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

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

THE UTAH COURT OF APPEALS

IN THE MATTER OF THE ADOPTION OF P.P., A PERSON UNDER EIGHTEEN YEARS OF AGE.

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

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

The Honorable Kara PettitNo. 222900323

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

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

OLIVER, Judge:

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

BACKGROUND

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

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

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

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

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

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

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

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

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

ISSUE AND STANDARD OF REVIEW

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

ANALYSIS

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

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

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

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

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

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

¶18 We fail to see how this testimony from Father’s family members would have changed the court’s conclusion that statutory grounds for termination existed and that termination was in Phoebe’s best interest. Thus, even were we to grant a remand to Father, he would be unable to show that Counsel’s failure to call these witnesses prejudiced him. And without a showing of prejudice, his ineffective assistance claim would fail. See In re D.R., 2022 UT App 124, ¶ 16 (noting a parent must show “both (1) that counsel’s performance was deficient and (2) that [the parent] suffered prejudice as a result” (emphasis added) (cleaned up)). Accordingly, we deny Father’s request for remand. Cf. State v. Griffin, 2015 UT 18, ¶ 20, 441 P.3d 1166 (stating that, in the rule 23B context, “[i]t stands to reason that if the defendant could not meet the test for ineffective assistance of counsel, even if his new factual allegations were true, there is no reason to remand the case, and we should deny the motion”).

CONCLUSION

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

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


[1] We employ a pseudonym for the child.

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

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

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How Do Witnesses Contribute to the Decision-Making Process in Child Custody Hearings and Trials?

If what we learn from witnesses didn’t generally tend to be more informative and reliable than not, then we wouldn’t listen to witnesses at all. No sensible person believes that which he or she knows not to be true, and as long as we don’t know a witness is lying or have reason to believe the witness is lying, we normally benefit from believing what a competent witness says as true.

So, the qualifiers for a good witness or someone who is competent to testify and someone who does not give us any apparent reason to believe the witness is a liar or has any other motive but to tell the truth as the witness perceives it.

Good witnesses in child custody proceedings are witnesses who have personal knowledge of facts that are relevant to the child custody award. Bad witnesses are just the opposite. If the witness convinces us that he or she has such personal knowledge, the court will almost certainly consider that witness’s testimony in formulating its child custody award decision.

Generally speaking, it’s difficult for lying witnesses to get away with lying to the court. Inexperienced liars often (but not always) give themselves away. How? Some ways include: telling unbelievable and inconsistent stories, giving testimony that is clearly biased in favor of one party or clearly biased against the other party, giving testimony that clearly is rehearsed or comes across as rehearsed and not from personal knowledge and easy, confident recall.

Of course, if it weren’t possible to fool people into believing lies, very few lies would be told. Many judges and court personnel (not all, but more than you might suspect) mistakenly believe that they have an above average ability to detect lies. This thus sometimes results in judges accepting as true testimony that is false, and deeming to be false testimony that is true.

This is why lawyers tend to favor objectively verifiable fact over witness testimony, or at least over witness testimony alone, if and when it’s ever possible to provide such independently verifiable objective fact as evidence in a case.

But in child custody cases, given the predominantly private nature of family life, it is hard to prove objectively that a parent has been physically, sexually, or emotionally abusive, physically or emotionally neglectful, an alcohol abuser, mentally or emotionally crippled, a parent who truly cares about his or her children and has formed a strong loving bond with his slash her children, etc.

And so, the next best thing that we have is witness testimony. Not all witness testimony is created or treated equally. If a parent calls his own mother or father or best friend as a witness for that parent, the court is likely to believe or at least suspect—and in my opinion, rightfully so–that such a witness is biased. That such a witness will be likely to downplay (or outright deny) the parents weaknesses and sins and exaggerate (or outright fabricate) the parent’s virtues and accomplishments.

Witnesses who are perceived as most credible are those who don’t appear to have any personal interest in the outcome of the case. People who have nothing to gain or nothing to lose by giving their are honest account and opinions.

For better or for worse, witnesses do inform the judge’s child custody award decision. It’s always frustrating, even sometimes heartbreaking, when a judge believes lying witnesses and disbelieves honest witnesses (and then decides issues based upon false data), but no judge is infallible. The more you can rely upon objective, independently verifiable fact over witness testimony, the better.

 

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

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How Long Does a Child Custody Court Hearing Take?

rprise that it usually takes much less time and effort to prepare for a proffer hearing than preparing for a full evidentiary hearing. In a proffer hearing the client won’t do much, if anything, during the actual hearing, with the exception of perhaps providing the occasional clarifying answer if the court asks them. No witnesses are called to testify in hearing conducted by proffer; instead, their testimony is provided by affidavit or verified declaration.

If you are unsure if your upcoming hearing will be a proffer or evidentiary hearing, ask your attorney. It could be catastrophic for your case if you show up at court believing the hearing is a proffer hearing when it’s a full-blown evidentiary hearing.

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

https://www.quora.com/How-long-does-a-child-custody-court-hearing-take/answer/Eric-Johnson-311

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Are there experts who can evaluate parental alienation for a custody case?

There are “expert” witnesses for virtually any and every issue in legal actions. 

Can judges be bamboozled by pseudo-scientific expert witnesses? Without question. 

Do some judges who know that the so-called expert witness’s testimony is pseudo-scientific bunk (or at least know that the opinion has dubious scientific grounding) yet justify the ruling the judge wants to make by citing to those pseudo-scientific opinions? Without question. 

So your question really should be, “Are there competent expert witnesses who can objectively prove my spouse/the other parent is alienating our child(ren) from me?” The answer to that question is, in my opinion, “no.” 

Other questions you should ask (and their answers, in my opinion): 

  • “Are there competent expert witnesses who can make a persuasive case for the argument that my spouse/the other parent is alienating our child(ren) from me?” The answer to that question is “yes.” 
  • “Are there incompetent expert witnesses who can make a persuasive case for the argument that my spouse/the other parent is alienating our child(ren) from me?” The answer to that question is “yes.” 
  • “Are judges generally receptive to the concept (much less the actual occurrence) of parental alienation, and are they generally willing to hold a parental alienator accountable?” The answer to that question is “Some judges will acknowledge that parental alienation exists, but even then the amount and quality of evidence needed to persuade a judge that parental alienation occurred or is occurring is very high, in many cases unobtainably high.” 
  • “Will proving the occurrence of parental alienation help me obtain court orders to protect my children from further alienation and psychological/emotional abuse?” The answer to that question is “maybe.” Some judges take a bizarre approach to proof of parental alienation, i.e., it is clear that [parent] has alienated the child(ren) from [other parent], but if I were to take the children away from the alienator or impose sanctions/restriction/monitoring/supervision on the alienator, then the alienated kids (who side with the alienator because they have been exploited and manipulated and abused) would suffer (i.e., suffer in the process of treating and reversing the alienation brainwashing and being restored to reality), so I am going to leave things be “for the sake of the children.” 

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

https://www.quora.com/Are-there-experts-who-can-evaluate-parental-alienation-for-a-custody-case/answer/Eric-Johnson-311 

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What are the Steps for Getting Divorced in Utah?

What are the Steps for Getting Divorced in Utah?

To start the divorce process, you must begin by filing what is called a complaint or a petition for divorce with the court. This means you are suing your spouse for a divorce. Don’t let the term “suing” frighten you or your spouse. “To sue” means to institute legal proceedings against your spouse. That’s all.

Then your complaint or petition for divorce is served on (or officially delivered to) your spouse, usually by a law enforcement officer or a private process server. You can also waive personal service by a law enforcement officer or process server and just accept service by signing a simply accepting the documents without the need for personal service.

If you and your spouse agree to the terms of your divorce, also known as an “uncontested divorce,” the issue of “service of process” doesn’t come up because you submit voluntarily to the jurisdiction of the court by signing and filing with the court your divorce settlement agreement and other documents that indicate you recognize you are subject to the to the jurisdiction of the court.

If you’re the one seeking a divorce and the one who filed for divorce, your spouse has 21 days to respond to the complaint for divorce or 30 days to respond if your spouse is served outside of the state of Utah.

The name for the response to a complaint for divorce is an “answer”. If you wish to countersue your spouse for divorce after you get served with a petition or complaint for divorce, you can file an “answer and counterclaim”.

How the case proceeds from this point could take various routes:

  • At any point during the pendency of the case, as long as the trial has not concluded and the court issued its decree and orders, you and your spouse can reach a settlement agreement.
  • After the complaint and answer or answer and counterclaim are filed, the parties have to exchange some initial financial information and information about the evidence each party has and what witnesses the parties might call to testify at trial.
  • Then the parties have 180 days to conduct discovery. The purpose of discovery is to obtain facts and information that will reveal the truth in a matter and help both parties and the court determine what’s truly in dispute and what is not. After discovery closes, then the case is almost ready to take to trial, but not quite.
  • Before a divorce case can go to trial in Utah the parties must first to go mediation and try to settle the case (if the parties don’t want to go to mediation they can ask the court to waive the mediation requirement “for good cause,” but it’s not easy to get the court to find good cause to waive mediation. Most couples go to mediation, even if they think it won’t work, if for no other reason than to check the “we went to mediation” box, so that they can get to trial.
  • After discovery closes and mediation is completed, either party can certify the case as read for trial.
  • Then the court schedules one or more pretrial conferences to prepare for trial, set a trial date, the number of day the trial will take, and other matters.
  • After trial, the court can take up to 60 days to issue its decision on the case, after which one of the parties’ respective attorneys is ordered to prepare the Decree of Divorce for the court’s signature.

That’s the Utah divorce process in a nutshell.

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

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My parents filed an order of protection against me. Is there any way I can fight this at age 17 knowing that I’ve done no wrong?

My parents filed an order of protection against me. Is there any way I can fight this at age 17 knowing that I’ve done no wrong?

Your experience may be different, but welcome to what may be an experience that causes you to lose faith in the legal system. You are significantly at your parents’ and the system’s mercy.

The likely first strike against you: given your age, you can be treated much like an adult when it comes to penalties yet denied the freedom to present your case as you wish because of your status as a minor child.

The second strike against you: courts generally do not like hearing from children in almost any law suit and go out of there way to curtail their participation. Now in fairness, in may instances this is intended to protect children and in many instances it does have that effect. In other instances, however, it serves to do nothing but muzzle a child, denying him/her the full capacity to defend himself/herself or express his/her concerns, fears, and desires. The testimony and/or arguments of children, merely on the basis of their being children, are often dismissed as not competent or credible witnesses.

The third strike is that you’re a wild, scary 17-year-old child, boiling with hormones and irresponsibility, which makes it very easy 1) not to be taken seriously; and 2) to be on the receiving end of prejudice, especially when your parents accuse you of being a danger to them.

Bottom line: to say, “Trying to go it alone as a child in court is difficult” is a ridiculously glaring understatement. The unquestionably best thing you can do for yourself is to get a skilled lawyer of your choice, if you can, to defend you within the legal system and to protect you from the vagaries of the legal system. Nothing else will 1) do you and your case more good and 2) better improve your odds of being treated fairly.

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

https://www.quora.com/My-parents-filed-an-order-of-protection-against-me-Is-there-any-way-I-can-fight-this-at-age-17-knowing-that-I-ve-done-no-wrong/answer/Eric-Johnson-311

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