In re S.S. , 2015 UT App 230 ( 2015 )

2015 UT App 230THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF S.S. AND A.S.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
S.E.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20140055-CA
Filed September 11, 2015
Sixth District Juvenile Court, Manti Department
The Honorable Paul D. Lyman
No. 1070937
Paul D. Dodd and Aaron P. Dodd, Attorneys
for Appellant
Sean D. Reyes and John M. Peterson, Attorneys
for Appellee
Martha Pierce, Guardian ad Litem
JUDGE JOHN A. PEARCE authored this Opinion, in which JUDGE
STEPHEN L. ROTH concurred. JUDGE MICHELE M. CHRISTIANSEN
concurred, with opinion.
PEARCE, Judge:
¶1 S.E. (Mother) appeals from the juvenile court’s order
terminating her parental rights in her two boys, A.S. and S.S.
Mother argues that she received ineffective assistance from her
counsel at the termination trial and that the juvenile court failed
to adequately inquire into the reasons for her expressed
dissatisfaction with counsel. We agree that Mother received
In re S.S.
ineffective assistance of counsel. We reverse the juvenile court’s
termination order and remand for further proceedings.
BACKGROUND
¶2 This appeal concerns Mother’s right to parent A.S., born
in July 2010, and S.S., born in June 2012. As of early 2012, Mother
lived with A.S. and his father (Father).1 Mother’s two older
children from a prior relationship, P.P. and S.P., also lived in the
home.2
¶3 In May 2012, while Mother was jailed in an unrelated
case, Father became upset at P.P. for ‚being disrespectful‛ to an
uncle. During this episode, Father grabbed P.P. by the arm and
hit him, causing ‚bruises and scratches on *P.P.’s+ right forearm
and scratches on both sides of his neck.‛ Father also threw a beer
can at P.P. and spat on him. The next day, while P.P. was at
school, a teaching assistant noticed and reported the bruising
and scratches. In response, the Division of Child and Family
Services (DCFS) requested, and the juvenile court issued, a
warrant to take P.P. and S.P. into protective custody. A.S. was
placed in the care of relatives. The juvenile court adjudicated the
three children as abused or neglected. After S.S. was born in June
2012, he was found to be a sibling at risk. Upon Mother’s release
from jail, the children were returned to her custody, subject to
protective supervision services provided by DCFS.
¶4 Mother initially responded fairly well to those services.
But by the fall of 2012, Mother had become non-compliant with
1. Father is also the parent of S.S.
2. P.P. and S.P. were placed in Iowa with their biological father
during the pendency of this proceeding and are not the subject
of this appeal.
20140055-CA 2 2015 UT App 230In re S.S.
DCFS’s supervision services. Mother was also jailed again. The
juvenile court ordered P.P. and S.P. to be placed in the custody
of their biological father in Iowa and ordered DCFS to take
custody of A.S. and S.S. A.S. and S.S. were subsequently placed
in a non-kinship foster home.
¶5 In January 2013, after Mother was released from jail, she
moved to Iowa to be with P.P. and S.P. During the first few
months of 2013, Mother called A.S. and S.S. only four times.3
Mother did not maintain regular contact with DCFS, although
the record reflects that in March 2013 she demanded that DCFS
return A.S. and S.S. to her. During this time, Mother apparently
had no contact with her appointed counsel in this matter (Trial
Counsel).4
¶6 In April 2013, the juvenile court held a hearing to
determine A.S. and S.S.’s placement. Mother did not attend the
hearing. Trial Counsel was present. At the conclusion of the
hearing, the juvenile court placed A.S. and S.S. in a foster home
in Wyoming with foster parents that are relatives of Father.
¶7 Between April and July 2013, Mother remained in Iowa
and did not visit A.S. and S.S. During this time, Mother was also
arrested for theft in Iowa. She did not call A.S. and S.S. at all in
April or May, but by June she began calling them more often.
Between June 10 and August 14, Mother called A.S. and S.S. at
least eight times, or almost once a week. During this period,
DCFS had difficulties contacting Mother by phone and
considered her to be non-compliant with its reunification efforts.
3. DCFS had apparently recommended that Mother call A.S. and
S.S. twice a week.
4. Trial Counsel had also represented Mother in her unrelated
criminal matters.
20140055-CA 3 2015 UT App 230In re S.S.
¶8 In July 2013, the juvenile court conducted a review
hearing; Mother participated telephonically. Despite Mother’s
assertions that she had been calling A.S. and S.S. and attempting
to comply with DCFS’s requirements, the juvenile court
terminated reunification services and changed the permanency
goal for A.S. and S.S. to termination of Mother’s and Father’s
parental rights and adoption. At the July hearing, Mother
expressed dissatisfaction with Trial Counsel, stating that she was
trying to obtain a different lawyer because Trial Counsel ‚hasn’t
been doing a lot.‛
¶9 In August 2013, the State filed a petition to terminate
Mother’s parental rights. The petition alleged multiple grounds
for termination, including abandonment, neglect, lack of
parental adjustment, and failure to remedy the circumstances
that led to A.S. and S.S.’s out-of-home placement. The petition
contained no allegation that Mother had ever abused A.S. or S.S.
Rather, all of the grounds for termination flowed directly or
indirectly from Mother’s absence from A.S. and S.S.’s lives.
¶10 The juvenile court set November 2013 as the date for the
termination of parental rights trial. Mother participated
telephonically in two pretrial hearings during September and
October. At the October hearing, she stated to the juvenile court
that she was in the process of retaining different counsel,
explaining that Trial Counsel ‚hasn’t really done anything to
help me on this case *and all+ he’s really actually done is hurt my
case.‛
¶11 Trial was held on November 12, 2013. Mother
participated by phone. Trial Counsel was present in person. At
the beginning of the trial, Trial Counsel informed the juvenile
court that he had received a fax from Mother that morning
‚asking for a continuance on this case so she can seek better
counsel, since her lawyer isn’t doing anything at all.‛ In
response to the juvenile court’s questioning, Mother explained
20140055-CA 4 2015 UT App 230In re S.S.
that she had recently obtained the funds she needed to retain
new counsel. The juvenile court denied the request for a
continuance on timeliness grounds without inquiring into the
reasons for Mother’s dissatisfaction with Trial Counsel.5
¶12 Trial then commenced. Trial Counsel made no opening
statement on Mother’s behalf. After its opening statement, the
State began submitting documentary exhibits. After the State
offered its third exhibit, Trial Counsel announced, ‚Your Honor,
I have seen all the exhibits. I have no objection to any of
them. . . . [T]he Court would accept them no matter whether
there was an objection or not.‛ The juvenile court responded,
‚Not necessarily. If you want to make [an objection], make one.‛
Trial Counsel remained silent as DCFS submitted its remaining
exhibits, thirty-six in total, and confirmed at the end of the
process that he had no objections.
¶13 At trial, the State called Mother’s DCFS case worker and
A.S. and S.S.’s Wyoming foster mother. The case worker testified
about Mother’s sporadic communications with A.S. and S.S.,
Mother’s failure to stay in contact with DCFS, and Mother’s
failure to comply with DCFS’s reunification requirements. Trial
Counsel raised no objections during the case worker’s testimony.
Trial Counsel then declined to cross-examine the case worker.
¶14 The foster mother testified about her relationship with
A.S. and S.S. and Mother’s communications with them. Trial
Counsel remained silent during the foster mother’s testimony,
except when the foster mother offered testimony concerning
5. Even though Mother had told the juvenile court at the July
and October hearings that she was attempting to retain different
counsel, the court stated that Mother had ‚not mentioned
changing attorneys until today.‛ Trial Counsel did not bring this
factual inaccuracy to the juvenile court’s attention.
20140055-CA 5 2015 UT App 230In re S.S.
pictures of A.S. and S.S. at her home. At this point, Trial Counsel
volunteered that he was ‚willing to stipulate that *A.S. and S.S.+
look cute and they’re happy in the home.‛ Trial Counsel also
commented to the foster mother, ‚And you do a very excellent
job with the camera.‛ Trial Counsel did not raise any objections
to the foster mother’s testimony and again declined to conduct
cross-examination. The State then rested its case.6
¶15 The juvenile court asked Trial Counsel if there was
anything he would like to present, and Trial Counsel responded,
‚No, your Honor.‛ The juvenile court then asked Mother if she
had anything to say. Mother made a brief statement to the court.
Mother began trying to explain that she maintained telephone
contact with A.S. and S.S., that she had a suitable home for them
in Iowa and was working, and that her children should never
have been placed in Wyoming. Trial Counsel did not conduct a
direct examination to help Mother present her version of events
to the juvenile court. Instead, the State, then the guardian ad
litem (the GAL), cross-examined Mother.
¶16 Trial counsel raised no objections during Mother’s cross-
examination, during which Mother admitted that she had not
seen A.S. and S.S. for close to a year. Mother also testified that
she ‚*did not] have the means to come out and see them,‛ that
she was expecting them to be sent to her in Iowa under the
6. After the State rested, the juvenile court briefly questioned
A.S. and S.S.’s foster father, who stated that he agreed with the
foster mother’s testimony. Trial Counsel did not cross-examine
the foster father.
20140055-CA 6 2015 UT App 230In re S.S.
‚interstate compound,‛ and that she currently lived in a large
house that was suitable for A.S. and S.S.7
¶17 After the State and the GAL finished their questioning,
Trial Counsel finally decided to question Mother. However,
rather than attempt to elicit favorable testimony from Mother or
otherwise rehabilitate her case, Trial Counsel questioned Mother
regarding her lack of communication with him. When Mother
responded that she had tried to call Trial Counsel ‚a few times,‛
Trial Counsel asked her, ‚What were the dates that you tried to
call my office?‛ Mother thought she had called Trial Counsel in
February, March, and June, and on the day of trial, but had not
received return calls. Trial Counsel then asked if Mother had
ever written him to inform him of her address. Mother
continued to focus on the phone calls, stating, ‚I never got any
return phone calls from you, actually. Like even when—you
never even cross examined the witnesses, let alone—‛ Trial
Counsel cut her off, stating, ‚Nothing further. There’s no sense
in it, Judge.‛
¶18 The juvenile court then called for closing arguments,
beginning with Trial Counsel. Trial Counsel responded,
‚Nothing to argue, Judge.‛ The State and the GAL also
submitted the matter without closing argument, and the juvenile
court issued its oral ruling terminating Mother’s parental rights.
At the close of its ruling, the juvenile court again inquired if Trial
Counsel had anything to add. Trial Counsel responded that he
did not. Once the juvenile court turned to the scheduling of a
review hearing, Trial Counsel inquired, ‚Your honor, am I
released?‛ In response, the State indicated that Trial Counsel
7. Mother’s repeated references to the ‚interstate compound‛
apparently refer to the Interstate Compact on the Placement of
Children. See Utah Code Ann. §§ 62A-4a-701 to -710 (LexisNexis
2011) (governing the placement of children between states).
20140055-CA 7 2015 UT App 230In re S.S.
would likely need to continue to represent Mother through the
possible initiation of an appeal, but the juvenile court released
Trial Counsel from attending the review hearing.
¶19 Mother now appeals the juvenile court’s order
terminating her parental rights to A.S. and S.S.8
ISSUE AND STANDARD OF REVIEW
¶20 Mother argues that Trial Counsel failed to provide her
with the effective assistance of counsel to which she was entitled.
See In re E.H., 880 P.2d 11, 13 (Utah Ct. App. 1994) (holding that a
parent’s statutory right to counsel in termination proceedings
guarantees the right to effective counsel). ‚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. Because we resolve this appeal on Mother’s ineffective
assistance of counsel argument, we do not reach her argument
that the juvenile court erred in failing to adequately inquire into
her dissatisfaction with Trial Counsel at the termination hearing.
See In re C.C., 2002 UT App 149, ¶ 10, 48 P.3d 244 (imposing duty
on juvenile court to inquire into a parent’s expressed
dissatisfaction with appointed counsel during termination
proceedings).
8. We note that Trial Counsel apparently failed to assist Mother
with this appeal. Mother initiated this appeal with a pro se letter.
The untimeliness of Mother’s letter nearly led to the dismissal of
this appeal, but the juvenile court extended Mother’s time to
appeal after finding a breakdown in communication between her
and Trial Counsel. The juvenile court also appointed new
counsel, who has briefed and argued the appeal on Mother’s
behalf.
20140055-CA 8 2015 UT App 230In re S.S.
ANALYSIS
¶21 ‚The benchmark for judging any claim of ineffectiveness
must be whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial cannot be
relied on as having produced a just result.‛ Strickland v.
Washington, 466 U.S. 668, 686 (1984); see also In re E.H., 880 P.2d at
13 (adopting the Strickland test to determine a claim for
ineffective assistance of counsel in proceedings involving
termination of parental rights). Here, Mother argues that Trial
Counsel’s failure to represent her interests at the termination
trial fell below reasonable professional standards and
significantly undermined the reliability of the trial process. We
agree.
¶22 To establish that she is entitled to a new trial based upon
Trial Counsel’s ineffective assistance, Mother ‚must show that
counsel’s performance was objectively deficient and that
counsel’s deficient performance prejudiced the case.‛ In re E.H.,
880 P.2d at 13. ‚[T]he proper standard for attorney performance
is that of reasonably effective assistance,‛ Strickland, 466 U.S. at
687, and to demonstrate deficient performance, Mother must
show that Trial Counsel’s representation ‚fell below an objective
standard of reasonableness,‛ id. at 688.
¶23 Mother has shown that Trial Counsel’s performance at
trial was objectively deficient.9 Trial Counsel failed to make an
opening argument summarizing Mother’s case against
termination, failed to cross-examine the State’s witnesses, failed
to present evidence in Mother’s favor through Mother’s
testimony or otherwise, and declined to make a closing
9. Mother also complains that Trial Counsel did nothing to assist
her prior to the termination trial. We examine only Trial
Counsel’s performance at trial.
20140055-CA 9 2015 UT App 230In re S.S.
argument with the comment that there was ‚*n+othing to argue.‛
Trial Counsel’s only affirmative actions at trial were (1) telling
the juvenile court that he would not object to the admission of
documents because the court ‚would accept them no matter
whether there was an objection or not‛; (2) stipulating that
pictures taken by the foster mother showed that A.S. and S.S.
were ‚happy in the *foster+ home,‛ as well as complimenting the
foster mother’s photography skills; and (3) questioning Mother’s
credibility about her allegations that he had not communicated
with her prior to trial.
¶24 The trial transcript reveals that Trial Counsel simply
remained silent except when he was declining to act on Mother’s
behalf, registering non-objection or stipulation to the State’s
evidence,10 or examining Mother.11 Trial Counsel’s ‚willful
disregard for *Mother’s+ case cannot possibly be construed as
sound strategy‛ and ‚falls far ‘below an objective standard of
reasonableness.’‛ Menzies v. Galetka, 2006 UT 81, ¶ 96, 150 P.3d
480 (quoting Strickland, 466 U.S. at 688). Rather, we can only
characterize Trial Counsel’s performance at trial as an
‚abdication of advocacy.‛ Menzies v. State, 2014 UT 40, ¶ 183, 344
P.3d 581 (citation and internal quotation marks omitted).
10. Mother has not established that Trial Counsel’s non-
objections or stipulations were professionally unreasonable in
and of themselves. We identify them only to complete the short
list of actions that Trial Counsel actually undertook during
Mother’s trial.
11. In stark contrast to his reticence during trial, once the
juvenile court rendered its decision terminating Mother’s
parental rights at the end of trial, Trial Counsel immediately
requested that he be released from his representation of Mother.
20140055-CA 10 2015 UT App 230In re S.S.
¶25 The State argues that Trial Counsel’s performance must
be viewed against the backdrop of Mother’s intransigence. The
State claims that ‚any deficit in [Trial Counsel’s] performance
was directly attributable to Mother’s complete failure to
communicate with him.‛ Indeed, the record reveals a strained
and difficult relationship between Trial Counsel and Mother.
The State lays the blame for the breakdown at Mother’s feet and
argues that Mother ‚has manufactured a claim of ineffectiveness
by creating a situation in which it would be virtually impossible
for any lawyer to provide the very best representation.‛
Strickland does not, of course, require ‚the very best
representation‛; it does, however, mandate objectively
reasonable performance. 466 U.S. at 688. Even if we were to
concur with the State that Mother was responsible for the
strained relationship, we cannot accept the State’s argument that
this difficulty made it objectively reasonable for Trial Counsel to
do nothing at all to advance his client’s interests.
¶26 We also acknowledge the GAL’s argument that ‚‘*s+ilence
can constitute trial strategy,’ particularly where the evidence is
overwhelming against the defendant.‛ (Quoting Warner v. Ford,
752 F.2d 622, 625 (11th Cir. 1985).) Here, however, the evidence
in favor of termination of Mother’s parental rights was not
overwhelming. Mother had never abused A.S. or S.S. and was
not subject to the kind of long-term incarceration that would
preclude reunification. There is also no suggestion in the record
or the State’s petition that Mother had substance-abuse issues.
¶27 Rather, the State’s grounds for termination were all based,
directly or indirectly, on the separation between Mother and the
children that resulted from Mother’s move to Iowa and the
children’s placement in Wyoming. We see no valid trial strategy
in Trial Counsel’s refusal to at least explore the contacts Mother
20140055-CA 11 2015 UT App 230In re S.S.
had with A.S. and S.S.,12 the efforts she had made to create a
stable environment for her children in Iowa, and her desire to
retain her parental rights. Further, Trial Counsel did not employ
a ‚silence strategy,‛ but rather elected to call Mother’s credibility
into question and affirmatively represented to the juvenile court
that he had ‚[n]othing to argue.‛ In other words, not only did
Mother lack an advocate in the courtroom, but her own attorney
appeared to take an adversarial position against her. This was
objectively unreasonable and denied Mother the effective
counsel Utah law guarantees to a defendant facing the loss of her
parental rights. See Utah Code Ann. § 78A-6-1111(1) (LexisNexis
Supp. 2014) (establishing a parent’s right to counsel at
termination proceedings).
¶28 To establish her claim of ineffective assistance of counsel,
Mother must also demonstrate that Trial Counsel’s performance
resulted in prejudice to her case. See In re E.H., 880 P.2d 11, 13
(Utah Ct. App. 1994). Thus, Mother ‚must show that there is a
reasonable probability that, but for *Trial Counsel’s+
unprofessional errors, the result of the proceeding would have
been different.‛ Strickland v. Washington, 466 U.S. 668, 693 (1984).
‚A reasonable probability is a probability sufficient to
undermine [our] confidence in the outcome.‛ Id.
¶29 Trial Counsel’s complete lack of advocacy for Mother
during the termination trial undermines our confidence in the
result.13 A competent presentation of Mother’s version of events
12. For example, the contact log prepared by the foster mother
showed that Mother had contacted A.S. and S.S. nearly weekly
in the two months preceding the State’s filing of the termination
petition.
13. The concurring opinion asserts that ‚the juvenile court seems
to have correctly determined that Mother failed to show the
(continued…)
20140055-CA 12 2015 UT App 230In re S.S.
could have explained her actions in such a light that there is a
reasonable probability of a more favorable result for Mother.
¶30 For example, the juvenile court concluded that Mother
had ‚failed to communicate with her children in any way in
excess of six months and failed to show the normal interest of a
natural parent.‛ Had Trial Counsel performed effectively, he
could have elicited testimony that the records the foster parents
maintained demonstrated that Mother had made almost weekly
calls to the children for a number of months. Trial Counsel also
could have argued that Mother’s frequent reference to her belief
that the ‚interstate compound‛ provided her a mechanism to
regain custody of her children was inconsistent with a finding of
abandonment or a finding that Mother had failed ‚to have
shown the normal interest of a natural parent, without just
cause.‛ See Utah Code Ann. § 78A-6-508(1)(c) (LexisNexis Supp.
2014). Similarly, the juvenile court found, citing Utah Code
section 78A-6-508(2)(d), that Mother had shown ‚repeated or
(…continued)
normal interest of a natural parent and could not demonstrate
sufficient just cause to excuse her failures.‛ See infra ¶ 34. Trial
Counsel’s failure to represent Mother helped create the record
that the concurring opinion relies on to reach its conclusion
about the propriety of the juvenile court’s decision. The concerns
we have about Trial Counsel’s representation undermine our
confidence that Mother’s story was fully presented. For example,
we do not know what Mother might have offered to
demonstrate ‛just cause‛ for the decisions she made had she
been appropriately represented. Given the importance of the
fundamental interests at stake, we believe the more prudent
course of action is to await a record developed with the
assistance of the counsel Utah law guarantees before assessing
whether the juvenile court properly terminated Mother’s
parental rights.
20140055-CA 13 2015 UT App 230In re S.S.
continuous failure to provide the children with food, clothing,
shelter, education, or other care necessary for the children’s
physical, mental, and emotional health and development.‛ See id.§ 78A-6-508(2)(d). There is a reasonable likelihood of a different
result had Trial Counsel elicited Mother’s testimony concerning
the efforts she had undertaken in Iowa in hopes of creating a
stable environment there for all of her children.
¶31 Trial Counsel’s deficient performance not only precluded
Mother from completely and competently presenting her story
to the juvenile court, but Trial Counsel affirmatively undercut
Mother’s case. Trial Counsel’s examination of Mother was a
direct attack on her credibility. The juvenile court’s termination
order expressly found that Mother’s testimony lacked credibility.
The Utah Supreme Court has recognized that deficient
performance that diminishes a party’s credibility can be
prejudicial. See State v. Lenkart, 2011 UT 27, ¶ 41, 262 P.3d 1(discerning prejudice where unoffered testimony ‚would have
shifted the credibility scale in *the defendant’s+ direction, thus
changing the entire evidentiary picture at trial‛). Here, any
possibility of a successful result for Mother hinged on the
juvenile court believing Mother’s explanations for her actions.
Trial Counsel’s examination diminished Mother’s credibility
before the juvenile court and thereby decreased the possibility of
a more favorable result.14 Cf. id.
¶32 Mother has shouldered her burden on appeal of
demonstrating that Trial Counsel provided her with objectively
14. Other aspects of Trial Counsel’s deficient performance only
reinforced and magnified this prejudice, including his failure to
make an opening statement, his abrupt termination of his
examination of Mother with the comment ‚*t+here’s no sense in
it,‛ and his representation to the juvenile court that there was
‚*n+othing to argue‛ in Mother’s favor.
20140055-CA 14 2015 UT App 230In re S.S.
deficient assistance at her termination trial and that his
performance prejudiced her case. She has thus established that
she was deprived of the effective assistance of counsel that Utah
Code section 78A-6-1111 guaranteed her.
CONCLUSION
¶33 Trial Counsel rendered ineffective assistance of counsel
by failing to represent Mother’s interests in the trial to terminate
her parental rights. At trial, Mother wanted to explain her
actions to the juvenile court. Trial Counsel’s failure to advocate
largely prevented Mother from doing so. Further, to the extent
that the juvenile court allowed Mother to tell her story without
the assistance of Trial Counsel, Trial Counsel diminished her
credibility with his own comments and examination of Mother.
We conclude that Trial Counsel’s actions fell below reasonable
professional standards of representation and undermine our
confidence in the result the juvenile court reached. Accordingly,
Mother received ineffective assistance of counsel and is entitled
to a new trial. We reverse and remand for further proceedings.
CHRISTIANSEN, Judge (concurring):
¶34 I concur with the majority’s opinion that Mother received
ineffective assistance of counsel and that the juvenile court’s
termination order should be reversed. I write separately,
however, because I am much less convinced than my colleagues
that Trial Counsel’s lack of representation throughout the
proceedings and at trial produced an unjust result. I find more
compelling than my colleagues the argument presented by the
State and the GAL that Mother’s failure to parent created a
pattern of parental absenteeism that foreclosed the opportunity
for even competent counsel to change the outcome of this case.
Though Mother did not physically abuse her children or have
20140055-CA 15 2015 UT App 230In re S.S.
diagnosed substance-abuse or mental health issues,15 in the
context of the abandonment and neglect at issue here, I believe
the record demonstrates that Mother consciously disregarded
her parental obligations and failed to maintain a relationship
with her children. See Utah Code Ann. § 78A-6-508(1)
(LexisNexis Supp. 2014). In my opinion, given the young ages of
S.S. and A.S., the majority only cursorily considers the impact of
Mother’s purposeful and intentional move from Utah to Iowa at
the beginning of 2013 to be close to her older children. This move
occurred at a point in time when S.S. was only six months old
and A.S. was only two and one-half years old—critical
developmental periods during which a child would be expected
to naturally and normally bond closely with his or her
caregivers. Even if Mother had the assistance of counsel to help
explain her decision to move away from the children, the
juvenile court seems to have correctly determined that Mother
failed to show the normal interest of a natural parent and could
not demonstrate sufficient just cause to excuse her failures.
¶35 Specifically, when Mother chose to move out of state
away from her young children, she was still in a position to fully
comply with the Child and Family Plan in order to be reunified
with S.S. and A.S. The evidence produced at trial demonstrates
that after she moved to Iowa, Mother did not work with or stay
in contact with DCFS, did not pay child support, did not send
gifts or cards to her children, did not maintain a stable address
or otherwise comply with her service plan, and continued to
engage in anti-social and criminal behavior. All of these failures
to comply with her Child and Family Plan compounded the
15. The majority opinion states that there is no suggestion in the
record that Mother had substance-abuse issues. See supra ¶ 26.
However, Mother’s Child and Family Plan required her to
undergo random drug tests and obtain a mental health
assessment.
20140055-CA 16 2015 UT App 230In re S.S.
problem of physical separation and an inability to verbally
communicate with her baby and toddler. Also at trial, Mother
acknowledged that she had not had face-to-face contact with her
two young children in nearly a year. While there is no universal
standard for what constitutes a normal parental relationship, a
parent is required to support, communicate, and bond with his
or her child to maintain an appropriate parent-child relationship.
See In re T.E., 2011 UT 51, ¶¶ 20–21, 266 P.3d 739. By
purposefully removing herself from the state in which her
children resided, and by failing to recognize her
children’s developmental bonding needs, Mother created a
situation that did not allow her to have much, if any, continued
relationship with her young children. Mother’s own actions
appear to demonstrate her abandonment and neglect of S.S. and
A.S. Therefore, I am not completely convinced that Trial
Counsel’s unprofessional errors caused actual prejudice by
changing the result of this case.
¶36 However, though I find compelling the State’s and the
GAL’s arguments that much of the responsibility for Mother’s
abandonment and neglect of S.S. and A.S. appears to lie with
Mother and her choices, the record supports our determination
that Trial Counsel’s representation in this case was woefully
deficient and actually adversarial to Mother. Because ‚a parent
possesses a fundamental liberty interest in the care, custody, and
management of the parent’s child,‛ Utah Code Ann. § 78A-6-503
(LexisNexis Supp. 2013), the State bears the burden of proving
by clear and convincing evidence that grounds exist to terminate
parental rights and that termination of parental rights is in the
best interest of the children, see id. § 78A-6-506 (2012). Given the
importance of parental rights and the high burden of proof
required to terminate those rights, see In re J.P., 648 P.2d 1364,
1376–77 (Utah 1982), Trial Counsel’s lack of any advocacy on
Mother’s behalf cannot be excused here. Though I tend to believe
the juvenile court may have reached the right decision in this
case, I agree that ‚Mother has shouldered her burden on appeal
20140055-CA 17 2015 UT App 230In re S.S.
of demonstrating that Trial Counsel provided her with
objectively deficient assistance.‛ See supra ¶ 32. Accordingly,
Mother should have a new trial with representation by
competent counsel at which she can attempt to demonstrate just
cause for her decisions.
20140055-CA 18 2015 UT App 230