In re C.M.R...

2020 UT App 114

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF
C.M.R., B.T.R., P.J.R., F.S., AND O.S.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.

C.S.,
Appellant,
v.
STATE OF UTAH,
Appellee.

Opinion
No. 20190808-CA
Filed August 6, 2020

Sixth District Juvenile Court, Manti Department
The Honorable Brody Keisel
No. 1097000

Emily Adams, Freyja Johnson, and Cherise M.
Bacalski, Attorneys for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES GREGORY K. ORME and RYAN M. HARRIS
concurred, with opinions.

CHRISTIANSEN FORSTER, Judge:

¶1 C.S. (Mother) appeals the juvenile court’s order
adjudicating abuse, neglect, and dependency. Mother argues
that the court erred in concluding that she abused her children
without also making an express finding of harm. Alternatively,
Mother asserts that her counsel (Trial Counsel) rendered
ineffective assistance in advising her to enter admissions to the
 In re C.M.R.

petition without adequate investigation. We affirm in part and
remand for a limited evidentiary hearing.

BACKGROUND

¶2 The Division of Child and Family Services (DCFS) filed a
petition in July 2019 seeking protective supervision of Mother’s
five children (collectively, the Children). Based on information
DCFS received from several referents, the petition alleged that
the Children were abused, neglected, and dependent.
Specifically, the petition asserted that Mother did not provide
the Children with adequate nutrition and supervision; the
Children lived in an unsanitary and unsafe home; Mother
punished the Children with a hammer, fork, belt, and stick;
Mother was unwilling to work with DCFS to address her lack of
parenting skills, which exacerbated the Children’s behavioral
issues and led to contentious and inconsistent visitation; and
finally, Mother had recently been arrested. With regard to one
child, the petition alleged that, while in the waiting room of a
family counseling center, a witness observed,

Mother grabbed [the child] by the back-collar area
of his shirt in such a manner that it restricted his
ability to breathe and caused him to choke. Mother
shoved his face into the corner with force and told
him he needed to think about what he had done.
[The child] told Mother he was having difficulty
breathing and that Mother was hurting him.
Despite [the child’s] statements Mother did not let
up on his shirt or the forcing of his face into the
corner.1

1. The record contains no identifying information about this
witness or information that explains why the witness did not
intervene during the encounter between Mother and the child.

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¶3 The juvenile court appointed Trial Counsel to represent
Mother, and the parties reached a mediated agreement in
response to the petition. 2 At the adjudication hearing held by the
court following mediation, the State indicated that Mother
would enter a plea responding to the allegations in the petition
pursuant to rule 34(e) of the Utah Rules of Juvenile Procedure.
See Utah R. Juv. P. 34(e) (“A respondent may answer by
admitting or denying the specific allegations of the petition, or
by declining to admit or deny the allegations. Allegations not
specifically denied by a respondent shall be deemed true.”).

¶4 The juvenile court explained that under rule 34(e), a
parent who does not specifically deny the State’s allegations
essentially enters a “no-contest” plea in which that parent
neither admits nor denies an allegation, but such an answer
under the rule is treated “as if it were an admission.” The court
further explained that each parent enjoyed “the right to deny the
allegations,” in which case the matter would go to trial and the
State would bear “the burden of proving the allegations in the
. . . petition by . . . clear and convincing evidence.” Mother stated
that she understood the consequences of not specifically denying
the allegations in the petition under rule 34(e), namely, that she
would be giving up her right to contest the allegations contained
in the petition and that her right to appeal would be limited.
Mother further explicitly confirmed that she was not under the
influence of any drugs, alcohol, or medication during the
hearing; that she was thinking clearly; and that she had not been
forced, threatened, or promised anything to respond in a
particular way to the allegations in the petition.

¶5 The juvenile court also asked Mother if she understood
that by not denying the allegations under rule 34(e), she gave the
court “authority to enter orders that would affect [her]. This
could include orders for custody, visitation, child support,

2. In addition to Mother, the two fathers of four of the Children
were also involved in the mediation.

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treatment requirements and parental rights.” The court informed
Mother that if she “wanted more time” to ponder her decision, it
would “be happy” to accommodate her. Mother assured the
court that she was ready to proceed, and she invoked rule 34(e)
with respect to the paragraphs of the petition that detailed the
abuse and neglect suffered by the Children. The court then
accepted Mother’s rule 34(e) admissions.

¶6 After a recess, the court reconvened. Mother and Trial
Counsel immediately informed the court that there was an
apparent conflict stemming from Trial Counsel’s representation
of Mother’s former brother-in-law in a different case. Mother
made a motion to withdraw her rule 34(e) admissions and set the
matter for trial. The State opposed the motion. The guardian ad
litem also opposed withdrawal, pointing out that by conducting
an extensive “colloquy of rights,” the court ensured that Mother
had made “a very knowing and voluntary admission to the
facts.” Trial Counsel responded that Mother had realized, after
talking to Trial Counsel during the recess, that the rule 34(e) plea
would be taken “as an admission.” Trial Counsel also revealed
that Mother had attempted to alert Trial Counsel to the potential
conflict by writing a note to her during the hearing.

¶7 The court denied Mother’s oral motion to withdraw her
plea, but it granted Mother leave to file a written motion to
withdraw within thirty days, reasoning that Mother might
determine that it was “okay” to accept the plea “after some more
consideration as to what a [rule 34(e) plea] means.” However,
the court noted that it was “very careful” during the colloquy to
confirm that Mother knew what she was doing and was acting
voluntarily. With regard to the conflict of interest, the court
asked Trial Counsel, “Other than the technical relationship, was
there anything in your representation that was awry or that you
look back on and say well I may have advised her differently
had I . . . known of the conflict . . . ?” Trial Counsel responded
that her advice “would be the same,” pointing out that the
conflict did not influence her because, at the time she rendered
her advice, she did not know Mother and Mother’s ex-brother-

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in-law were, at one time, related. The court stated that even in
the presence of the conflict, it did not observe anything “per se
deficient in the way” Trial Counsel represented Mother. Mother
agreed that there was nothing “specifically” wrong “in the way
[Trial Counsel] represented” her in court but that she sought
new counsel merely “because of the relationship that exists.” The
court granted Trial Counsel’s motion to withdraw and
appointed substitute counsel (Conflict Counsel), who entered an
appearance for Mother approximately a month after the
adjudication hearing.

¶8 About three weeks after the hearing, based on Mother’s
rule 34(e) admissions, the juvenile court entered an adjudication
order that deemed the allegations in the petition to be true and
found the Children to be abused, neglected, and dependent. The
court made no express finding that the Children had been
harmed, but it did include in its written decision a detailed
account of the incident in which Mother choked one of the
Children by the shirt collar at a counseling session and stated
that its findings of abuse, neglect, and dependency were based
on, among other things, that incident. The court ordered that a
Child and Family Service Plan (the Plan) be prepared for the
family and each child, set a primary permanency goal of
reunification, and ordered DCFS to provide reunification
services to Mother. The court’s adjudication findings were used
to generate the Plan, which required Mother to take those steps
necessary to provide a home where the Children would be safe,
nurtured, loved, and protected from any form of abuse or
neglect. See Utah Code Ann. § 62A-4a-205(8)(d) (LexisNexis
Supp. 2019) (“[C]hild and family plans shall address problems
that . . . keep a child in placement . . . .”). The Plan also
recommended that Mother continue to receive therapy, with a
particular emphasis on developing parenting skills and
developing a more positive view toward the Children. While the
Plan addressed abuse in general terms, it did not mention any
specific incident of abuse or set forth specific requirements to
address the abuse.

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¶9 Ultimately, Mother never filed a written motion to
withdraw her rule 34(e) admissions. However, in the course of
investigating the case, Conflict Counsel discovered allegedly
exculpatory evidence that Mother now asserts demonstrates that
she received ineffective assistance of counsel leading up to and
during the adjudication hearing. Specifically, Conflict Counsel
obtained a statement from the Children’s babysitter, various
police reports, and footage from a police body camera that
Mother asserts Trial Counsel “would have found had she
investigated” and that would have “negated Mother’s most
damning pleas” under rule 34(e). Mother appealed the court’s
adjudication order and subsequently filed a motion under rule
23B of the Utah Rules of Appellate Procedure seeking remand to
the juvenile court to consider her claim of ineffective assistance.
This court denied that motion but instructed Mother to address
the need for remand in her appellate brief in accordance with In
re S.H., 2007 UT App 8, 155 P.3d 109. 3

ISSUES AND STANDARDS OF REVIEW

¶10 Mother first asserts that the juvenile court erred when it
failed to make an express finding of harm before it concluded
that the facts to which Mother admitted in her rule 34(e) plea
met the statutory requirements of abuse. Because Mother did not
preserve this issue below, she seeks review under the plain error
doctrine. To establish plain error, Mother must show that “(i) an
error exists; (ii) the error should have been obvious to the trial
court; and (iii) the error is harmful, i.e., absent the error, there is

3. Rule 23B (remand for findings necessary to adjudicate an
ineffective assistance of counsel claim) does not apply in child
welfare matters. See Utah R. App. P. 1(f) (stating that “Rules 9
and 23B do not apply” to child welfare proceedings). The
concurring opinions of Judge Harris and Judge Orme address
the remand procedure identified in In re S.H. as it intersects with
the Utah Rules of Appellate Procedure. See infra ¶¶ 35–41.

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a reasonable likelihood of a more favorable outcome for the
appellant, or phrased differently, our confidence in the verdict is
undermined.” In re J.C., 2016 UT App 10, ¶ 12, 366 P.3d 867
(quotation simplified). “If any one of these requirements is not
met, plain error is not established.” State v. Johnson, 2017 UT 76,
¶ 20, 416 P.3d 443 (quotation simplified).

¶11 Mother also asks this court to determine whether Trial
Counsel rendered ineffective assistance when she advised
Mother to enter rule 34(e) admissions without adequately
investigating the facts of the abuse allegations. “An ineffective
assistance of counsel claim raised for the first time on appeal
presents a question of law.” In re S.S., 2015 UT App 230, ¶ 20,
360 P.3d 16 (quotation simplified).

ANALYSIS

I. Error of the Juvenile Court

¶12 Mother first asserts that the juvenile court erred when it
found that she had abused the Children without making a
“subsidiary finding that the abuse had caused the [Children]
harm.” To prevail on a claim of “plain error,” Mother “must
establish that (i) an error exists; (ii) the error should have been
obvious to the juvenile court; and (iii) the error is harmful.” See
In re T.M., 2003 UT App 191, ¶ 26, 73 P.3d 959 (quotation
simplified). Under the circumstances of this case, Mother cannot
establish that the court erred in finding that Mother abused at
least one of the Children and therefore cannot establish that the
court would have ordered a different child and family service
plan or reached different conclusions about the primary
permanency goal even if it had not found that Mother abused
the Children with household items and caused them harm.

¶13 The juvenile court found that the Children were “abused,
neglected, and dependent” and, in its adjudication order,
included reference to allegations that Mother punished the
Children with “a fork, a belt, a stick, and other items” and that

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Mother collared one child and caused him to choke. Mother
argues that simply stating that she punished the Children with
objects and collared one child did not adequately support the
court’s finding of abuse. Instead, she contends that the juvenile
court was required to enter findings detailing the specific harm
she caused the Children, given that the definition of “abuse” of a
child under Utah law includes “nonaccidental harm” and
“threatened harm.” 4 See Utah Code Ann. § 78A-6-105(1)(a)(i)
(LexisNexis Supp. 2019). And “harm” includes “physical or
developmental injury or damage.” Id. § 78A-6-105(28).

¶14 As support for her assertion that the juvenile court
committed an obvious error, Mother cites In re K.T., 2017 UT 44,
424 P.3d 91, for the proposition that the court’s order was
insufficient and should have contained detailed findings of what
harm Mother’s actions caused the Children. Id. ¶ 9 (“To find
abuse under Utah law, a court must find harm.”). But In re K.T.
does not require a court to make a specific finding of harm,
labeled as such. Rather, it “allow[s] the juvenile court to infer
harm” based on the evidence presented. Id. ¶ 14. Here, the facts

4. Utah law requires the juvenile court to conduct a disposition
hearing “[i]f, at the adjudication hearing, the court finds, by clear
and convincing evidence, that the allegations contained in the
petition are true.” Utah Code Ann. § 78A-6-311(1) (LexisNexis
2018). As our supreme court stated in In re K.T., 2017 UT 44, 424
P.3d 91,
The clear and convincing standard demands the
introduction of evidence that makes “the existence
of the disputed facts . . . very highly probable.”
[Applying this principle] to the case before the
juvenile court, the State needed to present evidence
that would allow the court to conclude that it was
very highly probable that the children had been
harmed.
Id. ¶ 9 n.3 (quotation simplified) (quoting Lovett v. Continental
Bank & Trust Co., 286 P.2d 1065, 1067 (Utah 1955)).

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Mother admitted at the adjudication hearing, see Utah R. Juv. P.
34(e), were sufficient for the court to find that at least one of the
Children was harmed by Mother’s abusive behavior: While at a
family counseling center, a witness observed Mother grab one
child by the shirt collar with such force as to “restrict[] his ability
to breathe and cause[] him to choke” as she forced his face into a
corner. Mother continued to restrain the child even when the
child told Mother that she was “hurting him” and that “he was
having difficulty breathing.” The “evidence of the effects” of
Mother’s actions allowed the juvenile court “to conclude that the
[child] had been harmed.” See In re K.T., 2017 UT 44, ¶ 14. The
child informed Mother not only that she was hurting him but
also that he was having trouble breathing and showing signs of
choking. At the very least, we can infer a finding of harm from
the juvenile court’s determination that Mother’s action
“restricted [the child’s] ability to breathe and caused him to
choke.” See Utah Code Ann. § 76-5-109(1)(f)(ii) (LexisNexis 2017)
(“‘Serious physical injury’ includes . . . any impediment of the
breathing or the circulation of blood by application of pressure
to the neck, throat, or chest, or by the obstruction of the nose or
mouth, that is likely to produce a loss of consciousness . . . .”); see
also State v. Stettina, 635 P.2d 75, 78 (Utah 1981) (“[M]aking it
difficult [for a victim] to breathe . . . could reasonably place [a]
victim in apprehension of bodily harm.”).

¶15 Though Mother has submitted additional non-record
evidence intended to challenge some of the other incidents of
abuse described in the court’s written decision, Mother has not
offered much of a defense against the shirt-collar incident. She
asserts only that the witness who reported the incident did not
have a clear view of the events because Mother’s body was
between the witness and the child. But Mother has not alleged
that the incident did not occur or that it did not result in the
child choking. 5 Accordingly, the juvenile court had before it clear

5. Mother asserts that the juvenile court could have considered
the collaring incident “as reasonable discipline or appropriate
(continued…)

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and convincing evidence that established that Mother abused
one of the Children and that the abuse caused that child harm.

¶16 With regard to the other allegations of abuse involving
Mother punishing the “Children with a fork, a belt, a stick, and
other items,” however, the juvenile court did not infer, let alone
articulate, a finding of harm related to any of those incidents.
This lack of articulating a finding of harm is problematic. See In
re K.T., 2017 UT 44, ¶ 15 (stating that a finding that a parent “hit
a child with another object” did not necessarily include an
inference of harm, because the strike could have been delivered
“lightly so that it did not cause” harm).

¶17 But even if we assume the court’s findings of abuse with
regard to the household items are incomplete, Mother cannot
show that she was prejudiced by the court’s error, because we
have determined that evidence of the shirt-collar incident,
standing alone, fully supported the court’s abuse finding with
regard to one of the Children, and on appeal Mother has not
contested the court’s neglect and dependency determination
with regard to any of the Children. In this case, Mother cannot
show a reasonable likelihood of a different outcome at the
adjudication hearing even if the juvenile court had not included
the household abuse facts in the adjudication order at all or if it

(…continued)
physical restraint that is precluded from the abuse definition.”
We find this argument unpersuasive. Restraining a young child
in such a way as to choke him cannot be considered reasonable.
See Utah Code Ann. § 76-5-109(1)(f)(ii) (LexisNexis 2017)
(“‘Serious physical injury’ includes . . . any impediment of the
breathing or the circulation of blood by application of pressure
to the neck, throat, or chest, or by the obstruction of the nose or
mouth, that is likely to produce a loss of consciousness . . . .”); id.
§ 76-2-401(2) (stating that the defense of justifiable conduct
involving reasonable discipline of a minor “is not available if the
offense charged involves causing . . . serious physical injury”).

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had determined that no abuse occurred during the household
incidents. Even in that event, the Plan would have been the
same, and the primary permanency goal entered by the court
would still have been reunification. Accordingly, we cannot
conclude that the juvenile court committed plain error, and we
therefore affirm the court’s adjudication order.

II. Ineffective Assistance of Counsel

¶18 Mother also claims that Trial Counsel provided ineffective
assistance in failing to conduct an adequate investigation into
the facts of the abuse allegations against her. Specifically, Mother
asserts that if Trial Counsel had investigated the State’s
allegations of abuse more diligently, Trial Counsel would have
discovered exculpatory evidence that would have refuted the
allegations of abuse involving punishment using household
items, including a hammer, fork, belt, and stick. Thus, Mother
asserts that Trial Counsel performed deficiently in advising her
to enter admissions pursuant to rule 34(e) of the Utah Rules of
Juvenile Procedure without first undertaking a sufficient
investigation to uncover this exculpatory evidence.

¶19 To prevail on an ineffective assistance of counsel claim,
Mother must show that (1) “counsel’s performance was
deficient” and (2) this “deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984); see
also In re E.H., 880 P.2d 11, 13 (Utah Ct. App. 1994) (stating that
parents are entitled to effective assistance of counsel in child
welfare proceedings and adopting “the Strickland test to
determine a claim for ineffective assistance of counsel in
proceedings involving termination of parental rights”). “Because
failure to establish either prong of the test is fatal to an
ineffective assistance of counsel claim, we are free to address
[Mother’s] claims under either prong.” See Honie v. State, 2014
UT 19, ¶ 31, 342 P.3d 182.

¶20 To show that Trial Counsel performed deficiently, Mother
must overcome the strong presumption that Trial Counsel

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rendered adequate assistance by persuading the court that
“considering all the circumstances, counsel’s acts or omissions
were objectively unreasonable.” State v. Scott, 2020 UT 13, ¶ 36,
462 P.3d 350. In other words, Mother must show that her
“counsel rendered a deficient performance in some
demonstrable manner, and that counsel’s performance fell below
an objective standard of reasonable professional judgment.” See
State v. Martinez, 2020 UT App 69, ¶ 29, 464 P.3d 1170 (quotation
simplified), petition for cert. filed, July 20, 2020 (No. 20200556).

¶21 To establish prejudice, Mother must “demonstrate a
reasonable probability that the outcome of . . . her case would
have been different absent counsel’s error. A reasonable
probability is a probability sufficient to undermine confidence in
the outcome of the proceeding.” Scott, 2020 UT 13, ¶ 43
(quotation simplified).

¶22 Because the juvenile court’s adjudication findings
regarding allegations of abuse involving punishment using
household items have two distinct applications, our examination
of Mother’s ineffective assistance claim is necessarily bifurcated
with respect to the imminent use (namely, the court’s disposition
and the formulation of the Plan) and prospective impact
(namely, possible impact on this child welfare proceeding and in
the future) of the court’s findings of abuse. Even if we assume
that Trial Counsel performed deficiently in failing to fully
investigate the facts supporting the allegations of abuse with
household items, we are confident Mother was not prejudiced by
the inclusion of those findings with regard to the development of
and the requirements contained in the Plan. However, if Trial
Counsel did fail to fully investigate the facts supporting the
allegations of abuse and therefore performed deficiently in
advising Mother to enter the rule 34(e) admissions, we are
concerned that inclusion of those findings of abuse with
household items in the adjudication order might prospectively
prejudice Mother in her effort to successfully reunite with the
Children in the future. Because this court does not consider new
evidence on appeal, see Utah R. App. P. 11(a) (“The original

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papers and exhibits filed in the trial court . . . shall constitute the
record on appeal in all cases.”), we must remand for an
evidentiary hearing and direct the juvenile court to make factual
findings regarding whether Trial Counsel performed deficiently
by not fully investigating the allegations of abuse, and if so,
whether Mother was prejudiced by following the advice of
counsel to enter admissions rather than deny the allegations in
the petition. We address the immediate and prospective
application of the findings in turn.

A. Application of Disputed Facts to the Court’s Disposition
and to the Plan

¶23 For the purpose of analyzing the effect of the juvenile
court’s adjudication and disposition, we assume, without
deciding, that Trial Counsel performed deficiently in failing to
investigate, resulting in Mother’s rule 34(e) admissions and the
court’s finding that Mother abused the Children with certain
household objects. However, as discussed above, even if all the
facts surrounding abuse involving household objects are
excluded (i.e., all abuse allegations except the shirt-collar
incident), Mother was not prejudiced by the court’s
consideration of this evidence at the adjudication hearing,
because the exclusion of these putative facts would not have
changed the court’s reunification goal or changed the Plan itself.
Although Mother concedes that there was a basis for the finding
of neglect against her, she argues that if she “just had a neglect
finding—based on the findings of an unclean home and
inadequate lunches—[her] future with [the Children] would be
much less precarious.” 6

¶24 But Mother’s evaluation is unpersuasive in several
respects because it looks primarily to the long-term effects of the

6. As noted above, Mother does not challenge the findings of
neglect or dependency reached by the juvenile court in its
adjudication.

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inclusion of disputed facts—an issue we address below, see infra
¶¶ 28–32—and does not focus on whether the disputed facts had
an impact on the court’s adjudication decision (for instance, on
the court’s disposition or on the requirements of the Plan). And
the juvenile court’s findings regarding the shirt-collar incident
and other neglect which dictated the Plan’s requirements are
well-supported. Our analysis of the Plan suggests that the
disputed abuse facts had little to no impact on its provisions. The
Plan primarily focuses on interventions necessary to assist
Mother in acquiring parenting and life skills so that she will be
able to provide an environment in which the Children can be
safe, loved, nurtured, and protected. The Plan also focuses on
the need for Mother to continue personal therapy and to resolve
the pending legal issues she faces. Indeed, the Plan explicitly
states that Mother does not appear to be “an inherently violent
or antisocial individual.” Rather, the Plan characterizes her as
lacking “the parenting skills needed to effectively manage [the
Children’s] emotional and behavioral issues.”

¶25 Mother also downplays the finding of rather serious
abuse related to the shirt-collar incident. Those provisions of the
Plan that require Mother to provide an environment free from
physical abuse could certainly have been necessitated by this
incident alone. See Utah Code Ann. § 62A-4a-205(8)(h)
(LexisNexis Supp. 2019) (“[A] child and family plan may only
include requirements that . . . address findings made by the
court . . . .”) As addressed above, Mother has not offered much
of a defense against this abuse allegation other than asserting
that the witness who reported the incident did not have a clear
view of the incident because Mother’s body was between the
witness and the child. Nowhere does Mother challenge that the
incident occurred or that it resulted in the child choking. And
because the finding of abuse related to the shirt-collar incident
was considered in crafting the appropriate child and family
service plan for this family to address the problems and needs of
the whole family, Mother cannot show that the Plan would have
differed or that the court would have entered a different

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disposition had the court’s adjudication order not contained
findings regarding the other incidents of abuse.

¶26 Finally, the juvenile court rightly did not overlook that
this family has had a history of DCFS involvement for nearly a
decade. Four prior investigations were closed because DCFS was
unable to locate the family. Two recent situations giving rise to
DCFS intervention with this family were supported by
administrative findings of non-supervision and emotional abuse
involving two of the Children. The juvenile court was well
aware of this history and recounted this involvement in the
findings of its adjudication order.

¶27 In short, given the above circumstances, Mother was not
prejudiced with respect to the immediate result of the
adjudication as it pertains to the court’s disposition and to the
development of the Plan.

B. Prospective Effects of the Disputed Facts

¶28 As to the continued impact of the adjudication order’s
abuse findings involving household items, however, we
determine that Mother may well be prejudiced if those disputed
facts are considered in whether Mother successfully complies
with the requirements of the Plan and on any prospective
application of that information. That is, the findings of abuse in
the adjudication order create a benchmark for everything that
happens in this child welfare case, and they will form the basis
for whether Mother is able to comply with the requirements of
the Plan going forward and whether she can be reunited with
the Children. Thus, those particular abuse findings will continue
to follow her throughout the pendency of this case and in any
future case. 7

7. We agree with Mother that this case seems to present a
situation analogous to an incorrect presentence investigation
(continued…)

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¶29 In the order denying her rule 23B motion, this court told
Mother, “[N]othing in this order shall be construed as
precluding [Mother] from addressing the need for remand or
raising further argument under In re S.H., 2007 UT App 8, 155
P.3d 109, in [her] brief.” Pursuant to our direction, Mother
attached extra-record evidence to her appellate brief suggesting
that the Children’s reports of the abuse, especially with regard to
the use of household items, may have been exaggerated, if not
false.

¶30 In In re S.H., a mother raised a claim of ineffective
assistance of counsel, arguing that her attorney stipulated to
allegations without the mother being present and without her
consent. 2007 UT App 8, ¶ 10. On learning of her attorney’s
conduct, the mother challenged the unauthorized admissions by
filing an affidavit detailing a claim of ineffective assistance of
counsel in conjunction with her petition for appeal. Id. ¶ 15. This
court reasoned that because the admissions stipulated by
her attorney likely prejudiced the mother, remand was
necessary. Id. ¶¶ 16–20. Because “the procedural rules for child

(…continued)
report (PSI) in the criminal context. A PSI can contain
information about a criminal defendant’s family, education,
health, criminal record, and employment history and will follow
a defendant “through the justice system.” See State v. Irey, 2017
UT App 178, ¶ 5, 405 P.3d 876 (quotation simplified). Though
incorrect information contained in a PSI will not necessarily
require resentencing if not appropriately corrected, this court
will often order limited remand to the district court to resolve
any contested information contained in the PSI. See State v. Post,
2015 UT App 162, ¶ 11 n.7, 354 P.3d 810 (“Even where
inaccuracies in a PSI do not affect a defendant’s sentence, it is
necessary that the defendant’s objections be resolved on the
record because the statements in a defendant’s PSI may be
utilized in future settings, such as parole hearings.” (quotation
simplified)).

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welfare appeals clearly contemplate claims for ineffective
assistance of counsel,” “we remand[ed] to the juvenile court for
an evidentiary hearing and direct[ed] the juvenile court to make
factual findings regarding [the mother’s] ineffective assistance of
counsel claim.” Id. ¶ 16; see also Utah R. App. P. 55(b) (explaining
that claims of ineffective assistance of counsel should be raised
on appeal in juvenile cases).

¶31 Here, Mother contends that Trial Counsel “performed
deficiently and unreasonably when she did not investigate the
case.” To that end, Mother has attached extra-record evidence
uncovered by Conflict Counsel to her appellate brief. This
evidence includes (1) a statement from a babysitter that may
exonerate Mother, (2) police reports from February 2019 in
which all the Children but one denied abuse by Mother, and (3)
a transcript of the conversation recorded by a police body
camera at the time of Mother’s arrest that Mother contends
shows the Children were removed from her care not for abuse
but because a DCFS worker thought Mother was “psycho.” If
this evidence proves credible and was reasonably available
before Trial Counsel advised Mother to enter admissions to the
alleged abuse involving household items, it could support a
determination that Mother received ineffective assistance
because such information might undermine the propriety of
Trial Counsel’s advice that Mother not contest the factual
findings presented by the State.

¶32 Because we do not consider extra-record evidence on
appeal, “the juvenile court is in a far better position to evaluate
the evidence than an appellate court.” In re K.B., 2017 UT App
210, ¶ 14, 407 P.3d 1084 (quotation simplified). We thus remand
to the juvenile court to conduct the procedure outlined in In re
S.H. to make a determination of whether deficient performance
on the part of Trial Counsel induced Mother to enter the
disputed admissions under rule 34(e). And “while we do not
conclude that Mother’s counsel was ineffective, we note that
should the juvenile court find that Mother’s counsel failed to”
adequately investigate the case and wrongly advised Mother to

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enter a rule 34(e) plea to the petition rather than contest the
allegations, then such failures may well require the juvenile
court to issue a revised adjudication order as it pertains to the
factual findings on the alleged abuse involving household items.
See In re S.H., 2007 UT App 8, ¶ 17.

CONCLUSION

¶33 We conclude that Mother was not prejudiced by any error
of the juvenile court in not entering specific findings of harm or
any deficiency by Trial Counsel insofar as it concerns the court’s
disposition and formulation of the Plan. However, because
Mother may be prejudiced in her ability to comply with the Plan
and because extra-record evidence indicates that Trial Counsel
may have failed to adequately investigate the allegations in the
petition, we remand to the juvenile court to conduct an
evidentiary hearing regarding Mother’s allegations of ineffective
assistance with regard to the findings of fact in the adjudication
order related to abuse involving household items.

¶34 Affirmed in part and remanded.

HARRIS, Judge (concurring):

¶35 I concur in the lead opinion without reservation. I write
separately to expand on the lead opinion’s observation, see supra
note 3, that rule 23B of the Utah Rules of Appellate Procedure
does not apply in child welfare cases, and to wonder aloud
about the extent to which our opinion in In re S.H., 2007 UT App
8, 155 P.3d 109, is in conflict with the text of rule 1 of the Utah
Rules of Appellate Procedure. That rule states, in no uncertain
terms, that “Rules 9 and 23B do not apply” in child welfare
proceedings. See Utah R. App. P. 1(f). Rule 23B, of course, is the
rule that creates a procedure by which litigants can seek leave to
submit extra-record material in support of an appellate claim of

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ineffective assistance of counsel. See State v. Litherland, 2000 UT
76, ¶¶ 13–14, 12 P.3d 92 (stating that rule 23B “was specifically
designed to address” “the dilemma created by an inadequate
record of counsel’s ineffectiveness”). On its face, the language of
rule 1(f) makes plain that our appellate rules afford no
mechanism, in child welfare cases, for appellate litigants to
introduce extra-record evidence in support of claims that their
trial counsel was ineffective; there is at least an implication that,
under the rules, such litigants may use only record evidence to
support those claims. 8

¶36 Despite the language of rule 1(f), which was in effect at
the time, see Utah R. App. P. 1(f) (2006), our opinion in In re S.H.
went ahead and allowed a party to obtain a rule 23B-like remand
so that the juvenile court could consider certain extra-record
evidence, including an affidavit, that the litigant filed for the first
time on appeal. See 2007 UT App 8, ¶¶ 15–16. We stated that,
“[b]y not allowing [the litigant] to submit record evidence

8. The drafters of rule 1(f) did not explain the rationale for
making rule 23B inapplicable in child welfare proceedings,
and—given that we must base our decisions on the text of the
rule, and not on our own notions of what the drafters might
have intended, see, e.g., Hughes Gen. Contractors, Inc. v. Utah Labor
Comm’n, 2014 UT 3, ¶ 29, 322 P.3d 712 (stating that “the
interpretive function for us is not to divine and implement the
statutory purpose, broadly defined,” but instead is to “construe
its language”)—their unstated rationale is not directly relevant
anyway. But it does not take much imagination to envision a
reason why the drafters might have wanted to limit child
welfare litigants to record evidence in making claims for
ineffective assistance: rule 23B remand proceedings often take
quite a bit of time, and speed is often at a premium in child
welfare cases. See In re K.C., 2015 UT 92, ¶ 27, 362 P.3d 1248
(stating that “[c]hildren have an interest in permanency and
stability,” and that “[t]he expeditious resolution of a termination
proceeding may well be of paramount importance”).

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regarding her ineffective assistance of counsel claim, we would
effectively deny [the litigant’s] right to raise that claim.” Id. ¶ 16.
We did not explain our authority for taking action in apparent
contravention of rule, and we did not set forth any parameters
(such as the deadlines and procedures set out in the actual text of
rule 23B) advising litigants about how to go about availing
themselves of the newly-announced procedural mechanism.

¶37 Since In re S.H. was decided, we have treated that opinion
as creating a procedural mechanism, akin to rule 23B but not
exactly like rule 23B, that allows litigants in child welfare
proceedings to submit extra-record evidence in support of
appellate claims of ineffective assistance. Typical is the order we
issued earlier in this case, denying Mother’s rule 23B motion
(because the rule does not apply) but allowing her to do
essentially the same thing rule 23B would have allowed her to
do, if it applied, by advising her to proceed pursuant to In re S.H.

¶38 I take no issue with the majority’s application of In re S.H.
in this case, because it is our precedent, and no party to this case
has asked us to reexamine it. See State v. Legg, 2018 UT 12, ¶ 11,
417 P.3d 592 (“Stare decisis mandates that one panel of the court
of appeals defer to the decision of a prior panel.”). But
it certainly appears to me as though In re S.H. might
merit reexamination in an appropriate case where, after
full briefing and argument, we might analyze whether that
case is in harmony with our rules of appellate procedure and, if
not, whether there exists a valid basis—for instance,
through inherent judicial power, as Judge Orme suggests, see
infra ¶ 41—for our court to create such a mechanism on its own.

ORME, Judge (concurring):

¶39 I concur in the lead opinion. I write separately to offer a
counterpoint to Judge Harris’s concurring opinion, in which he
questions the basis on which we have remanded cases such as

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this one to vindicate a parent’s right to the effective assistance of
counsel.

¶40 While it is true that In re S.H., 2007 UT App 8, 155 P.3d
109, does not elaborate on the basis for the authority by which
we permitted a remand mechanism in child welfare cases,
arguably at odds with rule 1(f) of the Utah Rules of Appellate
Procedure, 9 I do not believe that this is problematic for two
reasons—three if one includes the point made in footnote 9.
First, parents involved in parental termination proceedings have
an unquestioned right to the effective assistance of counsel, see In
re E.H., 880 P.2d 11, 13 (Utah Ct. App. 1994), and it seems
obvious that to actualize that right in some termination cases, a
remand procedure not unlike rule 23B for criminal cases must
exist. Otherwise, how could this important issue come before us
in cases such as this one, where the record would not allow us to
determine whether a parent received the effective assistance of
counsel? Because there is a right to the effective assistance of
counsel during a parental-rights-termination proceeding, there
must be a procedure by which we can assess whether that right
was violated when such a claim is asserted and substantiated but
the critical information is not part of the record on appeal.
Without such a procedure, this “important right would ring
hollow in the halls of justice.” Swekel v. City of River Rouge, 119
F.3d 1259, 1262 (6th Cir. 1997). I suspect that this realization,
rather than some oversight or laxity in advocacy, explains why
neither the Attorney General nor the Office of Guardian ad

9. I do not read as much into rule 1(f) of the Utah Rules of
Appellate Procedure as Judge Harris does. As concerns rule 23B,
it merely states the obvious. Rule 23B is, by its own terms,
limited to criminal cases. See Utah R. App. P. 23B(a).
Parental-rights-termination cases are not criminal cases. With or
without rule 1(f), rule 23B would not apply to termination cases
or any other civil proceeding.

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Litem has, in this case or in any other in the thirteen years since
this court issued In re S.H., seen fit to question it. 10

¶41 Second, although our rules of appellate procedure do not
explicitly allow us to remand a termination case to develop a
record of counsel’s claimed ineffective assistance, this is not
dispositive of our ability to do so. In my view, we can do so in

10. It is important to note that before the adoption of rule 23B,
when we were confronted with this issue in criminal cases and
did not remand the case to have the record developed on the
claimed ineffective assistance, we were quick to point out that a
defendant had the ability to vindicate his or her right to the
effective assistance of counsel through a post-conviction petition.
See, e.g., State v. Cummins, 839 P.2d 848, 858–59 (Utah Ct. App.
1992) (“[W]hen the trial record is inadequate to permit a
determination that defendant’s case has clearly been prejudiced
by defense counsel’s deficient performance at trial, defendant is
precluded from raising his ineffective assistance claim on appeal
and must seek relief through post-conviction or habeas corpus
proceedings.”); State v. Montes, 804 P.2d 543, 546 n.3 (Utah Ct.
App. 1991) (“To the extent counsel’s failure to raise these issues
might be taken as ineffective assistance, if [the defendant]
pursues his claims on habeas corpus, that will be the appropriate
time to develop an evidentiary record addressing these issues.”).
See also State v. Litherland, 2000 UT 76, ¶ 13, 12 P.3d 92 (“In short,
the dilemma of an inadequate record created a regime that
tended to channel ineffectiveness claims into the habeas arena,
where the defendant faced numerous burdens not present on
direct appeal.”). But in the context of parental-rights-termination
proceedings, there is no similar avenue, and if we did not have a
mechanism to remand to develop the record on direct appeal,
parents would have no meaningful remedy by which to
vindicate their right to the effective assistance of counsel.

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the sound exercise of our inherent power. 11 See United States v.
Calandra, 414 U.S. 338, 348 (1974) (describing the exclusionary
rule as “a judicially created remedy designed to safeguard
Fourth Amendment rights generally through its deterrent
effect”). Thus, In re S.H. is best understood as an appropriate
exercise of our inherent power to improvise such procedures as
may be necessary to resolve important issues such as a parent’s
constitutional right to the effective assistance of counsel, and in
doing so we avoid burdening parents “with a catch-22 unique to
claims of ineffectiveness of trial counsel,” when “counsel’s
ineffectiveness may have caused, exacerbated, or contributed to
the record deficiencies,” State v. Litherland, 2000 UT 76, ¶ 12, 12
P.3d 92, over which the affected parent had no control.

11. Ultimately, I am not convinced that rule 23B was even
necessary to give appellate courts the power in criminal cases to
supplement the record on appeal to get to the bottom of a
constitutionally based claim such as the ineffective assistance of
counsel. In my view, rule 23B came into existence not because
such a rule was strictly necessary to create that opportunity but
to regularize and refine it by setting standards, deadlines, and
procedures governing such remands. And as previously noted,
there was not a compelling need for the appellate courts to
exercise their inherent authority and improvise such a procedure
in the criminal context before rule 23B came into existence
because criminal defendants had the opportunity to pursue such
claims and develop the necessary evidentiary record in a
post-conviction proceeding. But there is no analogous avenue
available to parents whose parental rights have been terminated.

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