JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES RYAN M. HARRIS and AMY J. OLIVER concurred.
MORTENSEN, Judge:
¶1 Houston Raefat Hararah was charged with assault for throwing a potted plant at his then-girlfriend. He waived his right to a preliminary hearing and proceeded to trial, following which he was convicted. He now contends that he was coerced into waiving his right to a preliminary hearing because the district court[1] stated, at various points in the proceedings, that it would not permit Hararah to accept any plea deal if he chose to have a preliminary hearing. But the record indicates that Hararah rejected the State’s “best offer” and independently decided to waive the preliminary hearing and proceed to trial, so we cannot agree that the court forced his waiver. Hararah also asserts that his defense counsel (Counsel[2]) provided ineffective assistance for not objecting to the court’s allegedly problematic statements, as well as for telling the jury, during opening statements at trial, that they would not hear that Hararah had punched the victim, when the victim went on to testify that he did so. We do not agree that his counsel performed deficiently in either respect, so we affirm.
BACKGROUND
¶2 After police responded to an argument between Hararah and his then-girlfriend, Hararah was charged with assault, with a domestic violence enhancement. The Information alleged that Hararah “threw a potted plant at his girlfriend[,] striking her in the face and causing a cut above her eye.” As a result, the district court issued a no-contact order against Hararah. At a hearing to review the no-contact order, held in July 2020, the following exchange took place between Hararah, the district court, and Counsel:
Counsel: Judge, do you want to keep [the next hearing] on the 28th? I think that at this point, I’ve discussed a plea with Mr. Hararah and it looks like we’re probably going to be setting it for a preliminary hearing.
District Court: Well, let’s go ahead and . . . take it on the 28th and see—Mr. Hararah, do you understand if you go to preliminary hearing, you’re going to trial on the original charges? I won’t allow a plea negotiation after that.
Hararah: Yes, Your Honor.
District Court: Okay. Well, you think long and hard on that and I’ll talk to you on the 28th. Thank you.
¶3 The minutes for the next hearing, held in August 2020, indicate that “[t]he defendant request[ed] a Preliminary Hearing” and that “the [c]ourt set[] this matter for Preliminary Hearing.”
¶4 In court on the date set for the preliminary hearing, in September 2020, Counsel said, “I’ve had a chance to speak with Mr. Hararah, [and] he’s willing to waive his right to a preliminary hearing and we can set the case for trial—for the next step.” Then the following exchange took place:
District Court: So you talked to [Counsel] about what a preliminary hearing is[,] right?
Hararah: Yes.
District Court: Okay. And you are, in fact, willing to waive your rights to a preliminary hearing and allow the matter to be bound over; is that correct?
Hararah: Yes.
District Court: Very good. I will go ahead and allow the waiver[;] I’ll bind the matter over. How long do you think you need to have discussions, [Counsel]?
Counsel: Your Honor, I think that the best offer has been made and Mr. Hararah has had a chance to discuss it, and I think we’re just going to need to figure out when we can get it on for a trial as soon as possible in front of a jury.
Later in the hearing, the district court added,
District Court:
[W]e will have a trial as soon as possible. And seeing as we did not go to prelim, we could still have discussions regarding, you know, some other outcome to the . . . litigation.
¶5 The case eventually went to trial, and during opening statements, Counsel said to the jury, “You will not hear any testimony about [Hararah] punching [the alleged victim] . . . . [Y]ou’ll hear . . . that the only item that he had to protect himself from [a] taser [the alleged victim held] was the plant that was on the floor. And he picked it up and he threw it so that he could get out . . . .”
¶6 But when the victim testified, she stated that Hararah had hit her through a pillow. She testified that the pair had been drinking and started arguing when “[a] verbal argument turned into a physical [one].” She said, “I had tried knocking over his drink. I knew the conversation wasn’t ending anywhere. He ended up on top of me hitting me.” She described how she tried to leave the room but “was hit in the face” with “a pillow and his fist.” She clarified that “he was punching [her] and hitting [her] through the pillow.”
¶7 Later in the trial and outside the presence of the jury, Counsel objected to “the uncharged misconduct that we’ve now heard about for the first time today, which is this witness . . . now saying that she was punched in the face by Mr. Hararah prior to the throwing of the plant.” Counsel asserted, “That is nowhere in the State’s discovery. It is not in the officer’s report, it isn’t anywhere in the body cam. And so what we are now entertaining is the fact that these jurors can . . . believe that the bruising on her face comes from those punches rather than from the plant.” Counsel explained why this was problematic: “We don’t have the ability to bring in a rebuttal expert to say, ‘Hey, do you think these bruis[es] came from punching or . . . from a plant?’ So, I maintain that [this] is prejudicial.” The trial court responded, “I’ve previously ruled during the course of the trial that I would allow the testimony as long as it was consecutive to the day . . . in question [and] I would allow testimony from . . . the witness about the arguing and the conduct that happened during that date in question.”
¶8 The State went on to call the deputy who had arrested Hararah. On cross-examination, he testified that “[t]he only assault [he] was aware of was the plant being thrown,” and he agreed that if the victim had “mentioned being punched in the face, [he] would have put that in [his] report.” In closing arguments, Counsel portrayed the victim as an unreliable witness based on the inconsistencies between her previous accounts of what happened and her trial testimony.
¶9 Ultimately, the jury found Hararah guilty of domestic violence-related assault. Hararah now appeals.
ISSUES AND STANDARDS OF REVIEW
¶10 Hararah presents two issues on appeal. First, he asserts that the district court erred “when it coerced [him] into waiving his right to a preliminary hearing by threatening to not allow him to accept a plea bargain from the State if he exercised his fundamental right to a preliminary hearing.” He argues that this error “violated Article I, Section 13 and Article V, Section 1 of the Utah Constitution; Utah Rules of Criminal Procedure 7(e) and 11(i); and our adversarial system of justice.” Hararah admits that this “issue was not preserved,” but he claims that “either the exceptional circumstances exception or the plain error exception applies here.”
¶11 Second, Hararah asserts that Counsel provided ineffective assistance in two respects: (1) by “fail[ing] to object to the district court coercing [Hararah] into waiving his fundamental right to a preliminary hearing” and (2) by telling the jury “during opening statements that the jury would not hear any testimony about the alleged victim being punched.” “When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and [the appellate court] must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law.” State v. Reid, 2018 UT App 146, ¶ 17, 427 P.3d 1261 (cleaned up), cert. denied, 432 P.3d 1225 (Utah 2018).
ANALYSIS
Preliminary Hearing Waiver
¶12 Hararah argues that the district court “violated [his] rights . . . when it—by threatening to prevent him from accepting a plea deal from the State—forced him to waive his right to a preliminary hearing.” Hararah acknowledges that he did not object or otherwise preserve this argument. He argues that either the plain error exception or the exceptional circumstances exception applies. But Hararah cannot prevail under either theory.
Plain Error
¶13 To show plain error, “a defendant must establish 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.” State v. Holgate, 2000 UT 74, ¶ 13, 10 P.3d 346 (cleaned up).
¶14 We first address Hararah’s argument that the district court erred by “coercing” or “forcing” him to waive his right to the preliminary hearing. Hararah takes issue with the district court’s statement made at the July 2020 hearing: “Mr. Hararah, do you understand if you go to preliminary hearing, you’re going to trial on the original charges? I won’t allow a plea negotiation after that.” The advisability of this comment[3] is immaterial here because the record indicates that Hararah chose to waive his right to a preliminary hearing for reasons unrelated to the district court’s statement. In other words, the record is clear that the court did not, in fact, force or coerce Hararah to waive the preliminary hearing because he made an independent choice to waive it.
¶15 At the outset of the September 2020 hearing, Counsel said, “I’ve had a chance to speak with Mr. Hararah, [and] he’s willing to waive his right to a preliminary hearing and we can set the case for trial—for the next step.” Critically, Counsel also said during that hearing that “the best offer has been made and Mr. Hararah has had a chance to discuss it, and I think we’re just going to need to figure out when we can get [the case set] for a trial as soon as possible in front of a jury.”
¶16 We make much of the fact that Hararah waived his preliminary hearing in the same hearing in which he expressed his rejection of the State’s “best” plea offer. This shows that Hararah’s waiver was not based on the possibility of future bargaining or a fear that he would not be able to accept a plea deal if he had a preliminary hearing. Counsel did not indicate that Hararah anticipated any plea bargain better than the one the State had offered—as the plea bargain offered was already the “best offer” possible; instead, Counsel represented that Hararah had considered the offer and had decided to proceed to trial rather than accept the offered bargain. And Counsel did not mention the idea that the preliminary hearing was being waived to keep open the prospect of a future plea deal.
¶17 Hararah fails to provide us with any evidence supporting a belief that his independent desire to proceed to trial—after rejecting the State’s “best offer”—was not what drove his decision to waive his right to a preliminary hearing. If Hararah had represented in any way that he was forgoing the preliminary hearing because he was planning to accept a plea deal or wanted to keep his options open, the case before us would be quite different. But instead, the record demonstrates that Hararah was forgoing the preliminary hearing after having fully considered and rejected the State’s best offer and with the goal of going to trial as soon as possible. Accordingly, Hararah has not shown that any error took place, because there is no indication that the district court’s comment had any effect on Hararah’s actions.
¶18 Similarly, the district court’s post-waiver statement that “seeing as we did not go to prelim, we could still have discussions regarding, you know, some other outcome to the . . . litigation” had no bearing on Hararah’s decision to waive his right to a preliminary hearing. At that point, Hararah had already made his decision to forgo the preliminary hearing, and he had also already rejected the State’s best plea offer.
¶19 Furthermore, even if we assume that the district court’s comments alone—rather than Hararah’s counterfactual claimed reliance on them—constituted error, Hararah has not met his burden on plain error review to show prejudice. The record shows that Hararah would have taken the same course of action whether or not the district court made the comments at issue. The same facts discussed above indicate that even if the statements had never been uttered, Hararah would have been presented with and rejected the State’s “best offer” and would have wanted to move as quickly as possible toward trial, including waiving his preliminary hearing. Accordingly, Hararah’s claim on this point fails.[4]
¶20 Moreover, even if “an error exist[ed]” that “should have been obvious to the [district] court,” Holgate, 2000 UT 74, ¶ 13 (cleaned up), any such error was cured by Hararah’s conviction by a jury, see State v. Aleh, 2015 UT App 195, ¶¶ 13–18, 357 P.3d 12, cert. denied, 366 P.3d 1213 (Utah 2016). In Aleh, a defendant “contend[ed] that the trial court erred in denying his motion to withdraw the waiver of his right to a preliminary hearing.” Id. ¶ 13. This court determined that because the “sole purpose” of a preliminary hearing is “determining whether probable cause exists,” “an error at the preliminary stage is cured if the defendant is later convicted beyond a reasonable doubt.” Id. ¶¶ 14–15 (cleaned up). And “[t]his is so even when the error consists of a complete deprivation of a preliminary hearing.” Id. ¶ 16.[5] “Because conviction beyond a reasonable doubt cures any flaw in a preliminary hearing—including the complete deprivation of a preliminary hearing—it necessarily cures any error the [district] court may have made in accepting a defendant’s waiver of the right to a preliminary hearing.” Id. ¶ 18.[6] “Accordingly, [Hararah’s] conviction of all charges beyond a reasonable doubt cured any possible error attending his waiver of a preliminary hearing.” See id.
¶21 Ultimately, Hararah’s argument of plain error fails.
Exceptional Circumstances Doctrine
¶22 We apply the exceptional circumstances doctrine “to reach an unpreserved issue where a rare procedural anomaly has either prevented an appellant from preserving an issue or excuses a failure to do so.” State v. Johnson, 2017 UT 76, ¶ 29, 416 P.3d 443 (cleaned up). Hararah argues that “[b]ecause it is procedurally uncommon in Utah to have a district court force a criminal defendant to waive his constitutional right to a preliminary hearing, a rare procedural anomaly occurred.”
¶23 But the claimed procedural anomaly did not actually occur. Hararah’s argument points to the presumed effect of the district court’s statements (namely, “forc[ing]” Hararah “to waive his constitutional right to a preliminary hearing”) rather than the mere occurrence of the statements as the “rare procedural anomaly.” But as we have explained, Hararah was not forced into waiving his right to a preliminary hearing, because he chose to waive that right for reasons independent from the district court’s comments. The absence of an actual “rare procedural anomaly” alone defeats Hararah’s argument as to the applicability of the exceptional circumstances doctrine, but this is not all.
¶24 Even if we assume that the district court’s statements constituted a “rare procedural anomaly,” Hararah would need to show that they “either prevented [him] from preserving an issue or excuse[d] a failure to do so.” See id. Hararah does not attempt to explain what prevented him from objecting to the district court’s statements and thereby preserving the issue. In reality, there was nothing preventing him from doing so. Hararah could have objected when the district court made the first statement at the July 2020 hearing. But this is not a case where a defendant had only one opportunity to object to an alleged error. Hararah could have taken time to review the issue and objected during the August 2020 hearing. Or he could have objected after the district court’s follow-up comment at the September 2020 hearing. Furthermore, before trial, Hararah could have filed a motion to withdraw his waiver. On this record, Hararah had time and multiple opportunities to object or preserve this issue, and he did not do so.
¶25 Moreover, we are not convinced that Hararah’s failure to preserve the issue is excusable. While we recognize the fundamental nature of the preliminary hearing and we protect defendants’ constitutional rights to preliminary hearings, we also recognize that a defendant has the constitutionally guaranteed right to waive the preliminary hearing. See Utah Const. art. I, § 13 (protecting the right to a preliminary hearing “unless the examination be waived by the accused with the consent of the State”); see also, e.g., Hafen v. State, 2011 UT App 85, ¶¶ 3–4, 249 P.3d 1006 (per curiam) (“[The defendant] filed his petition asserting that he was deprived of his preliminary hearing. . . . The petition was inconsistent with and [superseded] by [the defendant’s] waiver. [The defendant] was not deprived of any right to a preliminary hearing.” (cleaned up)). Waiving a preliminary hearing may have negative implications, but this reality does not invalidate a qualifying waiver. See State v. Bragg, 2013 UT App 282, ¶ 40, 317 P.3d 452 (“[The defendant] waived his right to a preliminary hearing, [forgoing] one opportunity to explore the exact nature of the charges against him and resolve any confusion about what those charges entailed.”). While Hararah may, in retrospect, have benefitted from taking the opportunity to develop the victim’s testimony at the preliminary hearing, this does not invalidate his waiver. And his regrets do not excuse his failure to preserve this issue. Therefore, the exceptional circumstances doctrine does not apply.
Ineffective Assistance
¶26 Hararah also asserts that Counsel provided ineffective assistance by failing to object to the district court’s comments discussed above and by informing the jury in opening statements that it would not hear that Hararah had punched the victim.
¶27 “To prevail on a claim of ineffective assistance of counsel, [a defendant] must demonstrate that (1) [the defendant’s] counsel’s performance was deficient in that it fell below an objective standard of reasonableness and (2) the deficient performance prejudiced the defense.” State v. Streeper, 2022 UT App 147, ¶ 34, 523 P.3d 710 (cleaned up), cert. denied, 527 P.3d 1106 (Utah 2023); see also Strickland v. Washington, 466 U.S. 668, 687 (1984). The first prong of this test “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. “[T]he defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Id. at 688.
¶28 The second prong “requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. “When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695. “Because failure to establish either prong of the test is fatal to an ineffective assistance of counsel claim, we are free to address [a defendant’s] claims under either prong.” Honie v. State, 2014 UT 19, ¶ 31, 342 P.3d 182.
¶29 We can easily dismiss Hararah’s first assertion of ineffective assistance. As discussed above, Hararah did not provide any evidence that he intended to accept a plea deal and that he based his waiver of the right to a preliminary hearing on such a plan.[7] Counsel was aware of Hararah’s feelings toward the choice between pleading or going to trial and stated repeatedly that Hararah was not interested in pleading guilty or accepting a plea bargain. Accordingly, Hararah has not persuaded us that any comments from the district court related to plea negotiations would have affected his plans at all, so Counsel acted reasonably in choosing not to object to such comments. In other words, the district court’s comments bore no impact on Hararah’s actions, so there was no tactical reason for Counsel to act as Hararah retroactively desires. “In evaluating trial counsel’s performance, we give trial counsel wide latitude in making tactical decisions and will not question such decisions unless there is no reasonable basis supporting them.” State v. Liti, 2015 UT App 186, ¶ 18, 355 P.3d 1078 (cleaned up). Here Counsel acted in line with Hararah’s clear desire to proceed toward trial.
¶30 Additionally, for the same reasons described above, we are convinced that Hararah was not prejudiced by this alleged deficiency in performance. Hararah asserts that “[t]here is a reasonable likelihood that if [he] had been allowed to exercise his right to a preliminary hearing,” his case would have ended differently. But Hararah was able to exercise his right to a preliminary hearing. We have already explained why the district court’s alleged carrot—permitting Hararah the possibility of accepting a plea deal—was no carrot at all based on his express refusal of the State’s “best offer” and his desire to proceed to trial. Hararah’s claim might have some foundation if he had proceeded with a preliminary hearing and the court had, in fact, restricted his ability to negotiate a plea deal or even if he had accepted a plea bargain after waiving the preliminary hearing. But given that he clearly and consistently conveyed his desire to go to trial, that he was offered the “best” plea deal and refused it, and that his conviction by a jury at trial was in no way influenced by the district court’s earlier comments on waiving the preliminary hearing, we are not persuaded that the outcome would have been any different if Counsel had objected. See Strickland, 466 U.S. at 695. Therefore, Hararah cannot show ineffective assistance on this point.
¶31 Hararah’s second allegation of ineffective assistance is also unavailing. Hararah asserts that Counsel performed deficiently by saying in opening statements that the jury would “not hear any testimony about [Hararah] punching [the alleged victim],” when the victim went on to testify that Hararah had, in fact, hit her through a pillow. Hararah argues that Counsel should not have made such a promise without first “lock[ing] in” the victim’s testimony during a preliminary hearing. But, as discussed above, Hararah waived the preliminary hearing of his own free will. And it is clear that neither side was aware the victim would testify that Hararah hit her, because the deputy testified that he did not know of any assault other than Hararah throwing the plant. Accordingly, we do not fault Counsel for making a statement in line with all the known facts, and we conclude that Counsel’s actions are not nearly “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687.
¶32 Furthermore, Hararah was not prejudiced by this allegedly deficient performance. Counsel was able to paint the victim as an unreliable witness based on the inconsistencies between her previous accounts of what happened and her trial testimony. And Counsel elicited testimony from the State’s own witness that there were no allegations of punching prior to trial. Accordingly, Hararah was in a strong position to counter the State’s case, and the jury still found him guilty of assault. From this, we see no support for “a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695.
CONCLUSION
¶33 Hararah’s claim that the district court coerced him into waiving his preliminary hearing is not supported by the record, so the exceptional circumstances doctrine does not apply and the court also did not plainly err. Additionally, Hararah’s assertion of ineffective assistance of counsel fails. Therefore, we affirm Hararah’s conviction.
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.
STATE OF UTAH, IN THE INTEREST OF A.H. AND N.H., PERSONS UNDER EIGHTEEN YEARS OF AGE.
K.H., Appellant, v. STATE OF UTAH, Appellee.
Opinion
No. 20190846-CA
Filed May 28, 2021
Third District Juvenile Court, Salt Lake Department
The Honorable Mark W. May
No. 1148287
Colleen K. Coebergh, Attorney for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Attorneys for Appellee
Martha Pierce and Dixie Jackson, Guardians ad Litem
JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES DAVID N. MORTENSEN and DIANA HAGEN concurred.
POHLMAN, Judge:
¶1K.H. (Father) appeals the juvenile court’s termination of his parental rights as to A.H. and N.H., raising three arguments. First, Father contends that he was denied his right to effective assistance of counsel. Second, he contends that the juvenile court erred in finding that the Division of Child and Family Services (DCFS) provided reasonable efforts toward reunification. Third, he contends that the juvenile court’s reasoning and reliance on the ground of unfitness in terminating his rights was flawed. We affirm.
BACKGROUND1
¶2Father and R.R. (Mother) have three young children together: four-year-old A.H., two-year-old N.H., and an infant, Am.H., who was born during the course of these proceedings. This appeal concerns only Father’s parental rights as to the older children, A.H. and N.H. (collectively, the Children). Mother’s parental rights are not at issue in this appeal, and we mention her only when relevant and necessary for context.
The Initial Verified Child Welfare Petition
¶3Father and Mother’s relationship was “off and on, volatile and abusive.” After reports of drug use in the home and an incident of domestic violence in August 2017, the Children were taken into protective custody and placed with foster parents. Soon afterward, the juvenile court ordered Mother and Father not to have contact with each other. In October 2017, the court held Father’s adjudication hearing and disposition hearing on the same day. The court concluded that Father neglected the Children, that they should remain in the custody of DCFS, and that the primary goal for the Children was reunification with their parents with a secondary goal of adoption.
¶4After this hearing, the court also entered findings of fact, including findings about the August 2017 domestic violence incident. Specifically, the court found that Father arrived at the home to find Mother doing drugs. Mother then pulled a knife on Father, and Father twisted her arm to get the knife away before leaving. The Children were present during the incident and were frightened.2
¶5At the disposition hearing, the juvenile court also addressed the reunification service plan with regard to Father. At that time, a separate plan had not yet been created for Father, but it was explained to him that the requirements of Mother’s plan also applied to him. Father confirmed that he had “gone over all the requirements of the service plan,” and the court found that Father understood them.
The Period of Reunification Services
¶6Beginning in October 2017, a separate service plan created just for Father required, among other things, Father to submit to random drug testing, complete a substance abuse evaluation and a domestic violence assessment, complete a parenting class, participate in weekly supervised visitation with the Children, provide financially for the Children, and maintain a stable and healthy living environment for them. By the December 2017 review hearing, Father had completed the domestic violence assessment but had not called in to drug test. At the next review hearing in February 2018—six months after the Children were removed—Father had attended domestic violence treatment, but he had failed to take all the requested drug tests, had tested positive for THC3 on some drug tests, and had not attended drug treatment. Although at both hearings DCFS and the guardian ad litem (the GAL) asked to schedule a permanency hearing based on Father’s and Mother’s failure to fully engage in services, the juvenile court denied those requests.
¶7By the final review hearing in May 2018—nine months after removal—Father was taking domestic violence classes and had been more consistent in calling in to determine whether he should submit to a drug test. But he was still missing some calls and tests and was still testing positive for THC. Additionally, Father had been verbally aggressive with a DCFS caseworker after a visit had to be canceled because he arrived too late. As a result, the court ordered Father to participate in anger management classes.
¶8The court held a permanency hearing in August 2018— twelve months after removal. At this point, Mother was making progress and had the Children in a trial home placement. For his part, Father was also doing well, and he had begun attending drug and alcohol treatment, domestic violence treatment, and anger management classes. By the parties’ agreement, the court found that there had been substantial compliance with the treatment plan, reunification was likely within ninety days, and continued services were in the Children’s best interests. Thus, the court extended reunification services for another three months.
¶9In November 2018—fifteen months after removal—the juvenile court held a second permanency hearing, during which it considered the GAL’s motion to terminate the trial home placement and reunification services. Things had “not gone well” for Mother; she had a positive drug test, missed taking the Children to doctor appointments, and had been kicked out of her in-patient treatment center. Father had “done better”; he had completed his substance abuse treatment and was close to finishing his domestic violence classes. But he had missed call-ins for his drug tests until mid-September 2018 and had not completed a psychological exam. Although DCFS discussed placing the Children with Father, he was “decidedly non-committal” and refused to allow DCFS to inspect his home. When asked who would watch the Children while he worked, he answered, “I’ve never thought about it, I don’t know.” And although he was asked in October 2018 to create a plan for how he would handle daycare, work, and medical appointments, he still had not submitted a plan before the second permanency hearing. The Children were returned to foster care, while DCFS, Mother, and Father asked for reunification services to be extended again. But the juvenile court found that even though there had been “substantial progress by both parents, there was not clear and convincing evidence that reunification was probable within 90 days.” Accordingly, the court terminated reunification services and changed the Children’s permanency goal to adoption.
¶10 Shortly afterward, Mother and Father’s newborn, Am.H., was placed in DCFS custody in a separate child welfare case. Even though reunification services were terminated with respect to A.H. and N.H., nearly the same services were ordered and in place for Am.H.’s case.
The Petition to Terminate Parental Rights and the Termination Trial
¶11 DCFS petitioned to terminate Mother’s and Father’s parental rights as to A.H. and N.H. Father then changed attorneys, and Father’s new counsel represented him during the ten-day trial before the juvenile court.
¶12 To his credit, Father continued to improve and “largely rehabilitated himself” in the time between the second permanency hearing and trial. Nevertheless, the juvenile court found that Father’s “lackadaisical approach to services and the length of time that it took him to achieve substantial rehabilitation [had a] destructive effect [on] his parent/child relationship,” and the court ultimately terminated Father’s parental rights as to the Children.
¶13 After trial, the juvenile court issued a seventy-nine-page written decision and made extensive findings regarding Father’s efforts and reunification services. Regarding drug testing, the court found that Father tested positive ten times for THC, repeatedly failed to call in to determine if he should test, and provided excuses about his failures to call in that were not credible. Even when the caseworker and the court “constantly reminded” him to submit to drug tests, Father “purposely refused.” Instead, Father decided “to test only when he wanted,” which effectively “deprived the Court of the ability to determine if he was using drugs other than marijuana” because, in the court’s experience, sophisticated drug users know how to time drug tests so that the tests “only reveal[] marijuana use but not other substances.” The court found that Father’s first clean drug test was nine months after the Children’s removal and that Father did not consistently call in to be tested until mid-September 2018. Thus, by the second permanency hearing, Father had complied with this aspect of the service plan for only two months. The court noted, however, that he had been clean since services were terminated. As for the required substance abuse evaluation, the court found that Father completed that portion of the service plan.
¶14 Father had mixed results on other requirements in the service plan. He had not finished the domestic violence assessment before the second permanency hearing but did finish before trial. Regarding the anger management classes, Father completed that requirement of the service plan, yet he “continue[d] to have outbursts after he completed treatment.” Concerning the psychological evaluation, Father had not completed it before the second permanency hearing.4 Father managed to do so before trial, but it was unknown whether Father had participated in the recommended therapy.
¶15 As for the required parenting class, Father completed it, but “it did not have the desired effect.” He was “not able to sufficiently improve his parenting abilities in relation to” A.H. and N.H., and he was not in compliance with this requirement by the second permanency hearing in November 2018.
¶16 One month earlier, in October 2018, Father began Parent Child Connections Interactive Therapy (PCCIT), which is designed to “support the development of healthier child-parent interactions and improve attachment patterns overall.” During PCCIT, Father acknowledged that he “felt like he did not have a lot of skills to handle [A.H.],” who has disabilities. A PCCIT therapist also observed that Father “did not have a close relationship with [N.H.].” Overall, Father attended five PCCIT sessions. A PCCIT therapist observed that N.H. showed “fear and hesitation towards” Father and that although in later sessions N.H. started going to Father earlier in the session, “her reunions with [Father] still highlight[ed] significant anxiety.” The therapist also observed that Father “had to work to set limits with [A.H.] and often tends to just give [A.H.] what he wants and allows him to be aggressive” but that Father had improved in the last two sessions. The PCCIT sessions stopped in November 2018 because the court ended reunification services and changed the Children’s goal to adoption. Even though Father wanted to continue PCCIT and pay for it himself, the court denied that request because it was inconsistent with the goal of adoption. And although PCCIT could have been started earlier, a PCCIT therapist testified at trial that even if Father “had been given the full amount of time to complete PCCIT[,] she did not think therapy would have been successful because [Father] made minimal progress in the time he had.”
¶17With one exception, Father regularly attended his weekly supervised visits with the Children. The visits were “troubling,” however, because Father persisted in bringing toys and food even when asked not to do so. The toys and food interfered with creating a “normal” setting for the evaluators to observe the parent/child interaction and led the Children to view Father “as a party dad or a type of Santa—one who comes with toys and gifts.” While Father complied with the requirement to attend visits, he showed a “lack of progress” and never “progressed to unsupervised visits.”
¶18In terms of the requirement to provide financially for the Children, the court found that Father had “paid nothing in child support” since the court became involved in the matter and that he owed a total of $11,841.75 in back payments. At the same time, Father testified that he had $7,000 in savings and owned his mortgaged home. The court further found that Father works three jobs and had the ability to pay child support. Father told the court that he would pay child support if the Children were returned to him, but the court found that this statement showed that Father “fundamentally misunderstands the concept of child support.” Because Father “has purposely avoided his obligation,” the court found that Father did not comply with this portion of the service plan “at any time.”
¶19 As for Father’s housing situation, the court found that at the time of the second permanency hearing, Father “did not have a stable and healthy living environment for his Children.” Multiple times, Father “purposely refused” to allow DCFS to inspect his home until after services were terminated. By the end of December 2018, however, his home was deemed suitable for children.
¶20 At trial, Father testified that he contacted the Office of Child Protection Ombudsman (the Ombudsman) in December 2018 to express concerns over how DCFS had handled his case. The Ombudsman issued a letter in which it “largely validated [Father’s] concerns,” and in his defense, Father presented the Ombudsman’s opinion to support his position that DCFS did not provide reasonable services to him. But the court found that the Ombudsman did not speak with Father’s caseworkers and supervisors and did not review all the relevant documentation. The court thus had “serious concerns about the quality of the investigation done by [the Ombudsman].” In written detail, the court discredited much of the Ombudsman’s opinion, finding instead that DCFS provided adequate support to Father.
¶21Notably, in rejecting the Ombudsman’s opinion, the court found that Father “did not take reunification services seriously for nearly a year.” According to the court, Father “knew what was expected” of him, yet he “showed little interest in reunification until he realized too late that [Mother] was not going to have the [C]hildren returned to her.” Indeed, “[c]ajoling by the caseworker at visits and by the Court at review hearings appeared to have little effect.” And even when DCFS “made a push to return” the Children to Father in the fall of 2018, Father “showed little interest” in reunification. The court further found that “[b]y his own fault, not [DCFS’s], [Father] chose to rely on [Mother] to get the [C]hildren back,” and thus he “just took a lackadaisical approach to completing services on time” and “did not seriously engage in services in a timely fashion.” Ultimately, the court found that DCFS “made a fair and honest attempt to provide services to [Father] and the services provided to [Father] were reasonable.”
¶22 The juvenile court recognized that while Father had “limited general parenting skills with young children,” he was “doing better”; he had “a steady job, an appropriate home and is drug free.” In fact, by the end of trial, Father had the infant, Am.H., in a trial home placement. The court saw that Father was “developing further skills at managing and appropriately responding to his children.” Yet the court observed that “providing daily care of three young children would be a significant challenge,” especially considering A.H.’s disabilities. When Father was given special training on how to deal with A.H., he “did not seem to learn or progress in his understanding.” The Children did not have an attachment to Father, and even though Father had some positive interactions with the Children, those interactions were “more about drinking, eating, and playing with toys,” not “a need by the children for affection or connection (physical or emotional) with” Father.
¶23 Significantly, with respect to N.H., the court found that during the time it took Father to improve himself, “the parent-child relationship was severely damaged.” N.H. was never in Father’s custody before she was removed, and thus “no parent/child relationship ever existed” between them. Further, the court found that no relationship between Father and N.H. “developed over the course of the case” and that N.H. “has never viewed [Father] as a caregiver or parent and she is apprehensive in his presence.” The court concluded that Father’s present parenting ability did not help him with regard to N.H. and his “lackadaisical approach to services deprived him of the opportunity to form a meaningful parent/child bond” with N.H.
¶24 With respect to A.H., the court found that while Father and A.H. had a parent/child relationship before A.H.’s removal, “that relationship has drastically changed” in the two years since then. For example, A.H. was excited to see Father at visits but his excitement was “more about drinking, eating, and playing,” and when the visits ended, A.H. did not initiate hugs with Father or whine for Father not to leave. Instead, A.H. would run to his foster parents. The court found that A.H.’s relationship with his foster parents “has transformed into the only meaningful attachment relationship that he has” and that removing A.H. from them would present “a danger of [A.H.] suffering from Reactive Attachment Disorder.” The court concluded that the duration of A.H.’s removal and the length of time that “it took [Father] to substantially rehabilitate himself had a significant destructive effect on their parent/child relationship”; thus, Father’s “present parenting ability [did] not overcome the destructive effects of his past actions/inactions.”
¶25 Additionally, the court made findings about Mother and Father’s relationship, which it viewed as “concerning” and “troubling.” The court found that Mother and Father “largely ignored” the court’s no-contact order, and Father stated in April 2019 that they were living together. It also noted that while Mother and Father tried at trial “to downplay the amount of domestic violence that had occurred between them,” they were “quite upfront” in evaluations “about the significant role domestic violence had played in their relationship.” It further found that Father “has problems setting boundaries with [Mother],” that he had “chosen to remain” with Mother, and that “[a]s a couple they cannot properly raise [the Children].” The court noted that it had returned custody of Am.H. to Father, not Mother, and that if Father “reunites” with Mother, Am.H.’s “custody situation could change.”
¶26 In conclusion, the juvenile court found five grounds for terminating Father’s parental rights as to A.H. and N.H. See Utah Code Ann. § 78A-6-507(1)(b)–(f) (LexisNexis 2018).5 The court also found that terminating Father’s parental rights was in the Children’s best interests. See id. § 78A-6-503(12). It added that termination “would also prevent the substantial likelihood of continued neglect if the [C]hildren were returned to the parents.” It also found that the Children “view the foster parents as their caretakers and providers,” not Father and Mother, and that the foster parents are “ready and willing to adopt” the Children. Furthermore, the court found that terminating Father’s parental rights was “strictly necessary” and in the Children’s best interests so that their foster parents could adopt them. See id. § 78A-6-507(1).
¶27 Accordingly, the juvenile court entered an order terminating Father’s parental rights as to A.H. and N.H.6 Father appeals.
ISSUES AND STANDARDS OF REVIEW
¶28 Now represented by different counsel on appeal, Father raises three main issues. First, Father asserts that his trial counsel rendered constitutionally ineffective assistance in various ways. “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 (cleaned up).
¶29 Second, Father asserts that the juvenile court erred in finding that DCFS provided reasonable efforts toward reunification. “A court’s determination that DCFS made reasonable efforts to provide reunification services involves an application of statutory law to the facts that presents a mixed question of fact and law, requiring review of the juvenile court’s factual findings for clear error and its conclusions of law for correctness, affording the court some discretion in applying the law to the facts.” In re N.K., 2020 UT App 26, ¶ 15, 461 P.3d 1116 (cleaned up).
¶30 Third, Father asserts that the juvenile court erred in terminating his parental rights on the ground of unfitness. “The ultimate conclusion that a parent is unfit or that other grounds for termination have been established is a legal question, but such decisions rely heavily on the juvenile court’s assessment and weighing of the facts in any given case.” In re J.M., 2020 UT App 52, ¶ 22, 463 P.3d 66 (cleaned up). We thus “afford a high degree of deference to a juvenile court’s decision with regard to the existence of statutory grounds, and overturn it only when the result is against the clear weight of the evidence or leaves us with a firm and definite conviction that a mistake has been made.” Id. (cleaned up). Further, “when a foundation for the juvenile court’s decision exists in the evidence, an appellate court may not engage in a reweighing of the evidence.” Id. (cleaned up).
ANALYSIS
¶31To terminate parental rights, the juvenile court must make two separate findings by clear and convincing evidence. See In re B.T.B., 2020 UT 60, ¶ 46, 472 P.3d 827; see also Utah Code Ann. § 78A-6-506(3) (LexisNexis 2018); In re C.Z., 2021 UT App 28, ¶¶ 17–18, 484 P.3d 431. “First, it must find grounds for termination under Utah Code section 78A-6-507.” In re B.T.B., 2020 UT 60, ¶ 46 (cleaned up). Clear and convincing evidence establishing “any one” of the enumerated statutory grounds for termination is sufficient to fulfill the first finding for termination. See Utah Code Ann. § 78A-6-507(1) (LexisNexis 2018); see also In re J.M., 2020 UT App 52, ¶ 30, 463 P.3d 66; In re F.C. III, 2003 UT App 397, ¶ 6, 81 P.3d 790. Second, the court “must find that termination of the parent’s rights is in the best interests of the child.” In re B.T.B., 2020 UT 60, ¶ 46 (cleaned up); see also Utah Code Ann. § 78A-6-503(12) (LexisNexis 2018). As part of the best-interests inquiry, “a court must specifically address whether termination is strictly necessary to promote the child’s welfare and best interest.” In re B.T.B., 2020 UT 60, ¶ 76; see also Utah Code Ann. § 78A-6-507(1). Additionally, when “the court has directed [DCFS] to provide reunification services to a parent, the court must find that [DCFS] made reasonable efforts to provide those services before the court may terminate the parent’s rights.” Utah Code Ann. § 78A-6-507(3)(a).
¶32 The juvenile court in this case found five separate grounds to terminate Father’s parental rights: (1) “the parent has neglected . . . the child,” id. § 78A-6-507(1)(b); (2) “the parent is unfit or incompetent,” id. § 78A-6-507(1)(c); (3) “the child is being cared for in an out-of-home placement under the supervision of the court or [DCFS] . . . [and] the parent has substantially neglected, wilfully refused, or has been unable or unwilling to remedy the circumstances that cause the child to be in an out-of-home placement; and . . . there is a substantial likelihood that the parent will not be capable of exercising proper and effective parental care in the near future,” id. § 78A-6-507(1)(d); (4) “failure of parental adjustment,” id. § 78A-6-507(1)(e), which means that the parent has been “unable or unwilling within a reasonable time to substantially correct the circumstances, conduct, or conditions that led to placement of their child outside of their home, notwithstanding reasonable and appropriate efforts made by [DCFS] to return the child to that home,” id. § 78A-6-502(2); and (5) “only token efforts have been made by the parent . . . to support . . . the child,” id. § 78A-6-507(1)(f). The juvenile court also found that terminating Father’s parental rights was strictly necessary and in the Children’s best interests. Father does not challenge the court’s decision regarding the Children’s best interests.
¶33We now turn to Father’s arguments regarding ineffective assistance of counsel, reasonable efforts at reunification, and grounds for termination.
Ineffective Assistance
¶34 Father first contends that his trial counsel provided ineffective assistance in four respects. First, he argues that trial counsel misunderstood that the initial adjudication was not being relitigated at trial and thus employed a flawed trial strategy aimed at the domestic violence incident underlying the initial adjudication. See supra ¶¶ 3–4. Second, Father argues that trial counsel “devoted a significant portion of the trial” urging the juvenile court to rely on the Ombudsman’s opinion, which was ultimately discredited. Third, Father argues that trial counsel misunderstood or was unaware of the applicable law, process, and court rules, including the burden of proof, and he further claims that trial counsel erroneously believed proving a justification for the domestic violence incident would mitigate the harm to the Children. Fourth, Father argues that trial counsel introduced or emphasized harmful evidence, including that Father had $7,000 in savings and had paid his own attorney fees and that Father had physically disciplined his older child several years earlier.
¶35 “To prevail on an ineffective assistance of counsel claim, [Father] must show that (1) ‘counsel’s performance was deficient’ and (2) this ‘deficient performance prejudiced the defense.’” See In re C.M.R., 2020 UT App 114, ¶ 19, 473 P.3d 184 (quoting 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 [Strickland] test is fatal to an ineffective assistance of counsel claim, we are free to address [Father’s] claims under either prong.” See In re C.M.R., 2020 UT App 114, ¶ 19 (cleaned up).
¶36Father has identified some questionable decisions on trial counsel’s part. But even if trial counsel did perform deficiently, we resolve Father’s ineffective assistance claims on the prejudice prong.
¶37 To establish prejudice, Father “must ‘demonstrate a reasonable probability that the outcome of [his] 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.’” See id. ¶ 21 (quoting State v. Scott, 2020 UT 13, ¶ 43, 462 P.3d 350). In evaluating the likelihood of a different result, we “consider the totality of the evidence before the judge,” bearing in mind that “[s]ome errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect.” Strickland, 466 U.S. at 695–96.
¶38 Father has not carried his burden of demonstrating prejudice. “To establish ineffective assistance of counsel in parental rights termination proceedings, it is imperative that a parent demonstrate deficient performance and prejudice for each ground justifying termination.” In re B.H., 2003 UT App 160U, para. 4. Thus, because the juvenile court found five statutory grounds warranting the termination of Father’s parental rights, Father must explain why the court’s finding on each ground likely would have been different but for trial counsel’s alleged deficient performance. See Utah Code Ann. § 78A-6-507(1) (LexisNexis 2018) (stating that the court may terminate parental rights upon finding “any one” ground for termination). He has not even attempted to do so.
¶39Instead, Father generally asserts that trial counsel’s tactics “detracted from the fact that [Father] had done everything necessary to cure the domestic violence situation found in the initial adjudication” and that trial counsel “set the stage” for the court to believe Father “doesn’t get it,” because the defense cast blame on Mother for the domestic violence incident. (Cleaned up.) But the juvenile court acknowledged that Father “spent a lot of time presenting evidence” of his continued work on services up to the time of trial, and the court gave Father credit for his progress, finding that he had “largely rehabilitated himself” by the time of trial. And apart from trial counsel’s arguments, the court had other evidence that Father did not progress in important ways. For example, the court found “the initial parenting class was not successful, even according to [Father],” and Father’s visits with the Children never progressed to unsupervised visits. What’s more, the court found that Father did not seriously engage in services in a timely manner. Father’s delay was especially problematic in this case because it had a significant destructive effect on his parent-child relationship with A.H. and prevented him from developing any parent-child relationship with N.H.
¶40 Referring to the approximately twelve-month timeframe after a child’s removal during which a parent must show progress in changing the conduct or condition that required the removal, the court explained the importance of “removing the child from the legal limbo of State custody as soon as possible so as to provide that child with a permanent and stable home.” (Quoting In re M.L., 965 P.2d 551, 560 (Utah Ct. App. 1998).) The court further recognized the connection between “a parent’s inaction over a long period of time” and “the deterioration of the parent-child relationship during that time period.” (Quoting In re M.L., 965 P.2d at 560.) The court’s approach was consistent with Utah caselaw, which directs that “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 and on any destructive effect the parent’s past conduct or the parent’s delay in rectifying the conduct has had on the parent’s ability to resume a parent-child relationship with the child.” See In re B.R., 2007 UT 82, ¶ 13, 171 P.3d 435 (cleaned up). In this case, even if trial counsel had done more to emphasize Father’s rehabilitation or less to emphasize Father’s rationalization of the domestic violence incident, it is unlikely that the juvenile court would have changed its view regarding the destruction of the parent-child relationships. See Utah Code Ann. § 78A-6-507(1)(e); In re M.L., 965 P.2d at 561–62 (instructing that in considering a failure of parental adjustment, the court must weigh a parent’s present ability evidence “in light of the parent’s past conduct and its debilitating effect on the parent-child relationship”).
¶41 Father also suggests that his trial counsel’s performance was prejudicial because trial counsel elicited testimony about Father’s financial condition and Father’s earlier physical discipline of another child that “then served as grounds for termination.” But even without the testimony elicited by Father’s counsel about Father’s finances, the State introduced evidence that Father was employed yet had paid no child support since the time the Children were taken into DCFS custody. Thus, Father’s testimony may not have been helpful, but Father has not shown that without it the court was reasonably likely to find that Father had made more than token efforts to financially support the Children. See Utah Code Ann. § 78A-6-507(1)(f).7 As to Father’s physical discipline of another child, the court made a finding that this incident had occurred seven years earlier. But this finding does not appear to have played a significant role in the court’s decisions regarding the grounds for termination. The court did not mention it again and instead repeatedly emphasized the destructive effect Father’s neglect and inaction had on the Children. Given the totality of the circumstances, it is not reasonably likely that the court would have viewed Father and his relationship with the Children any differently had counsel not introduced these two pieces of evidence.
¶42Additionally, our own review of the record indicates that Father was not prejudiced by his trial counsel’s performance. The court understood and analyzed the facts, most of which are unchallenged on appeal. In a detailed written decision, the court carefully applied the correct law and was not misled by any confusion that trial counsel may have had. Despite Father’s strides, the court still had numerous concerns about Father, and its decision to terminate Father’s parental rights was driven largely by Father’s own untimely efforts to engage in services.
¶43 Indeed, termination for failure of parental adjustment is well supported in the evidence. Citing Utah Code section 78A-6-507(1)(e), the court found that Father was “unable or unwilling within a reasonable time to substantially correct the circumstances, conduct or conditions that led to the placement of [the Children] outside of” his home. Although DCFS provided reasonable and appropriate reunification services to Father, Father did not take the various services seriously for almost a year. See infra ¶¶ 46–49. For example, Father did not comply with the drug-testing requirement for more than eleven months—around two months before the second permanency hearing. He also “purposely refused” multiple times to allow DCFS to inspect his home until after services were terminated. And even when DCFS “made a push to return” the Children to Father, he “showed little interest” in the attempts to reunify. Cf. In re C.Z., 2021 UT App 28, ¶ 24 (affirming the juvenile court’s conclusion that “the father’s efforts were far too little far too late” (cleaned up)). Importantly, Father’s delay caused damage to his parent-child relationships with both of the Children.
¶44Furthermore, Father largely ignored the court’s no-contact order with Mother, and he had “chosen to remain” in a volatile relationship with her—a relationship that involved domestic violence. Given that the Children were removed after a domestic violence incident, Father’s refusal to distance himself from Mother showed his unwillingness to correct the circumstances that led to the Children’s removal. Cf. id. ¶¶ 25–26 (“The father’s choice to remain involved with the mother—whether romantically or as a co-parent—placed the child at continued risk.”). In light of this strong evidence that Father exhibited a failure of parental adjustment, we conclude that it is unlikely that trial counsel’s performance had any impact on the court’s findings or conclusion on this ground for termination. In other words, even if counsel had performed more effectively in the ways Father identifies, it is not reasonably likely that the court would not have found at least one ground upon which to base its termination of Father’s parental rights.
¶45In short, our confidence in the outcome of this case is not undermined by any of trial counsel’s perceived shortcomings. Father’s claims of ineffective assistance are therefore unavailing.
Reunification Efforts
¶46 Next, Father contends that DCFS did not provide reasonable reunification services to him and that the juvenile court erred in finding to the contrary. Father asserts that despite knowing he needed help with his parenting skills given A.H.’s disabilities and N.H.’s attachment issues, DCFS did not provide additional support “until it was too late.” In particular, Father points out that the PCCIT sessions began during an extension period for reunification services and only one month before the second permanency hearing, at which the court terminated services. He further argues that DCFS’s efforts were unreasonable because its delay in providing PCCIT until he was “up against the permanency deadline” limited his success in the time allotted and “virtually assured termination of reunification services.”
¶47“Generally, as long as DCFS has made a fair and serious
attempt to reunify a parent with a child prior to seeking to terminate parental rights, [DCFS] has complied with its statutory obligation.” In re A.W., 2018 UT App 217, ¶ 29, 437 P.3d 640 (cleaned up). But the process of reunification is recognized as “a two way street which requires commitment on the part of the parents, as well as the availability of services from the State.” In re K.K., 2017 UT App 58, ¶ 5, 397 P.3d 745 (per curiam) (cleaned up). Reunification services ordinarily last twelve months after a child’s removal, but the juvenile court may, under certain conditions, extend services for up to 180 days. Utah Code Ann. § 78A-6-314(6)–(7)(LexisNexis2018).Ultimately, “reasonableness is an objective standard that depends upon a careful consideration of the facts of each individual case,” and the juvenile court thus has “broad discretion in determining whether DCFS made reasonable efforts to reunify” a parent with a child. In re K.K., 2017 UT App 58, ¶ 5 (cleaned up); accord In re A.W., 2018 UT App 217, ¶ 29.
¶48 Here, DCFS provided numerous services to Father for more than a year, including drug testing, substance abuse treatment, psychological evaluation, domestic violence treatment, anger management classes, parenting classes, and weekly supervised visitation with the Children. The juvenile court extended these services, and it found that Father “actually engaged in the services,” knew what services needed to be completed, and “knew what was expected” of him. Yet Father, by his own fault, “took a lackadaisical approach to completing the services on time because he was relying on [Mother] to get the [C]hildren back.” The caseworker’s “[c]ajoling” at visits had “little effect” on Father. As discussed, DCFS’s provision of services is “a two way street which requires commitment on the part of the parents.” In re K.K., 2017 UT App 58, ¶ 5 (cleaned up).
But the court found that Father “did not take reunification services seriously for nearly a year.” While DCFS’s provision of various services and attempts to help Father were reasonable, Father bore the responsibility of participating in and completing those services, and it was Father’s “lackadaisical” and belated efforts that fell short.
¶49 Father also complains that DCFS unreasonably delayed PCCIT, especially when the juvenile court found that the therapy “could have been provided earlier.” But Father overlooks that the court also found that PCCIT “was limited because the initial parenting class was not successful, even according to [Father].” Given Father’s lack of progress in parenting class and his overall lack of timely efforts, we cannot say that DCFS’s services were unreasonable under the circumstances. We thus reject this challenge to the court’s decision.
III. Grounds for Termination
¶50 Finally, Father asserts that the juvenile court erred in terminating his parental rights on the ground of unfitness. He suggests that this ground is unsupported by the evidence because he had made significant progress by the time of trial and the court had returned Am.H. to his care. He also claims that the court erroneously deemed him an unfit parent when he merely failed to be a “model parent.” See generally Utah Code Ann. § 78A-6-503(4) (LexisNexis 2018) (stating that a parent’s fundamental liberty interest “does not cease to exist simply because a parent may fail to be a model parent”).
¶51 To the extent that Father pursues a sufficiency of the evidence challenge, he has not carried his burden on appeal. Although he discusses unfitness and mentions neglect, he has not undertaken an analysis of each ground supporting the court’s termination decision. “And we will not reverse a ruling of a lower court that rests on independent alternative grounds where the appellant challenges less than all of those grounds.” In re J.M., 2020 UT App 52, ¶ 30, 463 P.3d 66 (cleaned up).
¶52To the extent Father believes that the court terminated his
rights based solely on his failure to be a model parent, we are not persuaded. The court made detailed findings in support of five grounds for termination, and this case involves much more serious problems than Father’s mere failure to be a model parent. Thus, we reject Father’s challenge to the grounds for termination.
CONCLUSION
¶53 Father has not shown that he was prejudiced by his trial counsel’s performance, and we therefore reject his claims of ineffective assistance of counsel. Father also has not established error in the juvenile court’s decisions regarding DCFS’s reasonable efforts and the grounds for termination. Accordingly, we affirm the court’s decision terminating Father’s parental rights as to A.H. and N.H.
Utah Family Law, LC | divorceutah.com | 801-466-9277
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
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[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.
STATE OF UTAH,
Appellee,
v.
JOHNNY BRICKMAN WALL,
Appellant.
Opinion
No. 20151017-CA
Filed December 12, 2019
Third District Court, Salt Lake Department
The Honorable James T. Blanch
No. 131903972
Troy L. Booher, Freyja Johnson, and Beth Kennedy, Attorneys for Appellant
Sean D. Reyes and Tera J. Peterson, Attorneys for Appellee
JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES GREGORY K. ORME and JILL M. POHLMAN concurred.
HAGEN, Judge:
¶1 A jury convicted Johnny Brickman Wall of murdering his ex-wife, Uta von Schwedler.[1] Wall appeals his conviction, arguing that there was insufficient evidence to convict him, that the district court erred in admitting certain DNA evidence, and that his trial counsel was ineffective in failing to object to the State’s closing argument involving the DNA evidence. We conclude that Wall has not carried his burden on appeal to show there was insufficient evidence to support his murder conviction. Further, the district court did not exceed its discretion in admitting certain DNA evidence, and Wall’s trial counsel did not perform deficiently in failing to object to the prosecutor’s characterization of that evidence in closing argument. Accordingly, we affirm Wall’s conviction.
BACKGROUND
Marriage and Divorce
¶2 In 1988, a mutual friend introduced Uta to Wall while they were each completing doctorate programs on the west coast. Wall and Uta married in 1990, and Wall graduated from medical school four years later. After medical school, Uta, Wall, and their newborn son moved to Utah for Wall’s residency program. Over the next few years, they had three more children together.
¶3 By 2005, the marriage had failed and Uta moved out of the family home, leaving the four children to live primarily with Wall. The couple divorced in 2006.
¶4 Wall and Uta responded differently to the divorce. According to their children, Wall was “very, very sad” and depressed after the divorce, but over time his mood changed from sadness to “anger, even hatred” toward Uta. Wall frequently complained to the children about Uta, saying that she was “a bad parent,” that she was “selfish,” and that she made his “life difficult.” The children said that Wall never treated Uta “nicely or kindly” after the divorce. At one point, Wall “physically removed” Uta from his property when she “tried to come in the front yard” to pick up the children for her parent time.
¶5 Most people who knew Wall knew that he “despised” Uta. He asked his friends, “Would it be bad if Uta wasn’t here anymore?” and “How would my life be if she weren’t around?” He sent emails to Uta accusing her of immoral acts and threatening to “move away” with the children “or continue towards obtaining full custody.” He blamed Uta for his unhappiness and accused her of “hurt[ing] people that matter deeply” to him. When she reached out to him regarding requests from the children’s friends for weekend trips, he asked her to “please stop inserting [herself] in [his] parent time.”
¶6 It was clear that Wall did not want Uta in the children’s lives. The summer before her death, Wall took the children to California but refused to tell them when they were returning to Utah because he did not want them to tell Uta. If the children attempted to communicate with Uta while they were with Wall, “he would become very upset” and would sometimes take their phones away from them. He was uncooperative with Uta regarding parent-time exchanges and adjustments to the custody arrangement. Wall frequently ignored Uta’s messages, and she had to organize parent-time schedules through her older children.
¶7 Uta’s response to the divorce was quite different. Her friends, family, coworkers, and other acquaintances who testified at trial knew Uta to be “very outgoing, very friendly, very cheerful,” and “full of life.” Those witnesses said her positive attitude continued after the divorce, and some people “certainly thought she was happier” after the divorce. She was welcoming to newcomers and frequently brought homemade treats to work or to social gatherings. She regularly engaged in physical activities such as swimming, running, hiking, skiing, and camping. Uta was in a “very happy” relationship with a man (the boyfriend) whom the children liked, and the two eldest children told family members that they “were so happy that Uta had [the boyfriend]” because he was “a really, really good match for Uta.” No witness testified that Uta was unhappy or suicidal, except for Wall.
¶8 Uta was very involved in her children’s lives. Although she “had a great love and passion for science,” she arranged with her supervisor to work a “30-hour work week” because “it was important to her to be available for [her children] after [school] hours.” “Uta’s greatest pleasure in life was the love of her four children,” and she wanted to spend more time with them. She attended their sporting events and musical performances and created photo albums for each of them.
¶9 One of the few things that upset Uta was attempting to work with Wall regarding the children. A few years after the divorce, Uta hired an attorney to file a petition to modify the divorce decree regarding parent time, and the court ordered mediation. Although Wall and Uta reached an agreement during mediation, Wall later refused to sign the proposed order. Thus, for years following the divorce, the custody arrangement was never sorted out and remained a “constant battle.”
¶10 Early in September 2011, after years of unsuccessfully attempting to work out a better custody arrangement outside of court, Uta reached out to her attorney to discuss filing a new petition to modify the divorce decree and to consider moving to appoint a custody evaluator. Wall ignored Uta’s inquiries related to the children, including whether he would either agree to sign the custody evaluation request or agree to the proposed parent-time schedule for the upcoming school year. He also frequently ignored his own attorney’s communications related to these requests. The week before Uta’s death, in an apparent change of course, Wall agreed to sign the custody evaluation request the following week. But after he left the children in Uta’s care for the weekend, Wall “excited[ly]” told a new acquaintance that “he was getting his kids back.”
Uta’s Final Days
¶11 The week before her death, Uta had made a discovery in her research that could advance a new treatment for childhood leukemia. According to her supervisor, the “long-term implications of that discovery” were “very exciting on a professional level, on a career level, both for Uta and . . . the lab, because [it would] lead[] to new peer-reviewed publications, grants, [and] presentations.” This was a “milestone” in Uta’s career that would have had “positive implications” for her.
¶12 On September 26, 2011, the day before her body was discovered, Uta had a meeting with her supervisor and another coworker related to this new discovery, and they were all “quite enthusiastic” because “[t]his was one of the biggest discoveries [they] had had thus far in the laboratory.” Later that evening, Uta attended one of the children’s soccer games and was “in a great mood.” She spread out a blanket and shared treats with other parents. Uta told a fellow parent that she “had been camping that weekend with her kids and [her boyfriend]” and was looking forward to her upcoming trip to California with her two youngest children later that week while Wall took the two eldest children to visit universities back east.
¶13 After the soccer game, Wall arrived at Uta’s house to take the children back home. When he arrived, Uta tried to talk with him to finalize the details for the California trip, but Wall “rolled up his window and ignored her.” According to the children, Wall appeared annoyed on the drive home.
¶14 With the children out of the house, Uta went about her usual Monday evening routine of “deep cleaning” the house. Uta called her boyfriend and made plans with him for the following night. At around 10:45 p.m., Uta spoke with a friend over the phone about potential plans for the next day. That was the last time anyone heard from Uta.
September 27, 2011
¶15 The following morning, on September 27, 2011, Uta’s neighbors did not see her at her kitchen table drinking coffee and reading her newspaper, as she did all other mornings. Instead, the newspaper remained in the driveway, and the garbage cans Uta put out for collection the night before remained on the street.
¶16 That same morning, Uta’s eldest daughter awoke at around 6:00 a.m. and got ready for school. She searched the house for Wall, who usually drove her to the light rail station, but she could not find him anywhere. The eldest daughter testified that if Wall had to leave for the hospital in the middle of the night, he would “generally . . . text [her] or call [her]” to let her know, but he had not left her any messages that morning. After calling him twice with no answer, the eldest daughter walked to the station to go to school. Wall was spotted by the eldest daughter’s schoolmate and her mother at 7:05 a.m., driving some distance away from and in the opposite direction of his house, and Wall still had not returned home to get the youngest children ready for school by the time the eldest son left for school around 7:30 a.m. But the two youngest children remembered speaking with Wall at some point before leaving for school. Specifically, they remembered seeing an injury to Wall’s eye. Wall told them that he had slept outside on the porch and had been scratched by their dog, but the youngest daughter thought Wall was acting “weird, almost paranoid.” Just after 8:00 a.m., a carwash facility photographed Wall dropping off his car. Wall took his car there to “detail the inside” and asked the carwash attendant to focus “extra heavy” in the trunk cargo area and on a spot on the driver’s side back seat.
¶17 After leaving his car to be detailed, Wall arrived late for appointments with patients. He “looked disheveled and anxious,” appeared not to have bathed, and wore the same clothes as the previous day. A medical assistant noticed that he had a scratch on the left side of his face and that his left eye was “reddened and bloodshot.” Although two people who worked in Wall’s office said that this scratch looked like it was caused by a fingernail, “Wall volunteered an explanation for the scratch, saying that his dog jumped on him and scratched his face while he was sleeping outside.” One of the assistants “thought [this] explanation was odd because [Wall] had his dog for a long time and she had never seen it scratch him before.” When Wall noticed that his assistant was looking at additional scratches on his arms, he “quickly” rolled down his sleeves. After seeing one patient, Wall left to see an eye doctor and did not return to work.
¶18 When the eldest children returned home, they too noticed the scratch to Wall’s face and eye. Wall told them that he had been sleeping outside occasionally over the past few months and that their dog had scratched him the night before while he slept outside on the porch. None of the children had ever seen Wall sleep outside on the porch, and none of them knew their dog to scratch anyone.
The Crime Scene
¶19 At around 7:45 p.m. on September 27, 2011, Uta’s boyfriend went to visit her as they had planned the night before. Uta’s garbage cans were still on the street, and her newspaper was still in the driveway. The boyfriend walked into her house through her unlocked door, which Uta normally locked before going to bed. He noticed that her bathroom door was slightly ajar and that the light was on. On his way to the bathroom, he walked past her bedroom and noticed that the blinds, which were always open, had been pulled shut. The boyfriend reached the bathroom, announced his presence, opened the door, and found Uta dead in her bathtub with the cold water running but not overflowing. She wore only her pajama shorts, and her bloodied tank top was folded at the edge of the bathtub. The boyfriend called the police, who quickly arrived on the scene.
¶20 Upon entering the house, the first responders noted that there were pills strewn across the bedroom floor, a lamp had toppled over on the bed, and a vase and books from the nightstand had been knocked onto the floor. The comforter on the bed had been balled up in a way that appeared to conceal several dried bloodstains. The fitted bed sheet contained one large pool of blood and two smaller pools of blood that “show[ed] motion in three different directions,” indicating “a sign of a real struggle.” There was also a bloodstain on the pillowcase. In the bathroom, there was blood smeared on the sink and below the windowsill located above the bathtub, but there was no blood smeared on the walls between Uta’s bedroom and bathroom or on any of the light switches. There was a shampoo bottle standing upright in the middle of the bathroom floor, which was usually kept in the windowsill above the bathtub. Under Uta’s body, the first responders found a large kitchen knife. Also in the bathwater was a magazine, the sports section of the newspaper (which Uta never read), and the youngest daughter’s photo album. There were dried bloodstains that looked like shoeprints on the kitchen floor.
¶21 Some of the officers testified that the scene appeared “suspicious,” as if “there could have been a struggle,” and that it “did not appear consistent with an overdose or accidental death.” After leaving the scene, one of the officers contacted detectives to conduct an investigation.
Wall’s First Version of the Events of September 26 and 27
¶22 Later that night, the detectives arrived at Wall’s house to ask him “if he was willing to come down to [the] police station to talk.” The officers did not tell Wall what they wanted to talk about, and he did not ask them.
¶23 While Wall waited to be interviewed, the detectives first interviewed the boyfriend. The boyfriend was “compliant” and “helpful.” He did not “have any trouble time-lining himself, explaining what he had been doing the weekend before, [or what happened] the day before. He seemed to be honest in all of his answers.”
¶24 In contrast, Wall’s responses to the detectives’ questions were vague and he spoke in generalities rather than directly answering questions about what occurred the previous night. When the detectives asked where he went the night before after picking up the children from Uta’s house, Wall said, “I don’t know . . . I don’t rem . . . I mean, I don’t usually remember every . . . what I do, but . . . ah . . . usually what we do.” (Omissions in original.) He went on tangents about what usually happened when he retrieved the children from Uta’s house at the conclusion of her parent time. The officers kept redirecting Wall, stating, “So what happened last night, though, [Wall]? This was just last night.” But Wall continued to respond to inquiries about the previous night with things the family “usually” did on Monday evenings or what the children “sometimes” did when they got back to Wall’s house. Wall could not say if he had been home the entire night or if he had gone back to Uta’s house after picking up the children. Wall evaded direct answers about the last time he had seen Uta, and he could not remember if he had recently touched Uta or the last time he had been inside Uta’s house. When directly asked if he had been inside Uta’s house on September 26 or 27, Wall responded, “I don’t think so.” When asked if there was “any reason, whatsoever, that [his] DNA . . . would be under [Uta’s] fingernails,” Wall responded, “I don’t know.” When he was asked if he killed Uta, he said, “I don’t think I did it,” “I don’t think I was there,” and, “If I did it, I did make a mistake, and I am sorry. But I don’t think I did it.”
¶25 Eventually, over the span of three hours, Wall gave an account of the things he did on September 27, 2011. He told the detectives that he went to a gas station near his house to purchase eggs between 6:45 a.m. and 7:00 a.m. He said he returned to the house and had breakfast with his two youngest children before taking them to school. Wall then went to a carwash facility because he had “extra time” that morning and there were “burritos spilled all over” the front passenger seat. He talked about going to his office, seeing the eye doctor regarding the scratch on his eye—which he again said his dog caused—and returning to the carwash to get his car before driving to his office at the hospital. At the hospital, Wall apparently parked his car and left his windows rolled down with his cell phone still inside the vehicle. He claimed that his cell phone had been stolen by the time he returned.
¶26 Wall could not tell the officers what he had done between 8:00 p.m. on September 26, 2011, and 6:45 a.m. the following day.
¶27 After interviewing Wall, the detectives had photographs taken of Wall’s injuries and had a technician take his fingerprints. Wall was not arrested, and a detective arranged a ride home for him. One of the detectives testified at trial that Wall was “surprised” that he was being released and asked, “[S]o I’m not going to jail?” When the detective said he was not, Wall responded, “[B]ut I’m a monster.”
Wall’s Conduct Following Uta’s Death
¶28 When Wall returned home from his interview with the detectives at around 2:30 a.m., he bluntly told the children, “Uta’s dead and they think I did it.” He told the youngest daughter “not to leave him alone because he was scared he would do something he would regret.” Wall curled up “in the fetal position” and cried. He started “babbling and rambling” and “saying things along the line of: ‘Am I a monster? Only a monster could have done this. How do I know what I do when I’m asleep? What if I did it and I don’t remember?’” The children and family friends testified that Wall repeatedly referred to himself as a monster in the days following Uta’s death. The eldest son explained that Wall’s ramblings made him “question[] [Wall’s] involvement in [his] mother’s death.”
¶29 One of the children called a family friend to help Wall. Wall told this friend, “Uta is dead and they think I did it . . . .” When she asked him, “[D]id you do these things that—that the police said you did?” Wall responded, “If I did them, I don’t remember.” When this friend started looking for some of Wall’s medications, he told her that he had been “sleeping outside recently” and that “the dog scratched him on his face.” She asked him, “Why are you telling me this?” And then he showed her his eye. The friend noticed other scratches and “gouges” on Wall’s body, which he quickly covered up. Because Wall was so “distraught,” the friend wanted to offer him a sedative and asked him if he was familiar with Xanax. Even though he was a medical doctor and had twice prescribed himself Xanax after his divorce from Uta, Wall claimed not to know what it was. After the friend explained Xanax’s purpose, Wall claimed to remember recently prescribing his mother Xanax “because she’s afraid to fly.” Wall then started telling the friend that “[a]ll he wanted was for Uta to be happy . . . and that’s all he ever wanted,” which the friend found to be “unusual because [she] felt like he was very angry at Uta” and did not believe that Wall really wanted her to be happy.
¶30 That same morning, Wall checked himself into a psychiatric facility where he stayed for about a week. While he was receiving treatment, the eldest son and a family friend visited him and asked him questions about Uta’s death. During this conversation, Wall asked his son, “If the police found my phone there [at Uta’s house,] what could I say to refute that?”
¶31 After Wall’s release from psychiatric treatment, the children resumed living with him, but his behavior changed. Over time, Wall restricted the children’s communication with Uta’s family and the boyfriend. Wall told the children that the boyfriend should have “come to him and comforted him in his time of need,” and therefore the boyfriend should not be allowed to communicate with the children. (Emphasis added.) Wall also began telling his children that Uta committed suicide and told the youngest son, “[M]aybe it’s better that she’s dead.” He became more “confrontational,” “aggressive and intimidating” toward the children regarding Uta’s death. The eldest son moved out of Wall’s house the day after an “uncomfortable incident” in January 2012, in which Wall asked him “what [he] knew about [his] mom’s death” and “what attorneys [he] had contacted.” By May of that year, the three other children were also no longer living with Wall.
¶32 After Uta’s death, the eldest son went to Uta’s house to collect the children’s photo albums to send them to Uta’s family in Germany. He could not enter the house on his own because the spare key that was normally left outside for the children was missing and never found. After receiving help from the boyfriend to gain access to the house, the eldest son retrieved the albums and sent them to Germany. The eldest son informed Wall that he had sent the photo albums to Germany and that Wall would receive copies of the albums. In November 2012, Wall sued the eldest son for conversion and demanded to have the photo albums returned to him. In response, the eldest son filed a counterclaim against Wall for Uta’s wrongful death.
Wall’s Second Version of the Events of September 26 and 27
¶33 At a hearing on the wrongful death claim, at which Wall was present, the lead detective testified that he was actively investigating Uta’s death as a homicide and that Wall was the primary suspect. He further testified that “DNA samples had been submitted to [a] lab for testing” and that those results were still pending.
¶34 After this hearing, Wall was deposed and asked about his whereabouts between September 26 and 27. During his deposition, Wall offered new details to account for how his or Uta’s DNA might have transferred to the areas tested by police. For instance, police took a swatch of fabric from the driver’s side back seat where Wall had pointed out a spot at the carwash. Wall volunteered that, when he picked up the children from Uta’s house the night before her death, Uta had opened the driver’s side rear passenger door to hug the youngest daughter. Wall also claimed, for the first time, that he had caught Uta walking out of his garage later that night. Wall said he pursued Uta and “[s]he turned around and hit [him] in the face” and might have scratched him. He claimed that Uta had broken into his basement “multiple times in the previous months,” but that he never reported it to the police.
¶35 Although the DNA results were still pending, counsel deposing Wall asked him, “Why is your DNA in Uta’s bedroom?” He said he did not know if his DNA was there, but that Uta had invited him into her bedroom before “to seduce [him],” although he declined her advances. He could not remember when she last invited him into her bedroom but said that it could have been one or two months before her death.
¶36 Wall also testified in his deposition that Uta attempted suicide once on their honeymoon in 1991 and again while she was pregnant with their youngest son. But Wall said that he never reported either suicide attempt[2] or helped Uta seek counseling or treatment.
¶37 Finally, Wall gave a different version of events regarding his whereabouts on September 27, 2011, than what he told the detectives. This time, Wall explained that after allegedly chasing Uta away and being hit by her in the face, he went back inside his house to sleep. He woke up around 5:00 a.m. and decided to go to the hospital to work on his patients’ charts but realized that he forgot his identification and could not enter the hospital. Wall said he decided to go for a hike up a nearby canyon before the sun rose and before going to the carwash facility and then to work. Unlike the story he told at his police interview, this version of events did not include Wall being at home that morning with the two youngest children and the newly purchased eggs before school, even though the youngest children testified to that effect.
The Investigation
¶38 While Wall was getting psychiatric treatment in September 2011, Uta’s body was sent to a medical examiner to perform an autopsy. Although some of the officers believed there could have been foul play and that her death appeared suspicious, an investigator’s report provided to the medical examiner said her death was “a probable suicide overdose.” The medical examiner later testified that, had the “case been presented . . . as a suspicious death or homicide,” he would have taken more photographs of the body and conducted a more thorough examination. The medical examiner noted “sharp force injuries on her left wrist . . . in three separate locations,” a bruise on her lip, an abrasion on her cheek, and a laceration to her lower leg. Uta also had internal hemorrhages in her neck, which could have been sustained by a “broad and/or soft blunt object being applied in that location,” and petechiae (burst capillaries) in her right eye, each of which were consistent with strangulation. Uta had a near-lethal dose of Xanax in her system, but there were no pill remnants in her stomach. The medical examiner was “not looking specifically for an injection site anywhere,” because the case was brought to him as a probable suicide, but he testified that any of the injuries on Uta’s body “could potentially obscure an injection site” if that was how the Xanax got into her system. The medical examiner explained that the nature of Uta’s wounds was “not like anything [he] had ever seen in a suicide,” because they appeared to be defensive rather than self-inflicted, and that he had concerns that the police were “dealing with a homicide.”
¶39 After conducting the autopsy, the medical examiner concluded that Uta’s cause of death was drowning but could not determine the manner of death. Based on his concerns that the manner of death may have been homicide, the medical examiner asked the officers to meet with him to discuss his findings. Because he could not determine how the Xanax got into her system, he asked the officers if they were conducting further investigation. The sergeant in charge of the case at that time “basically [said] that we think this is a suicide, period.” The medical examiner told the officers that he was “not going to call this a suicide,” and that the manner of death was “undetermined” based on what he knew. The medical examiner explained that the scene of the crime was “suspicious,” that it appeared “more consistent with homicide than anything else,” and that “but for the Xanax” in Uta’s system, he “would have certified the death as a homicide.”
¶40 A few weeks after the medical examiner performed the autopsy, the investigation stalled. Between November 2011 and November 2012, the boyfriend, an ex-boyfriend, the eldest son, and some of Uta’s other family members kept pressing the police to investigate the case as a homicide. Finally, in November 2012, the investigation resumed in earnest.
¶41 A crime scene reconstructionist reviewed the photographs taken by the investigators the night Uta’s body was found, visited Uta’s house after it had been cleaned, and reviewed the items collected from the scene. The reconstructionist determined that Uta had been murdered and that the murderer had staged the scene to look like a suicide. The reconstructionist, who had special training and expertise in “blood pattern interpretation,” analyzed the blood patterns on Uta’s comforter and fitted sheet and concluded that a “violent struggle” occurred and that Uta struggled “under a restraint.” The reconstructionist also analyzed Uta’s bloodied tank top that had been folded and laid over the side of the bathtub. Although there was one saturated spot on the chest where it appeared Uta had held her bleeding wrist against her body, there was “no hand transfer” of blood onto the tank top where one would expect to see it if Uta had removed the tank top herself. The reconstructionist opined that the bloodstains in the bathroom under the windowsill and on the sink appeared to have occurred while Uta was being pushed into the bathroom. The bloodstains were not consistent with Uta being “intoxicated and stumbling around her house on her own” because there were no apparent patterns on the walls of someone staggering or touching surfaces to get from the bedroom to the bathroom.
¶42 Forensic testing also revealed that there were bloody shoeprints in the bathroom and the bedroom and that there was a bloody spot above Uta’s headboard. These blood stains initially went undetected because they had been cleaned up before the boyfriend discovered Uta’s body and first responders arrived at the scene. A crime scene technician discovered these bloodstains using a special chemical that changes color when it comes into contact with blood protein, which helped to make the “partially visible” or “faint” bloodstains in the bedroom and on the bathroom floor more visible.
¶43 Unlike the faint bloodstains that were overlooked by the first responders, dried-blood shoeprints had been immediately apparent in Uta’s kitchen. The crime scene reconstructionist explained that those stains would not have come from “rehydrated blood” because if the blood had dried and a person with a wet shoe stepped into the blood and started walking, that person “might get flakes . . . [or] portions” of blood, but it would not make a full bloody shoeprint. The reconstructionist concluded that the evidence showed another person had been present and attacked Uta and that “this scene was a homicide that was staged to look like a suicide.”
¶44 Investigators searched to find where the Xanax may have come from. Uta was never prescribed Xanax, she had never told anyone she had taken it, and no prescription bottle for it was found at her house. Even though Uta sometimes stored her medication in film canisters, those canisters were always labeled. Further, Uta kept a yearly “medicine calendar” in which she dutifully documented the medications she took, the amount she took, and her “level of wellness” related to those medications. Nowhere on these calendars did Uta document taking Xanax.
¶45 On the other hand, Wall had twice prescribed himself .5 milligrams of Xanax following the divorce. And, just four months before Uta’s death, Wall wrote a prescription for the highest dosage of immediate release Xanax, which is 2 milligrams, and filled that prescription at a pharmacy that he had never used before or since. Wall claimed that he filled this prescription for his mother who lived in California, but in their initial interviews with investigators, Wall’s parents could not confirm whether they ever received such a medication.
¶46 At the crime scene, the investigators collected, among other things, a pillowcase and scrapings from underneath Uta’s fingernails to be tested for DNA evidence. Using different techniques, investigators extracted DNA samples from each of these items. The forensic analysis revealed that Wall was a possible contributor to the DNA located on the pillowcase, but Wall could not be included or excluded as a possible contributor to the male DNA located under Uta’s fingernails. Uta’s ex-boyfriend, the boyfriend, and the first responders were all excluded as possible contributors to the DNA located under Uta’s fingernails.
¶47 More than two years after Uta’s death, the State charged Wall with murder. During the four-week jury trial, the State presented the evidence detailed above. The jury also heard, among other things, from two forensic pathologists who were given Uta’s autopsy report with photographs, police reports, crime scene photographs, crime laboratory reports, photographs of Wall’s face taken on September 27, 2011, the report from Wall’s eye doctor, the preliminary hearing testimony of the medical examiner, and Uta’s healthcare reports. Both agreed that Uta’s wounds to her wrists and leg were not self-inflicted and were instead defensive wounds. They both determined that, although there was a near-lethal dose of Xanax in her system, the low level of Xanax in Uta’s stomach was consistent with either the drug being injected into her body or swallowed as a slurry meaning that the pills had been crushed and mixed with a liquid. Both of the forensic pathologists concluded that Uta’s manner of death was homicide.
¶48 The jury convicted Wall of murder. Wall now appeals.
ISSUES AND STANDARDS OF REVIEW
¶49 Wall argues that the evidence of guilt was insufficient to support the jury’s verdict “because the inference that [Wall] killed [Uta] is less likely than the inference that [Uta] killed herself, whether accidentally or intentionally.” “In considering an insufficiency-of-evidence claim, we review the evidence and all reasonable inferences drawn therefrom in a light most favorable to the verdict.” State v. Jones, 2015 UT 19, ¶ 15, 345 P.3d 1195 (cleaned up). “We will reverse only when the evidence, so viewed, is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he or she was convicted.” Id. (cleaned up).
¶50 Wall next argues that the district court erroneously admitted certain DNA evidence through expert testimony. We review the district court’s decision to admit expert testimony under an abuse-of-discretion standard, and “we will not reverse a decision to admit or exclude expert testimony unless the decision exceeds the limits of reasonability.” Walker v. Hansen, 2003 UT App 237, ¶ 12, 74 P.3d 635 (cleaned up).
¶51 Wall also argues that his trial counsel “was ineffective for failing to object when the State mischaracterized the DNA results” in closing argument. “An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law. In such a situation, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law.” State v. Archuleta, 2019 UT App 136, ¶ 17, 449 P.3d 223 (cleaned up).
ANALYSIS
I. Sufficiency of the Evidence
¶52 Wall argues that “the evidence is insufficient to exclude reasonable doubt.” Specifically, he argues that “the State’s construal of circumstantial evidence . . . that [Uta] was attacked, restrained, and injected with Xanax, all without leaving restraint marks on her body or any DNA evidence . . . was physically possible,” but “it [was] not the most reasonable explanation.” Instead, he claims that the most reasonable explanation is that Uta’s death was an accident or a suicide.
¶53 To succeed on a sufficiency of the evidence challenge, the appellant “has the burden to marshal the evidence in support of the verdict and then demonstrate that the evidence is insufficient when viewed in the light most favorable to the verdict.” State v. Jones, 2015 UT 19, ¶ 68, 345 P.3d 1195 (cleaned up). On appeal, we do not reweigh the evidence presented to the jury. “When the evidence presented is conflicting or disputed, the jury serves as the exclusive judge of both the credibility of witnesses and the weight to be given particular evidence.” State v. Workman, 852 P.2d 981, 984 (Utah 1993). “Ordinarily, a reviewing court may not reassess credibility or reweigh the evidence, but must resolve conflicts in the evidence in favor of the jury verdict.” Id. We are thus restricted to “evaluat[ing] whether the evidence is so inconclusive or inherently improbable that it could not support a finding of guilt beyond a reasonable doubt.” Id.
¶54 Wall concedes throughout his brief that “suicide and homicide are at least equally probable.” He says that all of the evidence is “consistent with homicide” but that the same evidence is at least “equally consistent” with suicide and that some evidence is “more consistent” with suicide. In making this argument, Wall relies on language from State v. Cristobal, 2010 UT App 228, 238 P.3d 1096. In that case, we suggested that “[w]hen the evidence supports more than one possible conclusion, none more likely than the other, the choice of one possibility over another can be no more than speculation.” Id. ¶ 16. But as our supreme court has since clarified, “the fact that we can identify an ‘equally’ plausible alternative inference is not nearly enough to set [a] verdict aside.” State v. Ashcraft, 2015 UT 5, ¶ 25, 349 P.3d 664. On appeal, “[t]he question presented is not whether some other (innocent) inference might have been reasonable,” but “simply whether the inference adopted by the jury was sustainable.” Id. ¶ 27.
¶55 Wall argues that the jury’s verdict was not based on reasonable inferences, but on speculation. He posits that the “distinction [between reasonable inferences and speculation] turns on whether there are equally likely interpretations of the evidence.” Here, because “the evidence and inferences did not preclude the reasonable alternative hypothesis presented by the defense,” he contends that the jury’s verdict was based on speculation, which does not constitute proof beyond a reasonable doubt. (Quoting State v. Cardona-Gueton, 2012 UT App 336, ¶ 11, 291 P.3d 847 (cleaned up).) Despite the broad language used in some of our past opinions, “the law is well established that the existence of one or more alternate reasonable hypotheses does not necessarily prevent the jury from concluding that a defendant is guilty beyond a reasonable doubt.” Cardona-Gueton, 2012 UT App 336, ¶ 11 (cleaned up). “It is the exclusive province of the jury to weigh the competing theories of the case, in light of the evidence presented and the reasonable inferences drawn therefrom, and to conclude which one they believe.” Id. (cleaned up). Therefore, “despite the existence of theoretically ‘reasonable’ hypotheses, it is within the province of the jury to judge the credibility of the testimony, assign weight to the evidence, and reject these alternate hypotheses.” State v. Blubaugh, 904 P.2d 688, 694–95 (Utah Ct. App. 1995). Indeed, “a finding that a defendant is guilty beyond a reasonable doubt is necessarily a finding that any alternative hypothesis of innocence presented at trial was not reasonable under the jury’s view of the evidence.” Cardona-Gueton, 2012 UT App 336, ¶ 12.
¶56 Consequently, it is not enough for Wall to show that the evidence would have permitted a reasonable juror to accept the defense’s theory that Uta’s death was an accident or suicide. “These are fair arguments for counsel to present to the jury in closing.” Ashcraft, 2015 UT 5, ¶ 24. But once the jury has rejected the alternative explanation offered by the defense, “an appellate court will reverse such a finding only where no reasonable juror could have taken that view of the evidence.” Cardona-Gueton, 2012 UT App 336, ¶ 12. “The question presented is not whether we can conceive of alternative (innocent) inferences to draw from individual pieces of evidence, or even whether we would have reached the verdict embraced by the jury.” Ashcraft, 2015 UT 5, ¶ 24. Instead, it is “simply whether the jury’s verdict is reasonable in light of all of the evidence taken cumulatively, under a standard of review that yields deference to all reasonable inferences supporting the jury’s verdict.” Id.
¶57 The jury’s determination that Uta was murdered is well supported by the evidence admitted at trial. As to the crime scene, multiple witnesses testified that there was evidence of a “violent struggle.” Items throughout Uta’s bedroom were knocked over onto the floor and the bed, even though there was no blood pattern on the walls to suggest that Uta might have caused the disarray by stumbling around the room on her own. The blood patterns on Uta’s comforter and sheet showed that Uta struggled “under a restraint.” The bloodstains under the bathroom windowsill and sink were consistent with Uta being pushed into the bathroom with blood on her hands. The lack of hand-transfer bloodstains on Uta’s tank top suggested that she had not removed it herself. And although the defense expert drew different conclusions from this same evidence, the weight to be given to such conflicting expert opinions is solely the province of the jury. See State v. Berchtold, 357 P.2d 183, 186 (Utah 1960).
¶58 As to Uta’s injuries, she sustained defensive wounds on her arms and on the back of one of her legs, suggesting that she tried to defend herself from an attacker. She had hemorrhaging in her neck and petechiae in her eye, each of which is consistent with strangulation. She also had male DNA under her fingernails, which is consistent with scratching an attacker.
¶59 Additional evidence supported the prosecution’s theory that a second person left the home shortly after Uta had been subdued. The blinds in Uta’s bathroom and bedroom—which were normally open—had been shut, and bloody shoeprints in those rooms had been wiped clean, as well as a bloody spot above Uta’s headboard. In the kitchen, which had no blinds, no effort had been made to clean up dried-blood shoeprints. The prints did not match any of the first responders’ or the boyfriend’s shoes. In any event, the reconstructionist testified that Uta’s blood would have dried in the hours between her death and the discovery of her body and that the prints were inconsistent with the later transfer of rehydrated blood. Evidence that someone had tracked fresh blood through the kitchen around the time of Uta’s death and had tried to clean up blood in those rooms where the activity could take place behind closed blinds was strong evidence supporting the jury’s conclusion that Uta was murdered.
¶60 Other evidence further undercut the defense’s theory that Uta’s death was a suicide or accidental overdose. Without exception, the witnesses who knew Uta testified that she was not suicidal. To the contrary, she was excited about a breakthrough at work, was looking forward to an upcoming trip with the younger children, and was making plans up until the night before her death. And although there was a near-lethal dose of Xanax found in Uta’s system, there was no evidence that Uta had ever been prescribed or taken Xanax, and no prescription bottles or labeled film canisters for the drug were found at Uta’s house. In addition, there were no pill remnants in her stomach that would account for the concentration of Xanax in her system, supporting the prosecution’s theory that Uta was either injected with or forced to swallow a slurry containing a high concentration of Xanax.
¶61 Two forensic pathologists reviewed all of the relevant reports from the police, medical practitioners, and the autopsy and testified that the cause of death was homicide. Even the medical examiner, who had been told that Uta’s death was “a probable suicide overdose,” found the evidence to be “more consistent with homicide than anything else,” refused “to call this a suicide,” and “would have certified the death as a homicide” had it not been for the ambiguity created by the Xanax in Uta’s system. The medical examiner’s uncertainty was understandable because, as the crime scene reconstructionist explained, “this scene was a homicide that was staged to look like a suicide.” Based on all of this evidence, a reasonable jury could find beyond a reasonable doubt that Uta was murdered.
¶62 There was also sufficient evidence to support the jury’s determination that Wall was the murderer. Wall had a well-established motive to kill Uta. They were involved in an acrimonious ongoing custody dispute, and those familiar with him knew that Wall “despised” Uta. He often complained that she made his “life difficult” and blamed her for his unhappiness. Mere days before Uta’s body was discovered, Wall informed a new acquaintance that he was “getting his kids back.” And after her death, Wall told their youngest son that “maybe it’s better that she’s dead.”
¶63 Wall also had the opportunity to commit the murder. He could not account for his whereabouts around the time of Uta’s death. In his first police interview, Wall told the detectives that he had gone to a gas station near his house to purchase eggs between 6:45 a.m. and 7:00 a.m. and then returned home to make breakfast. But his older children indicated that he was already gone when they awoke for school around 6:00 a.m. and had not returned by the time the eldest son left for school at 7:30 a.m. In a deposition more than a year later, he claimed that he woke up early and went to the hospital to work on charts, even though a hospital witness testified that doctors know that they cannot access the medical records office before 8:00 a.m. Wall claimed that he could not access the hospital because he had forgotten his identification and then decided to go on a pre-dawn hike, despite having left no word for his children, as had been his practice. No one could corroborate his whereabouts between the time the children went to bed the night before and 7:05 a.m. the next morning when he was spotted driving his car some distance from his house.[3] He later appeared for work disheveled and wearing the same clothes as the day before as if he had not been home to sleep or get ready for work. Not only did Wall have the time and opportunity to commit the murder, the jury had ample reason to find his evolving story incredible.
¶64 The lack of forced entry at Uta’s home also supported the conclusion that the crime was not committed by a stranger. When Uta’s body was discovered, the door to her house was unlocked, even though Uta always locked it before bed. The eldest son testified that Uta kept a spare key hidden outside the house for the children and that the key was missing after Uta’s death. The jury could reasonably infer that Wall knew of the spare key and used it to enter the house on the night of the murder.
¶65 Wall also had access to the drug used to subdue Uta. In fact, he had recently written a prescription for the highest dose of Xanax, purportedly for his mother who lived in California, although she could not confirm receiving it. The jury could reasonably conclude that Wall filled the prescription at a pharmacy that he had not used before or since (and later feigned ignorance of the drug) to make it harder to link him to the drug he used in the course of killing Uta.
¶66 The jury could also reasonably conclude that Wall’s behavior and statements showed consciousness of guilt. When the police asked him if he killed Uta, he responded with equivocal statements such as, “I don’t know, I don’t think I did it,” “I don’t think I was there,” and “If I did it, I made a mistake, and I am sorry. But I don’t think I did it.” When Wall was released after the police interview, he was surprised and said, “[B]ut I’m a monster.” When he returned home, Wall announced to the children, “Uta’s dead and they think I did it.” Rather than comfort the children, Wall acted “distraught,” curled into the fetal position and cried, and forced the children to take care of him because “he was scared he would do something he would regret.” He kept calling himself a monster and repeatedly asked the children, “What if I did it and I don’t remember?”
¶67 Furthermore, Wall volunteered implausible explanations for physical evidence that might connect him to the crime. Even before Uta’s body was discovered, Wall tried to explain the scratch on his eye by telling everyone that he had recently started sleeping on his porch and that his dog scratched him while he slept. No one ever saw him sleep on the porch, and no one had ever seen the dog scratch anyone. And to those who testified, the scratch to Wall’s eye looked like it was caused by a fingernail. Wall also had scratches on his arms and legs that he quickly covered up when people noticed. When interviewed by police, he was vague about the last time he had seen or touched Uta and whether he might have been in her house around the time of her death. He told the police that his cell phone was stolen from his unsecured car that same day but later asked his eldest son, “If the police found my phone [at Uta’s house] what could I say to refute that?”
¶68 Significantly, Wall offered new explanations when he knew that DNA test results were pending. When he was deposed in the wrongful death lawsuit, Wall offered a new story that would explain why his DNA might be found under Uta’s fingernails. For the first time, Wall claimed that he had not only seen Uta again after picking up the children on the night of her death, but that the two of them had gotten into an altercation and that she had struck him in the face. He also claimed that she had once tried to seduce him in her bedroom, which could explain why his DNA might be found at the crime scene. And Wall took care to mention that Uta had leaned into the back seat of his car the night before her death to give their daughter a hug, touching the part of the seat that the investigators collected to search for DNA evidence, although her DNA ultimately was not found in that sample. The jury could reasonably infer that Wall offered these explanations because he knew that the results of the DNA testing could link him to the crime.
¶69 While this summary is by no means an exhaustive review of all of the evidence supporting Wall’s guilt, it is more than sufficient to demonstrate that the jury’s verdict was supported by substantial evidence. This is not a case in which the evidence was so inconclusive or inherently improbable that it could not support a finding of guilt beyond a reasonable doubt. The State presented sufficient evidence to support the jury’s conclusion that Uta was murdered and that Wall was her murderer.
II. Admissibility of DNA Evidence
¶70 Wall next argues that the district court should have excluded the DNA evidence that was extracted from Uta’s pillowcase because “the State failed to make the threshold showing that [the forensic laboratory’s] methodology was reliable or reliably applied” under rule 702(b) of the Utah Rules of Evidence. Rule 702(b) provides that “[s]cientific, technical or other specialized knowledge may serve as the basis for expert testimony only if there is a threshold showing that the principles or methods that are underlying the testimony” are “reliable,” “based upon sufficient facts or data,” and “have been reliably applied to the facts.” Utah R. Evid. 702(b).
¶71 In applying rule 702(b), the district court “performs an important gatekeeping function, intended to ensure that only reliable expert testimony will be presented to the jury.” Gunn Hill Dairy Props., LLC v. Los Angeles Dep’t of Water & Power, 2012 UT App 20, ¶ 31, 269 P.3d 980. But this function is “limited” to “ensuring a minimal ‘threshold’ of reliability for the knowledge that serves as the basis of an expert’s opinion” and must not “displace the province of the factfinder to weigh the evidence.” State v. Jones, 2015 UT 19, ¶ 26, 345 P.3d 1195 (cleaned up). Although “the line between assessing reliability and weighing evidence can be elusive,” appellate courts “must be mindful of this important distinction because the factfinder bears the ultimate responsibility for evaluating the accuracy, reliability, and weight of the testimony.” Id. (cleaned up). “When performing their gatekeeping function, judges should approach expert testimony with rational skepticism. But the degree of scrutiny that should be applied to expert testimony by trial judges is not so rigorous as to be satisfied only by scientific or other specialized principles or methods that are free of controversy or that meet any fixed set of criteria fashioned to test reliability.” Gunn Hill Dairy Props., 2012 UT App 20, ¶ 32 (cleaned up).
¶72 Before trial, Wall moved to exclude, among other things, the DNA results from the pillowcase, arguing that he “should be excluded as a possible contributor” because some alleles were missing from the sample and because the “statistical probability” calculated by the forensic laboratory was unreliable. The district court held an evidentiary hearing to determine whether the evidence and expert testimony met the minimum threshold of reliability necessary for its admission.
¶73 At that hearing, the court heard testimony from two experts from the forensic laboratory that conducted the DNA tests and one expert for the defense. All of the experts testified to DNA composition in general and forensic DNA testing. DNA is made up of twenty-three pairs of chromosomes and is found in most cells of the human body. Twenty-two of the chromosomal pairs control non-sex traits (autosomal) and the twenty-third chromosome is sex determining—either male or female. Except for identical twins, no person has the same DNA as another person. But only one percent of human DNA differs from person to person based on short tandem repeats (STRs), which are patterns of alleles at a certain locus within human DNA. “At each given locus, you would expect to see two alleles because you get one from your mother and one from your father.” But sometimes there is only one allele at a given locus, which occurs “when you get the same [allele] from both your mother and your father.” Forensic DNA analysts focus on these patterns to discover the identity of the source of the DNA.
¶74 When conducting an autosomal STR analysis, as was done in this case, the forensic analyst targets sixteen of the individualized STR locations along the twenty-two autosomal chromosomes. There are five steps to the test: extraction, quantification (determining how much DNA was isolated at the targeted sixteen loci), amplification (creating copies of the DNA sample by splitting the DNA “ladder” down the middle and re-bonding the DNA to create a sufficient number of copies of the sample for testing), the actual testing (using florescent dye and an electrophoresis machine), and analysis.
¶75 The experts further explained that, during the testing stage, the analyst injects the DNA with fluorescent dye and runs it through an electrophoresis machine, which measures the alleles’ fluorescence in “relative fluorescence units” (RFUs). Then, a software program creates a graph of this data and shows the “peaks” of each allele (i.e., the strength of the fluorescence) at the sixteen tested loci. The peaks will appear taller or shorter depending on how much DNA is present at that allele and a taller peak means it “has more DNA.” If an allele reaches a peak of fifty RFUs, then it has reached the “analytical threshold” and the analyst can rely on that as a match of alleles on that locus between the crime-scene sample and the possible-contributor sample. If an allele’s peak is below fifty RFUs, it is unclear whether the allele represents DNA or “background noise.”
¶76 After providing this background, the analysts from the forensic laboratory (the State’s experts) then testified directly to the DNA samples and comparisons in this case. Relevant to the sample collected from the pillowcase using the M-Vac process,[4] the State’s experts found that Wall’s entire autosomal STR profile was present in that sample, but that three of the alleles were detected below the analytical threshold. Because three alleles did not meet the analytical threshold, the State’s experts followed the laboratory’s policy to conduct a second amplification test to see if the results were reproduced. The second test produced the same results,[5] and the analysts determined that Wall could not be excluded as a possible contributor because a “repeat” event “gives more credence or reliability to that event.” The State’s experts explained that a finding that a person cannot be excluded as a possible contributor does not mean that the person is an “actual” contributor. The defense’s expert disagreed with the laboratory’s policy to retest the sample and concluded that any DNA sample with an allele that does not reach the analytical threshold should amount to an exclusion of the individual as a possible contributor to the sample.
¶77 Following the hearing, the court issued a detailed written order denying Wall’s motion to exclude the evidence. The court explained that although the director of the forensic laboratory determined that there was “questionable activity” with respect to alleles on three loci within the DNA sample, it is the laboratory’s policy “not to disregard it.” Instead, the director determined that these results showed that Wall could not be excluded as a possible contributor to the DNA sample because the three loci where the alleles were recorded “below the analytic threshold at the points where [Wall’s] alleles should have been” showed that “it is possible these loci could contain” Wall’s alleles based on the results of the repeat amplification. The court found that many laboratories have similar policies and that this particular laboratory’s “policy has been subjected to third party assessment and has been approved by auditing companies and at least one previous director of the lab.” The court explained that although there was conflicting expert testimony from the State and the defense regarding the reliability of the results of this DNA sample, it was “not the court’s role to decide which expert is correct,” and the court determined that Wall’s “objection to this evidence is a matter of weight rather than reliability.” The court concluded that the State “made a threshold showing of reliability” and admitted the evidence.
¶78 On appeal, Wall asserts that the forensic laboratory’s “director . . . testified that the [laboratory’s] method of including [Wall] as a possible contributor was unreliable.” But as articulated above, the director testified that data below the analytical threshold is “not reliable” with respect to conclusively including or excluding an individual for statistical purposes, but that the laboratory is “not going to put blinders on and just completely ignore it.” This is because the presence of “some activity” or “amplification” at these loci shows that something is “detected.” The director explained that ignoring the below-threshold information with respect to certain alleles and excluding an individual as a possible contributor can make “exclusion inaccurate.”
¶79 Wall also asserts that the “State did not demonstrate that . . . [the laboratory’s] methods were reliable and reliably applied to include [Wall] as a possible contributor.” But the district court made specific findings that the laboratory’s policy against excluding a person where a possible match is detected below analytical thresholds is consistent with the practice of other laboratories and that recent audits and third-party assessments have approved this policy. The district court acted well within its discretion in relying on this evidence to conclude that the laboratory’s methods met the minimum threshold of reliability.
¶80 We therefore conclude that Wall has not shown that the district court exceeded its discretion when it admitted the DNA evidence and expert testimony under rule 702(b) of the Utah Rules of Evidence.
III. Ineffective Assistance of Counsel
¶81 Finally, Wall argues that his trial counsel was ineffective in failing to object to the prosecutors’ statements in closing argument that he asserts misconstrued the DNA evidence.[6] To prove that trial counsel was ineffective, Wall must show that trial “counsel’s performance was deficient, in that it fell below an objective standard of reasonable professional judgment,” and “that counsel’s deficient performance was prejudicial.” State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92; see also Strickland v. Washington, 466 U.S. 668, 687–88 (1984). The “failure to establish either prong of the test is fatal to an ineffective assistance of counsel claim.” State v. Torres, 2018 UT App 113, ¶ 14, 427 P.3d 550 (cleaned up). Consequently, “there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697. Here, Wall has not shown that his counsel performed deficiently.
¶82 When we review a claim of deficient performance, we “presume[] that counsel has rendered adequate assistance,” and “if the challenged act or omission might be considered sound trial strategy, we will not find that it demonstrates inadequacy of counsel.” State v. Kingston, 2002 UT App 103, ¶ 8, 46 P.3d 761 (cleaned up). “When we review an attorney’s failure to object to a prosecutor’s statements during closing argument, the question is not whether the prosecutor’s comments were proper, but whether they were so improper that counsel’s only defensible choice was to interrupt those comments with an objection.” State v. Houston, 2015 UT 40, ¶ 76, 353 P.3d 55 (cleaned up). This is because “counsel for both sides have considerable latitude in their closing arguments. They have the right to fully discuss from their perspectives the evidence and all inferences and deductions it supports.” Id. (cleaned up). “Moreover, a prosecutor has the duty and right to argue the case based on the total picture shown by the evidence.” Id. (cleaned up). Through this lens, we review the three points in the State’s closing arguments to which Wall claims any reasonably competent trial counsel would have lodged an objection.
¶83 First, Wall challenges a statement made by the prosecutor in the first part of the State’s closing arguments. The prosecutor stated, “We have male DNA being found under [Uta’s] right-hand fingernail clippings. I would submit to you it was as if [Uta] was standing in this courtroom and pointing to [Wall] as her killer.” Wall argues that this statement violated the court’s order related to DNA evidence, which informed the parties that they could not use the DNA evidence to show conclusively that he was the contributor to the DNA, and therefore trial counsel was deficient in failing to object to it. The prosecutor correctly noted that male DNA was found under Uta’s fingernail, not that Wall’s DNA was underneath her fingernail, but essentially told the jury that the reasonable inference was that Wall’s DNA was under Uta’s fingernail. Assuming without deciding that this statement was improper, trial counsel may have based his decision to forgo an objection on sound trial strategy, choosing instead to undermine the State’s characterization of the fingernail-DNA evidence in his own closing argument.[7] This is exactly what trial counsel did. Trial counsel argued that the DNA evidence was “just meaningless,” it “doesn’t prove anything” because Wall was excluded as a possible contributor to some of the DNA samples, the DNA test results were “unreliable,” and the DNA evidence “doesn’t put [Wall] in [Uta’s] house.” We therefore conclude counsel was not deficient in failing to object to the State’s characterization of the fingernail-DNA evidence. See State v. King, 2012 UT App 203, ¶ 14, 283 P.3d 980 (explaining that counsel performs deficiently only where there is no “conceivable tactical basis for counsel’s actions” (cleaned up)).
¶84 Next, Wall argues that in the State’s rebuttal closing argument, the prosecutor improperly told the jury that it was in a better position to determine Uta’s cause of death because the medical examiner who wrote the report “didn’t know about all the DNA work” and that counsel should have objected to that statement. The challenged statement was a direct response to statements made by Wall’s trial counsel in his closing argument. Specifically, Wall’s counsel made the following argument:
Here’s the part you guys have been waiting for, the conclusion. There’s been a lot of evidence introduced here. And we’ve heard a lot of evidence about the relationship of two people, about their lives, their mental states, their problems. You’ve heard a lot of evidence about forensics, about shoe identification, blood stains and pathology. But the most critical testimony in this case, the most critical input came from the state medical examiner.
He went on to explain that the medical examiner’s testimony was key because it “indicated that [Uta’s death] was either a homicide or suicide” and that the medical examiner’s “opinions were affected by the presence of Xanax in [Uta’s] body.” The defense theory was that the medical examiner’s inability to conclude one way or the other “establishe[d] reasonable doubt.”
¶85 In rebuttal, the prosecutor opened with the following response:
I’d like to start first with the last thing that was said [in trial counsel’s closing argument], the critical piece of evidence was the medical examiner. And I want you to remember what the medical examiner said because you all have a better position than he did when he wrote that report. He said he didn’t have [Uta’s] medical and mental health records. He didn’t know about all the DNA work. He didn’t know about all the witnesses that [testified]. You, ladies and gentlemen, know more about this case than he did when he wrote his report . . . . You know everything. You know all the witnesses who said she was not suicidal, that she didn’t do this. And so you can confidently find this individual guilty.
¶86 The prosecutor’s statement that the medical examiner “didn’t know about all the DNA work” is an accurate characterization of the evidence. The medical examiner testified that he did not have all of Uta’s medical records, all of the police reports or witness statements, the crime scene reconstructionist’s report, the bloodstain expert reports, or “any of the DNA reports that had been done.” Moreover, the prosecutor’s statement did not suggest, as Wall claims, that the DNA evidence alone conclusively established that Uta had been murdered. Instead, the prosecutor pointed to “everything” the jury heard during the trial that the medical examiner did not know, including not just the DNA evidence, but also information about Uta’s medical and mental health records and the testimony of numerous witnesses offered during the four-week trial. In context, the prosecutor’s argument neither misstated the evidence nor overemphasized the importance of the admittedly inconclusive DNA evidence. As a result, any objection made by trial counsel to this statement would have been futile and did not constitute deficient performance. See State v. Perez-Avila, 2006 UT App 71, ¶ 7, 131 P.3d 864 (“It is well settled that counsel’s performance at trial is not deficient if counsel refrains from making futile objections, motions, or requests.”).
¶87 Wall also argues that trial counsel should have objected to the prosecutor’s statements about DNA found on Uta’s comforter. One of the forensic laboratory’s analysts testified that the laboratory collected DNA using different methods on five areas of Uta’s comforter and submitted them for testing. Four of the test results either excluded Wall or were inconclusive for male DNA. The fifth test included Wall as possible contributor. The analyst also conceded on cross-examination that, based on the results of the test, all four children’s alleles are accounted for [and Wall’s] alleles are accounted for” in that sample. Wall contends that the prosecutor erroneously “insisted the DNA must be from [Wall] rather than the Wall children” because the State mischaracterized how the DNA samples were collected from the comforter when it said that the DNA came from “pinpoint location[s].”
¶88 As an initial matter, we note that trial counsel moved to exclude all of the DNA evidence prior to trial based on “inaccurate statistical evidence for DNA mixtures” but later withdrew that motion with respect to the DNA collected from Uta’s comforter. Trial counsel chose instead to advance the theory at trial—through the defense’s own expert testimony and through cross-examination of the State’s experts—that there was a “possibility of all of the children being [contributors]” to some of the DNA samples, including the comforter, and therefore “it’s impossible to determine if [Wall’s] DNA is in that sample.” Trial counsel reiterated this point in closing argument:
Now [the State] is probably going to talk to you about if [Wall’s] and [Uta’s] allele charts are both present, if their genetic patterns are both there, then all the kids are going to be there too. Use your common sense. You have four kids living in the house and [Uta] living in the house . . . . Whose DNA is going to be on the comforter? The people living in the house.
. . . .
And if you remember the hypothetical that I gave to [the State’s expert] that if all the children used the towel when they’d been out hiking or sweating and had DNA placed in the towel . . . to a sufficient degree that it could be tested, that even if [Wall] was in Australia, . . . he would be found to be a possible contributor.
¶89 In the State’s rebuttal closing argument, the prosecutor reminded the jury that the two eldest children testified they had “never been on [Uta’s] bed for a long time . . . [s]o their DNA won’t be there.” He also said that the DNA was not “all over the comforter” and was instead at “a very pinpoint location.” He further explained:
That’s where you are going to find [Wall’s] DNA. And it’s not going to be because the children were there, because you need to have all four children to be on that same spot. And you’re going to tell me that at these particular locations all four children went and equally touched that spot to make that combination? That’s ridiculous. The more likely and the real reasonable is that one person touched it, and it’s [Wall].
¶90 It is unclear why trial counsel would be deficient for failing to object to the very argument that he forecasted for the jury in his own closing argument. Trial counsel had already presented a counterargument to the State’s theory by providing the jury an alternative explanation for why certain DNA samples could have included Wall’s DNA without Wall having ever touched the relevant items. And trial counsel reiterated at many points throughout trial and in closing argument that the DNA evidence was “meaningless” because Wall was excluded as a possible contributor to some of the DNA samples and that he should have been excluded as a possible contributor to other DNA samples because the laboratory’s methods were “unreliable.” Trial counsel’s strategy related to this DNA evidence was clear, and his strategic decision not to object to the State’s alternative characterization of this same evidence was not deficient.
¶91 Further, any objection to the prosecutor’s statement would have been futile. See Perez-Avila, 2006 UT App 71, ¶ 7. Just as trial counsel was free to argue that it was more reasonable that the children’s DNA had combined on the comforter to create a sample that happened to be consistent with Wall’s DNA, the State was free to argue that it was more likely that a single person, Wall, was the contributor. See Houston, 2015 UT 40, ¶ 76 (recognizing that “counsel for both sides have considerable latitude in their closing arguments,” that “they have the right to fully discuss from their perspectives the evidence and all inferences and deductions it supports,” and that the State has “the duty and right to argue the case based on the total picture shown by the evidence” (cleaned up)).
¶92 Relatedly, Wall has not persuaded us that trial counsel was deficient in failing to object to the prosecutor’s statement that the DNA was extracted at a “pinpoint location” and that all of the children would have had to touch that exact spot. The State’s expert testified that the DNA was collected via M-Vac only on the locations where there were bloodstains. Thus, the samples were not drawn from the entire comforter, as Wall suggests. And trial counsel could have reasonably determined that objecting would have been futile and would have drawn greater attention to that evidence. See Perez-Avila, 2006 UT App 71, ¶ 7; see also State v. Ott, 2010 UT 1, ¶ 39, 247 P.3d 344 (noting “that avoidance of drawing the jury’s attention to certain facts or over-emphasizing aspects of the facts is a well recognized trial strategy”).
¶93 “The object of an ineffectiveness claim is not to grade counsel’s performance.” Strickland v. Washington, 466 U.S. 668, 697 (1984). Instead, we “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689. In this case, Wall has not shown “that the challenged actions cannot be considered sound strategy under the circumstances.” See State v. Torres, 2018 UT App 113, ¶ 16, 427 P.3d 550 (cleaned up).
CONCLUSION
¶94 We conclude that there was sufficient evidence to support Wall’s murder conviction. We further conclude that the district court did not exceed its discretion in admitting certain DNA evidence because the State made the threshold showing that the forensic laboratory’s methods and policies were reliable. Finally, Wall has not persuaded us that his trial counsel performed deficiently in failing to object to certain parts of the State’s closing arguments because the State did not mischaracterize the evidence and the arguments fairly responded to the theories argued by the defense.
¶95 Affirmed.
Utah Family Law, LC | divorceutah.com | 801-466-9277
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[1] “This court typically does not include the names of crime victims, witnesses, or other innocent parties in its decisions. We make an exception in this case due to the considerable notoriety this criminal episode has attracted. The [victim’s] identity is well known, and obscuring her identity in this decision would serve no purpose.” State v. Chavez-Reyes, 2015 UT App 202, ¶ 2 n.2, 357 P.3d 1012. Additionally, although we generally refer to relevant parties by their last names, we will refer to the victim in this case as Uta because that is how all of the witnesses referred to her at trial.
[2] Wall claimed to have told Uta’s father, but Uta’s father had died before Uta and therefore could not corroborate this claim.
[3] On appeal, Wall makes much of the fact that the autopsy report did not document any changes to Uta’s skin, known as “washerwoman syndrome,” from having been immersed in water for a long period of time. Wall argues that the absence of such evidence conclusively proves that Uta’s death occurred shortly before her body was found in the evening rather than during the early morning hours when Wall had no alibi. But the medical examiner testified that, although he did not note washerwoman changes in his report, he had not been looking for them because the death had not been presented as a possible homicide. And there was conflicting testimony from defense and State experts about whether washerwoman changes could be seen in the autopsy photographs. The jury could reasonably conclude that the apparent absence of washerwoman syndrome was entitled to less weight than the defense believed it deserved.
[4] According to expert testimony, “[a]n M-Vac is basically like a DNA wet vac[uum]” that has a “buffer” in it that will not degrade or harm the DNA sample. The M-Vac soaks the targeted area and then “sucks up the liquid.” The liquid is “run through a series of filters” to extract the DNA from the targeted area for forensic analysis.
[5] One of the alleles that was above the analytical threshold in the first test was below the threshold in the second test. But the State’s experts explained in great detail why this could occur and why it did not undermine their confidence in that allele.
[6] In his opening brief, Wall argued that trial counsel was also ineffective for failing to object to certain statements elicited on direct examination of the State’s expert witnesses. But at oral argument, appellate counsel conceded that “the issue about the DNA is all about closing argument and closing argument only.” This court asked the clarifying question, “Your [ineffective assistance of counsel claim] is failure to object during closing arguments, not the failure to object during the expert testimony?” And appellate counsel responded, “That’s right.” We therefore do not address whether trial counsel was ineffective for failing to object during direct examination of the State’s expert witnesses.
[7] At oral argument, this court asked, “Why wouldn’t it be reasonable to wait and rebut the prosecutor’s statements during the defense’s closing argument rather than object?” And appellate counsel responded, “So far I’m with you,” apparently conceding that failing to object to this statement alone was not sufficient to establish deficient performance.