’s arrest that Mother contends shows the Children were removed from her care not for abuse but because a DCFS worker thought Mother was “psycho.” If this evidence proves credible and was reasonably available before Trial Counsel advised Mother to enter admissions to the alleged abuse involving household items, it could support a determination that Mother received ineffective assistance because such information might undermine the propriety of Trial Counsel’s advice that Mother not contest the factual findings presented by the State.
¶32 Because we do not consider extra-record evidence on appeal, “the juvenile court is in a far better position to evaluate the evidence than an appellate court.” In re K.B., 2017 UT App 210, ¶ 14, 407 P.3d 1084 (quotation simplified). We thus remand to the juvenile court to conduct the procedure outlined in In re S.H. to make a determination of whether deficient performance on the part of Trial Counsel induced Mother to enter the disputed admissions under rule 34(e). And “while we do not conclude that Mother’s counsel was ineffective, we note that should the juvenile court find that Mother’s counsel failed to” adequately investigate the case and wrongly advised Mother to enter a rule 34(e) plea to the petition rather than contest the allegations, then such failures may well require the juvenile court to issue a revised adjudication order as it pertains to the factual findings on the alleged abuse involving household items. See In re S.H., 2007 UT App 8, ¶ 17.
CONCLUSION
¶33 We conclude that Mother was not prejudiced by any error of the juvenile court in not entering specific findings of harm or any deficiency by Trial Counsel insofar as it concerns the court’s disposition and formulation of the Plan. However, because Mother may be prejudiced in her ability to comply with the Plan and because extra-record evidence indicates that Trial Counsel may have failed to adequately investigate the allegations in the petition, we remand to the juvenile court to conduct an evidentiary hearing regarding Mother’s allegations of ineffective assistance with regard to the findings of fact in the adjudication order related to abuse involving household items.
¶34 Affirmed in part and remanded.
HARRIS, Judge (concurring):
¶35 I concur in the lead opinion without reservation. I write separately to expand on the lead opinion’s observation, see supra note 3, that rule 23B of the Utah Rules of Appellate Procedure does not apply in child welfare cases, and to wonder aloud about the extent to which our opinion in In re S.H., 2007 UT App 8, 155 P.3d 109, is in conflict with the text of rule 1 of the Utah Rules of Appellate Procedure. That rule states, in no uncertain terms, that “Rules 9 and 23B do not apply” in child welfare proceedings. See Utah R. App. P. 1(f). Rule 23B, of course, is the rule that creates a procedure by which litigants can seek leave to submit extra-record material in support of an appellate claim of ineffective assistance of counsel. See State v. Litherland, 2000 UT 76, ¶¶ 13–14, 12 P.3d 92 (stating that rule 23B “was specifically designed to address” “the dilemma created by an inadequate record of counsel’s ineffectiveness”). On its face, the language of rule 1(f) makes plain that our appellate rules afford no mechanism, in child welfare cases, for appellate litigants to introduce extra-record evidence in support of claims that their trial counsel was ineffective; there is at least an implication that, under the rules, such litigants may use only record evidence to support those claims.[8]
¶36 Despite the language of rule 1(f), which was in effect at the time, see Utah R. App. P. 1(f) (2006), our opinion in In re S.H. went ahead and allowed a party to obtain a rule 23B-like remand so that the juvenile court could consider certain extra-record evidence, including an affidavit, that the litigant filed for the first time on appeal. See 2007 UT App 8, ¶¶ 15–16. We stated that, “[b]y not allowing [the litigant] to submit record evidence regarding her ineffective assistance of counsel claim, we would effectively deny [the litigant’s] right to raise that claim.” Id. ¶ 16. We did not explain our authority for taking action in apparent contravention of rule, and we did not set forth any parameters (such as the deadlines and procedures set out in the actual text of rule 23B) advising litigants about how to go about availing themselves of the newly-announced procedural mechanism.
¶37 Since In re S.H. was decided, we have treated that opinion as creating a procedural mechanism, akin to rule 23B but not exactly like rule 23B, that allows litigants in child welfare proceedings to submit extra-record evidence in support of appellate claims of ineffective assistance. Typical is the order we issued earlier in this case, denying Mother’s rule 23B motion (because the rule does not apply) but allowing her to do essentially the same thing rule 23B would have allowed her to do, if it applied, by advising her to proceed pursuant to In re S.H.
¶38 I take no issue with the majority’s application of In re S.H. in this case, because it is our precedent, and no party to this case has asked us to reexamine it. See State v. Legg, 2018 UT 12, ¶ 11, 417 P.3d 592 (“Stare decisis mandates that one panel of the court of appeals defer to the decision of a prior panel.”). But it certainly appears to me as though In re S.H. might merit reexamination in an appropriate case where, after full briefing and argument, we might analyze whether that case is in harmony with our rules of appellate procedure and, if not, whether there exists a valid basis—for instance, through inherent judicial power, as Judge Orme suggests, see infra ¶ 41—for our court to create such a mechanism on its own.
ORME, Judge (concurring):
¶39 I concur in the lead opinion. I write separately to offer a counterpoint to Judge Harris’s concurring opinion, in which he questions the basis on which we have remanded cases such as this one to vindicate a parent’s right to the effective assistance of counsel.
¶40 While it is true that In re S.H., 2007 UT App 8, 155 P.3d 109, does not elaborate on the basis for the authority by which we permitted a remand mechanism in child welfare cases, arguably at odds with rule 1(f) of the Utah Rules of Appellate Procedure,[9] I do not believe that this is problematic for two reasons—three if one includes the point made in footnote 9. First, parents involved in parental termination proceedings have an unquestioned right to the effective assistance of counsel, see In re E.H., 880 P.2d 11, 13 (Utah Ct. App. 1994), and it seems obvious that to actualize that right in some termination cases, a remand procedure not unlike rule 23B for criminal cases must exist. Otherwise, how could this important issue come before us in cases such as this one, where the record would not allow us to determine whether a parent received the effective assistance of counsel? Because there is a right to the effective assistance of counsel during a parental-rights-termination proceeding, there must be a procedure by which we can assess whether that right was violated when such a claim is asserted and substantiated but the critical information is not part of the record on appeal. Without such a procedure, this “important right would ring hollow in the halls of justice.” Swekel v. City of River Rouge, 119 F.3d 1259, 1262 (6th Cir. 1997). I suspect that this realization, rather than some oversight or laxity in advocacy, explains why neither the Attorney General nor the Office of Guardian ad Litem has, in this case or in any other in the thirteen years since this court issued In re S.H., seen fit to question it.[10]
¶41 Second, although our rules of appellate procedure do not explicitly allow us to remand a termination case to develop a record of counsel’s claimed ineffective assistance, this is not dispositive of our ability to do so. In my view, we can do so in the sound exercise of our inherent power.[11] See United States v. Calandra, 414 U.S. 338, 348 (1974) (describing the exclusionary rule as “a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect”). Thus, In re S.H. is best understood as an appropriate exercise of our inherent power to improvise such procedures as may be necessary to resolve important issues such as a parent’s constitutional right to the effective assistance of counsel, and in doing so we avoid burdening parents “with a catch-22 unique to claims of ineffectiveness of trial counsel,” when “counsel’s ineffectiveness may have caused, exacerbated, or contributed to the record deficiencies,” State v. Litherland, 2000 UT 76, ¶ 12, 12 P.3d 92, over which the affected parent had no control.
Utah Family Law, LC | divorceutah.com | 801-466-9277
————————————————————
[1] The record contains no identifying information about this witness or information that explains why the witness did not intervene during the encounter between Mother and the child.
[2] In addition to Mother, the two fathers of four of the Children were also involved in the mediation.
[3] Rule 23B (remand for findings necessary to adjudicate an ineffective assistance of counsel claim) does not apply in child welfare matters. See Utah R. App. P. 1(f) (stating that “Rules 9 and 23B do not apply” to child welfare proceedings). The concurring opinions of Judge Harris and Judge Orme address the remand procedure identified in In re S.H. as it intersects with the Utah Rules of Appellate Procedure. See infra ¶¶ 35–41.
[4] Utah law requires the juvenile court to conduct a disposition hearing “[i]f, at the adjudication hearing, the court finds, by clear and convincing evidence, that the allegations contained in the petition are true.” Utah Code Ann. § 78A-6-311(1) (LexisNexis 2018). As our supreme court stated in In re K.T., 2017 UT 44, 424 P.3d 91,
The clear and convincing standard demands the introduction of evidence that makes “the existence of the disputed facts . . . very highly probable.” [Applying this principle] to the case before the juvenile court, the State needed to present evidence that would allow the court to conclude that it was very highly probable that the children had been harmed.
Id. ¶ 9 n.3 (quotation simplified) (quoting Lovett v. Continental Bank & Trust Co., 286 P.2d 1065, 1067 (Utah 1955)).
[5] Mother asserts that the juvenile court could have considered the collaring incident “as reasonable discipline or appropriate physical restraint that is precluded from the abuse definition.” We find this argument unpersuasive. Restraining a young child in such a way as to choke him cannot be considered reasonable. See Utah Code Ann. § 76-5-109(1)(f)(ii) (LexisNexis 2017) (“‘Serious physical injury’ includes . . . any impediment of the breathing or the circulation of blood by application of pressure to the neck, throat, or chest, or by the obstruction of the nose or mouth, that is likely to produce a loss of consciousness . . . .”); id. § 76-2-401(2) (stating that the defense of justifiable conduct involving reasonable discipline of a minor “is not available if the offense charged involves causing . . . serious physical injury”).
[6] As noted above, Mother does not challenge the findings of neglect or dependency reached by the juvenile court in its adjudication.
[7] We agree with Mother that this case seems to present a situation analogous to an incorrect presentence investigation report (PSI) in the criminal context. A PSI can contain information about a criminal defendant’s family, education, health, criminal record, and employment history and will follow a defendant “through the justice system.” See State v. Irey, 2017 UT App 178, ¶ 5, 405 P.3d 876 (quotation simplified). Though incorrect information contained in a PSI will not necessarily require resentencing if not appropriately corrected, this court will often order limited remand to the district court to resolve any contested information contained in the PSI. See State v. Post, 2015 UT App 162, ¶ 11 n.7, 354 P.3d 810 (“Even where inaccuracies in a PSI do not affect a defendant’s sentence, it is necessary that the defendant’s objections be resolved on the record because the statements in a defendant’s PSI may be utilized in future settings, such as parole hearings.” (quotation simplified)).
[8] The drafters of rule 1(f) did not explain the rationale for making rule 23B inapplicable in child welfare proceedings, and—given that we must base our decisions on the text of the rule, and not on our own notions of what the drafters might have intended, see, e.g., Hughes Gen. Contractors, Inc. v. Utah Labor Comm’n, 2014 UT 3, ¶ 29, 322 P.3d 712 (stating that “the interpretive function for us is not to divine and implement the statutory purpose, broadly defined,” but instead is to “construe its language”)—their unstated rationale is not directly relevant anyway. But it does not take much imagination to envision a reason why the drafters might have wanted to limit child welfare litigants to record evidence in making claims for ineffective assistance: rule 23B remand proceedings often take quite a bit of time, and speed is often at a premium in child welfare cases. See In re K.C., 2015 UT 92, ¶ 27, 362 P.3d 1248 (stating that “[c]hildren have an interest in permanency and stability,” and that “[t]he expeditious resolution of a termination proceeding may well be of paramount importance”).
[9] I do not read as much into rule 1(f) of the Utah Rules of Appellate Procedure as Judge Harris does. As concerns rule 23B, it merely states the obvious. Rule 23B is, by its own terms, limited to criminal cases. See Utah R. App. P. 23B(a). Parental-rights-termination cases are not criminal cases. With or without rule 1(f), rule 23B would not apply to termination cases or any other civil proceeding.
[10] 10. It is important to note that before the adoption of rule 23B, when we were confronted with this issue in criminal cases and did not remand the case to have the record developed on the claimed ineffective assistance, we were quick to point out that a defendant had the ability to vindicate his or her right to the effective assistance of counsel through a post-conviction petition. See, e.g., State v. Cummins, 839 P.2d 848, 858–59 (Utah Ct. App. 1992) (“[W]hen the trial record is inadequate to permit a determination that defendant’s case has clearly been prejudiced by defense counsel’s deficient performance at trial, defendant is precluded from raising his ineffective assistance claim on appeal and must seek relief through post-conviction or habeas corpus proceedings.”); State v. Montes, 804 P.2d 543, 546 n.3 (Utah Ct. App. 1991) (“To the extent counsel’s failure to raise these issues might be taken as ineffective assistance, if [the defendant] pursues his claims on habeas corpus, that will be the appropriate time to develop an evidentiary record addressing these issues.”). See also State v. Litherland, 2000 UT 76, ¶ 13, 12 P.3d 92 (“In short, the dilemma of an inadequate record created a regime that tended to channel ineffectiveness claims into the habeas arena, where the defendant faced numerous burdens not present on direct appeal.”). But in the context of parental-rights-termination proceedings, there is no similar avenue, and if we did not have a mechanism to remand to develop the record on direct appeal, parents would have no meaningful remedy by which to vindicate their right to the effective assistance of counsel.
[11] Ultimately, I am not convinced that rule 23B was even necessary to give appellate courts the power in criminal cases to supplement the record on appeal to get to the bottom of a constitutionally based claim such as the ineffective assistance of counsel. In my view, rule 23B came into existence not because such a rule was strictly necessary to create that opportunity but to regularize and refine it by setting standards, deadlines, and procedures governing such remands. And as previously noted, there was not a compelling need for the appellate courts to exercise their inherent authority and improvise such a procedure in the criminal context before rule 23B came into existence because criminal defendants had the opportunity to pursue such claims and develop the necessary evidentiary record in a post-conviction proceeding. But there is no analogous avenue available to parents whose parental rights have been terminated.