S.E. v. State

CHRISTIAN SEN Judge

(concurring):

{34 I concur with the majority's opinion that Mother received ineffective assistance of *23counsel 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 ab-sentecism 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 diagnosed substance-abuse or mental health issues,15 in the context of the abandonment and neglect at issue here, I believe the ree-ord 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 8.8. 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.8. 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 antisocial and criminal behavior. All of these failures to comply with her Child and Family Plan compounded the 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 State ex rel. 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.

1 86 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 $8.8. 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-6-508 (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. § T8A-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 *241982), 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 of demonstrating that Trial Counsel provided her with objectively deficient assistance." See supra 132. Accordingly, Mother should have a new trial with representation by competent counsel gt which she can attempt to demonstrate just cause for her decisions.

. The majority opinion states that there is no suggestion in the record that Mother had substance-abuse issues. See supra 126. However, Mother's Child and Family Plan required her to undergo random drug tests and obtain a mental health assessment.