In re C.B. (M.B. v. State)

2013 UT App 7
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF C.B.,
A PERSON UNDER EIGHTEEN YEARS OF AGE

M.B.,

Appellant,
v.
STATE OF UTAH,

Appellee.

Opinion
No. 20120036‐CA
Filed January 10, 2013

Third District Juvenile, Salt Lake Department
The Honorable Frederic M. Oddone
No. 1047739

David C. Cundick, Attorney for Appellant
John E. Swallow and John M. Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem

JUDGE CAROLYN B. MCHUGH authored this Opinion, in which
JUDGE J. FREDERIC VOROS JR. concurred. JUDGE JAMES Z. DAVIS
concurred, in part, and concurred in the result only, in part, with
opinion.

McHUGH, Judge:

¶1 M.B. (Mother) appeals from the juvenile court’s order
terminating her parental rights with respect to her minor child, C.B.
In particular, Mother contests the juvenile court’s denial of her
 In re C.B.

motion to stay termination proceedings pending an evaluation of
her competency. We affirm in part and dismiss Mother’s appeal in
part.

BACKGROUND

¶2 On February 4, 2011, the Division of Child and Family
Services (DCFS) took three‐month‐old C.B. into protective custody
after residents of a homeless shelter reported that Mother had left
him unattended and had tried to suffocate him. The verified
petition asserted that “[t]he [DCFS] caseworker met with [Mother]
and observed [Mother] to have an erratic thought process as she
jumped from topic to topic and [Mother] appeared to be confused.”
After a shelter hearing, Mother stipulated to the shelter findings
and C.B. was placed in the interim custody of DCFS. The juvenile
court held an adjudication hearing on April 8, 2011, and found that
Mother had neglected C.B. The court also ordered that Mother
undergo a psychological evaluation and parenting assessment.

¶3 On May 10, 2011, the juvenile court held a disposition
hearing at which the State proposed a Child and Family Plan for
reunification services. At that time, Mother’s trial counsel reported
that he had concerns about whether he could effectively represent
Mother because he was having difficulty communicating with her.
Mother’s trial counsel asked that Mother undergo a psychological
assessment or, in the alternative, that he be permitted to withdraw.
The State did not object to the request that the disposition hearing
be continued so long as the child welfare permanency deadlines
would not be stayed while the psychological evaluation was being
completed. As a result, the juvenile court continued the disposition
hearing pending the psychological assessment.

¶4 Because Mother was incarcerated on the date of the contin‐
ued disposition hearing, the juvenile court again postponed the
hearing. After being released, Mother failed to appear on the
second rescheduled date, and the juvenile court ordered a third

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 In re C.B.

continuance. Although Mother appeared for the disposition
hearing on June 30, 2011, she still had not completed her psycho‐
logical evaluation. The juvenile court again ordered that Mother
undergo a psychological evaluation so that it could proceed with
the disposition hearing, which was scheduled for August 9, 2011.
On July 22, 2011, over two months after she was originally ordered
to do so, Mother completed her psychological evaluation.

¶5 When Mother failed to appear at the August 9, 2011
disposition hearing, trial counsel again moved to withdraw on the
ground that he had been unable to communicate with Mother since
the prior hearing. The juvenile court granted trial counsel’s motion
to withdraw and ordered that further “reunification services
should not be offered because aggravating circumstances exist.”
Thereafter, DCFS indicated its intent to pursue the termination of
Mother’s parental rights and the juvenile court reappointed trial
counsel to represent Mother in those proceedings.

¶6 DCFS filed its petition to terminate Mother’s parental rights
on September 8, 2011. On October 25, 2011, the day set for the
termination trial, Mother’s trial counsel filed a motion to stay
pending a determination of Mother’s competency based on his
concerns that Mother did not understand the nature of the
proceedings and was unable to assist in her defense. The juvenile
court continued the termination trial in order to allow for briefing
and argument on the issue. Ultimately, the juvenile court denied
the motion to stay the proceedings based on its conclusion that
“[t]here is no authority or procedural rule for a competency
evaluation of a parent to determine if a parent is competent to
stand trial and indeed, incompetence is a ground for the termina‐
tion of parental rights.” The juvenile court also found that Mother
had been effectively represented by her trial counsel and that the
psychological evaluation indicated that Mother did not exhibit any
“abnormal thought processes.” As a result, the juvenile court
ordered that the case proceed to trial.

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 In re C.B.

¶7 After a termination trial was held on December 8, 2011, the
juvenile court entered an order terminating Mother’s parental
rights with respect to C.B. In its findings of fact, the court noted
that Mother had testified “coherently and clearly” at trial and that
it did “not have any basis to find that [Mother was] psychologically
impaired [at trial] or for any time during the past nine months that
she [had] appeared before the [juvenile court].” Mother appeals
from the juvenile court’s decision.

ISSUES AND STANDARDS OF REVIEW

¶8 Mother asserts that the juvenile court erred by not staying
the termination proceedings in order to authorize a competency
evaluation. In particular, she claims that the juvenile court violated
her rights under the Utah Rules of Civil Procedure and her due
process rights under the Utah and United States constitutions. The
“interpretation of a rule of procedure is a question of law” that we
review for correctness. Ostler v. Buhler, 1999 UT 99, ¶ 5, 989 P.2d
1073. “‘Due process challenges are questions of law that we review
applying a correction of error standard.’” Certified Bldg. Maint. v.
Labor Commʹn, 2012 UT App 240, ¶ 17, 285 P.3d 831 (mem.)
(quoting Utah Auto Auction v. Labor Commʹn, 2008 UT App 293, ¶
9, 191 P.3d 1252).

ANALYSIS

¶9 We first consider Mother’s argument that she was entitled
to a competency hearing under the relevant procedural rules and
statutes governing competency in criminal cases. Because we
conclude that the procedural rules governing juvenile court
proceedings did not afford Mother a right to a competency hearing,
we then consider Mother’s due process claims. Cf. Gardner v. State,
2010 UT 46, ¶ 93, 234 P.3d 1115 (noting that it is an appellate court’s

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“obligation to avoid addressing constitutional issues unless
required to do so” (citation and internal quotation marks omitted)).

I. Procedural Rights

¶10 Mother first claims that the juvenile court was empowered
under Utah court rules to stay the termination proceedings and
order Mother to undergo a competency evaluation. Proceedings to
terminate parental rights are governed by the Utah Rules of
Juvenile Procedure and, to the extent not inconsistent with those
rules, the Utah Rules of Civil Procedure. See Utah R. Juv. P. 2(a).
Mother points us to rule 17 of the Utah Rules of Civil Procedure,
which states, “An . . . incompetent person who is a party must
appear either by a general guardian or by a guardian ad litem . . . .”
See Utah R. Civ. P. 17(b). Mother first argues that rule 17 affords the
juvenile court “the right to appoint a guardian ad litem for an
incompetent party” and then contends that, by inference, the court
“is certainly empowered with making the determination regarding
whether or not a mother of a juvenile in a child welfare proceeding
is competent once it has been raised.” Although trial counsel did
request a competency evaluation, there is nothing in the record to
suggest that counsel also requested that a guardian be appointed
for Mother. Furthermore, rule 17 contains no provision suggesting
that a civil litigant must be competent in order for the case to
proceed. Instead, rule 17 provides that through appointment of a
guardian, the case may go forward while the litigant remains
incompetent. See Utah R. Civ. P. 17(b). Nothing in rule 17 supports
Mother’s claim that she was entitled to a stay of the termination
proceedings pending a determination of her competency.

¶11 Mother also relies on the statute governing issues of
incompetency in criminal proceedings, which provides that an
incompetent person cannot “be tried for a public offense,” because
an incompetent person does not “have a rational and factual
understanding of the proceedings against him or of the punish‐
ment specified for the offense charged” or the ability “to consult
with his counsel and to participate in the proceedings against him

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 In re C.B.

with a reasonable degree of rational understanding.” See Utah
Code Ann. §§ 77‐15‐1, ‐2 (LexisNexis 2012).1 Unlike rule 17’s
treatment of a party to a civil proceeding, if a criminal defendant
is found incompetent, the proceedings must be stayed until the
defendant is found competent to stand trial. See id. § 77‐15‐6(1)
(2012); id. § 77‐15‐1. We agree with the juvenile court that the focus
of a criminal trial is quite different than that of a child welfare
proceeding.

¶12 The “ultimate goal and purpose” of DCFS is “protecting
children.” Id. § 62A‐4a‐103(2)(b) (2011). In accordance with this
goal, the Utah Code directs DCFS to, “when possible and appropri‐
ate, provide . . . family preservation services.” Id. But in cases
where “a child’s welfare is endangered or reasonable efforts to
maintain or reunify a child with his family have failed,” DCFS
“shall act in a timely fashion . . . to provide the child with a stable,
permanent environment.” Id. The Utah Code further provides
statutory timelines for establishing permanency. See id. § 78A‐6‐
312(9) (2012); see also In re S.C., 1999 UT App 251, ¶ 13, 987 P.2d 611
(stressing the importance of courts “adher[ing] to the time restric‐
tions imposed by law” for resolving child welfare cases); cf. In re
G.R., 2008 UT App 265, ¶ 3, 191 P.3d 1241 (per curiam) (explaining
that the statutory time limit on reunification services suggests “that
a person is not entitled to an indeterminate amount of time to
resolve any mental health issues prior to the beginning of reunifica‐
tion services”). Not only is “[m]ental illness . . . not a defense to a
parental termination action,” it “may actually be evidence of
unfitness.” In re G.R., 2008 UT App 265, ¶ 2 (citing Utah Code Ann.
§ 78‐3a‐408(2)(a) (LexisNexis Supp. 2007) (current version at id.
§ 78A‐6‐508(2)(a) (2012))). As the guardian ad litem observes in her
brief, “[m]aking a claim of incompetence to stand trial comes close
to conceding the very issue of parental competence” that is at issue
in a termination proceeding. See generally Utah Code Ann. § 78A‐6‐

1. Where the relevant provisions of the Utah Code have not
changed, we cite the current version for the reader’s convenience.

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 In re C.B.

507(1)(c) (LexisNexis 2012) (“[T]he court may terminate all parental
rights with respect to a parent if the court finds . . . that the parent
is unfit or incompetent[.]”); id. § 78A‐6‐503(12) (“[I]f a parent is
found, by reason of his conduct or condition, to be unfit or
incompetent . . . , the court shall then consider the welfare and best
interest of the child of paramount importance in determining
whether termination of parental rights shall be ordered.”). In fact,
“[t]here is a presumption that reunification services should not be
provided to a parent if the court finds, by clear and convincing
evidence, that . . . the parent is suffering from a mental illness of
such magnitude that it renders the parent incapable of utilizing
reunification services.” See id. § 78A‐6‐312(21)(b).

¶13 Furthermore, our jurisprudence regarding competence in
termination cases refutes the notion that there is any procedural or
statutory requirement that a parent be competent to proceed. In In
re G.R., 2008 UT App 265, 191 P.3d 1241 (per curiam), a mother
whose parental rights were terminated appealed on the ground
that “the parental termination proceedings and her requirement to
comply with the terms of her service plan should have been stayed
pending resolution of her mental health issues.” Id. ¶ 1. In rejecting
the mother’s claim, this court explained that “because mental
illness can constitute evidence supporting a determination of
unfitness, it cannot be used as a defense enabling a parent to stay
termination proceedings.” Id. ¶ 2 (citing Utah Code Ann. § 78‐3a‐
408(2)(a) (LexisNexis Supp. 2007) (current version at id. § 78A‐6‐
508(2)(a) (2012))). The In re G.R. court also relied on the Utah
Legislature’s adoption of “strict limits” on the amount of time in
which reunification services are available, concluding that “a
person is not entitled to an indeterminate amount of time to resolve
any mental health issues prior to the beginning of reunification
services.” Id. ¶ 3 (citing Utah Code Ann. § 78‐3a‐312(4)(d)
(LexisNexis Supp. 2007) (current version at id. § 78A‐6‐314(7)
(2012))).

¶14 As a result, we agree with the juvenile court that the
procedural and statutory framework governing child welfare

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matters does not include the right to stay termination proceedings
pending the evaluation of a parent’s competency.2 In particular,
there is nothing in the rules or statutes that would permit the
juvenile court to suspend the time limits for permanency due to the
parent’s mental illness. See Utah Code Ann. § 78A‐6‐314(7), (8)(a)
(stating that reunification time may not be extended beyond one
year unless “there has been substantial compliance with the child
and family plan; reunification is probable . . . ; and . . . the extension
is in the best interest of the minor”).

II. Due Process Rights

¶15 Even in the absence of a statutory or rule‐based procedural
method for staying the termination proceedings pending a
competency evaluation, Mother contends that such a right is
afforded by the Due Process Clause of the Fourteenth Amendment

2. Mother does not challenge the reasonableness of the services
DCFS provided in connection with the reunification plan. See
generally In re T.M., 2003 UT App 191, ¶ 13, 73 P.3d 959 (“‘[I]n any
case in which the [juvenile] 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.’” (second, third, and fourth
alterations in original) (quoting Utah Code Ann. § 78‐3a‐407(3)(a)
(LexisNexis 2002) (current version at id. § 78A‐6‐507(3)(a) (2012)))).
As a result, this opinion should not be construed as an impediment
to making appropriate efforts to restore a parent to competence,
where such may be accomplished as part of a reunification plan
within the time allotted for reunification. See generally Utah Code
Ann. § 78A‐6‐312(13)(a) (LexisNexis 2012) (“The time period for
reunification services may not exceed 12 months from the date that
the minor was initially removed from the minor’s home, unless the
period is extended under Subsection 78A‐6‐314(8)[, which allows
additional time for reunification services if certain criteria are
met].”).

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to the United States Constitution.3 See U.S. Const. amend. XIV, § 1.
She relies on our pronouncement in In re W.S., 939 P.2d 196 (Utah
Ct. App. 1997), which held that “[d]ue process requires that a
parent be given a meaningful opportunity to be heard by
submitting testimony herself and by witnesses.” See id. at 202
(citation and internal quotation marks omitted). According to
Mother, if the juvenile court had ordered a competency evaluation
and found her to be incompetent, “[t]here was a distinct possibility
that [she] . . . could have become competent through mental
services and/or proper medication,” and thereby been able to
participate meaningfully in the termination proceeding. Mother
also contends that the juvenile court’s determination that it did not
have the authority to stay a termination trial to allow the parent’s
mental competency to be evaluated violates the due process rights
of mentally incompetent parents who might be restored to
competency in time to remedy the circumstances that led to the
removal within the statutory deadlines.

A. Mother’s Claim of Incompetency Was Not Supported by the
Record.

¶16 Unlike in a criminal proceeding, there is no statute or rule
requiring that child welfare proceedings be stayed upon a parent’s
request for a competency evaluation. But see Utah Code Ann. §§ 77‐
15‐1, ‐5(1)(a) (LexisNexis 2012) (requiring that the court stay
proceedings against a person charged with a public offense upon
the filing of a petition raising issues of the defendant’s competency
to stand trial). Nevertheless, Mother contends that the due process
concerns that require a criminal defendant to be mentally

3. Although Mother also lists the Utah Constitution’s Due Process
Clause as governing authority, she makes no “separate legal
analysis and has not otherwise suggested a reason that warrants a
distinct analytical treatment under the Utah Constitution.” See State
v. Davis, 972 P.2d 388, 392 (Utah 1998). Therefore, we do not
consider her state constitutional due process claim. See id.

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competent to stand trial are equally applicable to parental
termination proceedings in the juvenile court. Cf. State v. Arguelles,
2003 UT 1, ¶ 47, 63 P.3d 731 (“It is well established that due process
requires that a defendant be mentally competent to plead guilty
and to stand trial.”). We need not decide this issue because, even
under the criminal due process standard, the juvenile court was not
required to order a competency evaluation under the present facts.

¶17 In the absence of a statutory obligation to order a
competency evaluation of a criminal defendant, due process
requires the trial court to order such an evaluation only if the
“observable, objective facts . . . raise[] a reasonable doubt as to the
defendant’s competence.” See State v. Young, 780 P.2d 1233, 1238
(Utah 1989) (holding that the trial court did not violate the
defendant’s due process rights by failing to hold a competency
hearing before proceeding with trial); see also State v. Bailey, 712
P.2d 281, 284–85 (Utah 1985) (holding that there was no statutory
or due process right to a competency hearing where the defense
did not file a petition requesting one and the record did not
indicate that the defendant’s mental condition had deteriorated
since a psychiatric evaluation found him competent). Furthermore,
in accepting a guilty plea, due process requires the trial court to
hold a competency hearing on its own motion only “when there is
a substantial question of possible doubt as to a defendant’s
competency at the time of the guilty plea.” Arguelles, 2003 UT 1,
¶ 49 (citation and internal quotation marks omitted); see also State
v. Young, 780 P.2d 1233, 1236 (Utah 1989) (explaining that Bailey
held that “[a]n uncorroborated assertion of mental illness at trial
was not sufficient to require a competency hearing” where there
was no petition or evidence of mental illness). When determining
whether there was a substantial question of possible doubt, “the
focus should be on what the trial court did in light of what it then
knew of the defendant.” See Young, 780 P.2d at 1237 (citation
omitted).

¶18 In this case, psychological testing and therapy were
provided for in the reunification plan. In addition, the juvenile

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court responded to concerns about Mother’s mental health by
ordering her to undergo a “full‐scale clinical psychological
evaluation.” The results of that evaluation did not suggest that
Mother was incompetent. Instead, the examiner determined that
Mother was of average intelligence, “responded to [testing] in a
manner that suggested she understood the directions,” “should not
experience any difficulty in comprehending and meeting the
intellectual demands of her day‐to‐day and occupational
functioning,” and “possesses the cognitive ability to fully
appreciate why she is involved with DCFS.” The evaluator also
observed that Mother was “oriented to person, place, situation, and
time.”

¶19 Furthermore, the juvenile court had its own opportunity to
observe Mother’s behavior during the proceedings. In reaching the
decision to terminate Mother’s parental rights, the juvenile court
found her courtroom behavior appropriate, indicating that Mother
“coherently described her efforts to obtain her general education
degree and she explained that she is not working because she lacks
the proper education to obtain a job. [Mother] testified coherently
and clearly that she has an apartment in Salt Lake City . . . .” Cf.
Young, 780 P.2d at 1238 (noting that the defendant’s “testimony at
trial was clear and coherent”). The juvenile court also indicated that
trial counsel’s frustration was “in part due to [Mother’s] failure to
come to meetings and failure to come to some court hearings, . . .
but her behavior could just as well be from her lack of interest as is
alleged in the State’s petition as easily as it could [be] from any
other factor.” Based on what it then knew of Mother, the juvenile
court concluded that it did “not have any basis to find that [Mother
was] psychologically impaired [at trial] or for anytime during the
past nine months that she [had] appeared before the Court.” Under
these circumstances, even assuming, without determining, that the
due process constraints governing the nonstatutory right to a
competency evaluation in a criminal trial applies equally to a
parental termination, the juvenile court’s refusal to order a
competency evaluation did not violate Mother’s due process rights.
Cf. Id. (holding that isolated emotional distress did not mandate a

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competency hearing where there was no indication that the
defendant was unable to assist counsel).

B. Mother Lacks Standing to Challenge the Juvenile Court
Procedures on Behalf of Incompetent Parents Who Might Be
Restored to Competency.

¶20 Mother also raises a facial challenge, arguing that if the
juvenile court procedures do not include a mechanism by which
termination proceedings can be stayed pending the restoration of
the parent’s competency, those procedures violate due process.
However, we have determined that Mother’s claims of
incompetence were not supported by the record. As a result,
Mother lacks standing to advance this argument.

¶21 In State v. Mace, 921 P.2d 1372 (Utah 1996), the Utah
Supreme Court considered an analogous situation. There, the
defendant challenged Utah’s statutory insanity defense, arguing
that it “allow[ed] for the conviction of those who have the requisite
mens rea, even though they may not appreciate the wrongfulness
of their conduct or are unable to control their conduct.” Id. at 1376
(citing Utah Code Ann. § 76‐2‐305(1) (Michie 1995) (current version
at id. (LexisNexis 2012))). In particular, the defendant claimed that
punishing this class of persons violated the federal and state
constitutional prohibitions against cruel and unusual punishment.
See id.; U.S. Const. amend. VIII; Utah Const. art. I, § 9. However, the
supreme court refused to consider the defendant’s constitutional
challenge because “[t]hose facts are not present in this case, and .
. . [the defendant] lacks standing to assert such a broad facial
challenge.” Mace, 921 P.2d at 1379. In reaching that conclusion, the
Mace court applied a “three‐step inquiry in reviewing the question
of a complainant’s standing to sue,” which had been “previously
outlined” in Jenkins v. Swan, 675 P.2d 1145 (Utah 1983). See Mace,
921 P.2d at 1379.

¶22 “The first step of the inquiry is directed to ascertaining the
complainant’s personal stake in the controversy” and considers

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whether there is “‘some causal relationship alleged between the
injury to the [complainant], the governmental actions and the relief
requested.’” Id. (alteration in original) (quoting Jenkins, 675 P.2d at
1150). If this requirement is met, the complainant has established
standing. Id. Because the complainant could not satisfy the first
step of the standing inquiry, the Mace court proceeded to the
second step, which considers “whether anyone else would have a
‘more direct interest in the issues who can more adequately litigate
the issues.’” Id. (quoting Jenkins, 675 P.2d at 1150). The third step in
the standing analysis applied in Mace was whether “the issues
raised by the [complainant] are of sufficient public importance in
and of themselves to grant . . . standing.” Id. (alteration in original)
(quoting National Parks & Conservation Assʹn v. Board of State Lands,
869 P.2d 909, 913 (Utah 1993)).

¶23 Ten years after Mace, in Utah Chapter of the Sierra Club v. Utah
Air Quality Board, 2006 UT 74, 148 P.3d 960, the Utah Supreme
Court refined the standing test because the “treatment of standing
principles ha[d] become somewhat convoluted, leading to
occasional missteps in their application.” Id. ¶ 18. In Sierra Club, the
court explained that a proper standing analysis involves a two‐step
process, which considers whether the party has standing under the
traditional standing test and, if not, whether standing exists under
an alternative standing test. See id. ¶¶ 18, 41. The traditional
standing test, or the “‘distinct and palpable injury’” requirement,
encompasses the first prong of the standing test that was
articulated in Jenkins and applied in Mace. See id. ¶ 19 (quoting
Jenkins, 675 P.2d at 1148); Mace, 921 P.2d at 1379. Even if a party
cannot meet that traditional test, however, the party may have
standing under the alternative standing test, which assesses the
appropriateness of the party to raise the particular issue and the
likelihood that it will be advanced if the party is denied standing.
See Sierra Club, 2006 UT 74, ¶ 41. While these concepts are included
in the standing test discussed in Jenkins, the analysis now requires
only that the plaintiff be an appropriate party, not the most
appropriate party to raise the issue. Id. ¶ 36. Thus, under the
modern standing test, multiple parties may have standing to raise

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the same issue. Id. ¶ 37. But even if the party is an appropriate
person to raise the issue, to qualify for alternative standing, the
party must also establish that the relevant issues “‘are of sufficient
public importance in and of themselves’ to warrant granting the
party standing.” Id. ¶ 39 (quoting Jenkins, 675 P.2d at 1150). Thus,
we consider Mother’s standing in light of the analogous situation
in Mace, as refined by the standing test announced in Sierra Club.

¶24 We begin our traditional standing analysis by considering
whether Mother has a “personal stake in the controversy.” See
Mace, 921 P.2d at 1379. In Mace, the supreme court concluded that
the defendant had “no personal stake in his claim that the statutory
scheme might punish people who are unable to appreciate the
wrongfulness of their conduct” because the facts indicated that the
defendant “did appreciate the wrongfulness of his conduct.” Id. In
particular, the clinical director of the Utah State Hospital’s forensic
unit testified that the defendant “‘obviously had intent’” and
“‘obviously knew [that his conduct] was wrong.’” See id. at
1374–75. Thus, the supreme court concluded that the defendant did
not satisfy the first prong of the standing test articulated in Jenkins.
See id. at 1379; Jenkins, 675 P.2d at 1150.

¶25 The same conclusion is appropriate under the traditional
standing test here. Mother has no personal stake in her claim that
persons unable to understand the juvenile court proceedings or the
requirements of the reunification plan due to mental incompetency
have a constitutional right to a competency hearing, to a guardian,
or to be restored to competency. Early in the proceedings, the
juvenile court ordered that Mother undergo a psychological
evaluation. The resulting report concluded that Mother “possesses
the cognitive ability to fully appreciate why she is involved with
DCFS” and that she “should not experience any difficulty in
comprehending and meeting the intellectual demands of her day‐
to‐day and occupational functioning.” The juvenile court made
similar observations based on its interaction with Mother and
ultimately found that it did not have any basis to question her
competence. As in Mace, the juvenile court’s finding, based on the

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available evidence, excluded Mother from the class of persons
affected by the challenged conduct. See 921 P.2d at 1378–79.

¶26 Because Mother cannot satisfy the traditional standing
inquiry, we proceed to the consideration of alternative standing.
See Sierra Club, 2006 UT 74, ¶ 41. “To make this determination, the
court must first ask whether the party is an appropriate party. If
the party is not an appropriate party, the court’s inquiry ends and
standing is denied.” Id. (citation omitted).

[A] court addressing standing under
the alternative test does not need to
determine which party seeking to
intervene is the most appropriate party
in comparison to any other potential
party, but rather needs to determine
only which parties are, in fact,
appropriate parties to a full and fair
litigation of the dispute in question.

Id. ¶ 36.

¶27 In Mace, the supreme court concluded that persons suffering
from mental illnesses which “made it impossible for them to
appreciate the wrongfulness of their conduct” were better situated
to pursue the constitutional challenge. State v. Mace, 921 P.2d 1372,
1379 (Utah 1996). The due process challenge advanced by Mother
would also be more appropriately raised by parents whose mental
incompetency prevents them from understanding the juvenile
court proceedings but who could be restored to competency within
the statutory time limits. However, because Mother need not be the
most appropriate party to raise the challenge, we proceed to the
second part of the alternative standing test to determine whether
she is “asserting issues of sufficient public importance to balance
the absence of the traditional standing criteria. If so, the party has
standing.” See Sierra Club, 2006 UT 74, ¶ 41 (citation omitted).
Considering this issue in Mace, the supreme court concluded,

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“Deciding the issue now would have no conceivable concrete
benefit to anyone” because “the statutory scheme at issue here
applies only to individual defendants and does not threaten to chill
or generally infringe on the rights of others.” See 921 P.2d at 1379.
Likewise, Mother has no stake in the outcome of this broad
constitutional issue and has not established any compelling reason
to grant her alternative standing. Thus, we do not reach the merits
of her due process challenge to the juvenile court procedures.

CONCLUSION

¶28 We affirm the juvenile court’s determination that juvenile
court procedures do not allow for the stay of termination
proceedings pending a competency evaluation. Even assuming that
the due process constraints of criminal trials are applicable to
termination proceedings, an issue we do not decide, we hold that
the juvenile court did not err in denying Mother’s motion because
her claim of incompetency was unsupported by the record. Finally,
we dismiss Mother’s general due process challenge to the juvenile
court procedures because she does not have standing to advance
that claim.

¶29 Affirmed, in part, and dismissed, in part.

DAVIS, Judge (concurring and concurring in result only):

¶30 I concur in the majority’s analysis and conclusion as to Part
I. However, I concur only in the result as to Part II because I do not
think criminal cases relating to competency are applicable in this
context and because I disagree with the majority’s standing
analysis.

¶31 I agree with the majority that we need not reach Mother’s
due process argument in light of the fact that psychological testing
and the juvenile court’s own observations indicated that Mother

20120036‐CA 16 2013 UT App 7
 In re C.B.

was competent. However, I disagree with the majority’s
insinuation that the criminal standard, which requires a stay of the
proceedings if a defendant is found to be incompetent, could
potentially apply to a parental termination proceeding. While the
general issue of whether Utah’s juvenile procedures comply with
constitutional due process requirements may be left for another
day, I do not believe that the due process required in a parental
termination proceeding is equal to that afforded criminal
defendants.4

¶32 Although I recognize the jurisdictional implications of
standing, I believe it is inappropriate in most cases to address an
issue raised by none of the parties on appeal. Also, even if it were
appropriate in this civil proceeding to rely on a criminal case to
analyze standing to seek a separate competency determination, it
is fundamentally illogical to require a determination of
incompetence in order to establish standing to seek a determination
of incompetence. Accordingly, I am untroubled by Mother’s raising
the issue both in the juvenile court and on appeal.

4. This point is aptly illustrated by the majority’s analysis of
Mother’s statutory rights. See supra ¶¶ 11–12.

20120036‐CA 17 2013 UT App 7