In re K.J... ( 2024 )

2024 UT App 47THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF K.J., M.J., AND K.J.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
D.F. AND K.J.,
Appellants,
v.
STATE OF UTAH,
Appellee.
Opinion
Nos. 20230102-CA and
20230103-CA
Filed April 4, 2024
First District Juvenile Court, Logan Department
The Honorable Bryan P. Galloway
No. 1218130
Alexandra Mareschal, Kirstin Norman, and Jason B.
Richards, Attorneys for Appellant D.F.
Emily Adams, Attorney for Appellant K.J.
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES GREGORY K. ORME and JOHN D. LUTHY concurred.
HARRIS, Judge:
¶1 In separate appeals that we consider together in this
opinion, K.J. (Father) and D.F. (Mother) (collectively, Parents)
challenge the juvenile court’s orders removing their three children
(Children) from their home and, later, adjudicating the Children
abused and neglected. Parents’ main challenge concerns the
In re K.J.
court’s adjudication that they abused and neglected the Children.
Parents also assert that, in one respect, they received ineffective
assistance of counsel. For the reasons discussed, we find Parents’
arguments on these two topics unpersuasive.
¶2 But Parents also assert that, during the shelter hearing held
at the beginning of the case, the juvenile court did not undertake
a proper and complete analysis of the factors the governing
statute required the court to consider. In this respect, Parents’
arguments have merit, and we remand the case so that the
juvenile court can conduct the proper statutory analysis.
BACKGROUND
¶3 Parents are the legal and biological parents of three
“medically complex” children: Kevin, Mia, and Kaleb. 1 The family
moved to Utah in 2022, after having lived in Nevada and Arizona;
at that time, Kevin was five years old, Mia was four, and Kaleb
was not quite two. Parents believed that the Children suffered
from a long list of various medical maladies; when the family
arrived in Utah, all three Children—despite having largely
different medical diagnoses—had surgically placed gastric
feeding tubes (G-tubes), were developmentally delayed, and used
wheelchairs for mobility.
¶4 In July 2022, Kevin was rushed to a local hospital by
ambulance after Mother reported that he had suffered a seizure.
Mia was hospitalized at the same time due to concerns about
weight and dehydration. Kevin and Mia were transferred to
Primary Children’s Medical Center (PCMC) in Salt Lake City;
Kevin was treated with IV fluids to address “severe
hypernatremia” due to dehydration. Kevin and Mia ended up
1. For readability, we use pseudonyms (rather than initials) to
refer to the Children.
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staying at PCMC for nearly two weeks, and Kevin was even
admitted to the pediatric intensive care unit. While Kevin and Mia
were at PCMC, medical professionals there became concerned
that they were being medically neglected. In particular, hospital
personnel observed that Kevin and Mia were “severely
underweight,” despite the presence of G-tubes, and “were
considered a failure to thrive.”
¶5 After Kevin and Mia were discharged from PCMC, all
three Children were referred to a pediatric nurse practitioner
(Nurse Practitioner) for follow-up primary care. When the
Children arrived at her medical clinic, Nurse Practitioner
discovered that the Children—partly due to only recently having
arrived in Utah—were not yet set up for medical insurance. But
after examining the Children, Nurse Practitioner agreed to treat
them anyway, despite their lack of insurance, because in her view
“it was medically necessary to see them regardless of the
insurance difficulties.” As she saw it, “these kids needed medical
care whether [she] got paid” or not, because they were facing
“significant medical issues” that she considered potentially “life
and death” matters. The Children arrived at her clinic in
wheelchairs and were developmentally delayed and nonverbal.
None were toilet trained. Over the course of her treatment—
which lasted several weeks—Nurse Practitioner also observed
that the Children had not been “gaining [weight] as they [had
been] in the hospital,” which made her wonder whether the
Children might at some point need “to be rehospitalized.”
¶6 A few weeks later, a pediatrician (Pediatrician) was
assigned to the Children. When he first saw the Children, he
observed that they were all “nonverbal,” and while Kevin had
some ability to walk on his own, Mia and Kaleb were
“nonambulatory.” During the course of his treatment of the
Children, he worked with them to improve their motor skills and
their ability to walk, and he monitored their weight, which he
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indicated was the thing he was “following most closely.” Soon
after Pediatrician took over primary care of the Children, Kaleb
came in for his “two-year well[ness] visit.” During that visit,
Mother indicated that Kaleb had spina bifida, which is “a neural
defect at the base of the spine” that can often be fixed with
surgery. Mother insisted that Kaleb had already had the surgery
to correct the spina bifida, and she even pointed to Kaleb’s back
where she indicated there was a scar from the surgery. But
Pediatrician saw no scar.
¶7 At some point after Kevin and Mia were released from
PCMC, a physician at Nurse Practitioner’s clinic contacted the
Utah Division of Child and Family Services (DCFS) to notify them
about potential issues with the Children. Thereafter, DCFS
assigned caseworkers to investigate the matter, and those
caseworkers made some ten visits to Parents’ home, prior to
removal, to check on the Children and to assess the situation.
These visits occurred at different times of day, yet in every visit
except for one, the Children were all confined in “Pack ‘n Play”
playpens. Parents stated that the Children needed to be in the
playpens so that their G-tubes could function properly, but
caseworkers observed that Parents had—but were not using—
portable devices that would have maintained a “continuous feed”
from the feeding tubes without restricting the Children’s
movement. On one visit, one of the caseworkers asked Mother to
show her the Children’s medications, and in response Mother
brought out a large “two feet by three feet” sized tote bag “full of
prescription bottles and different ointments.” During this time,
Kevin—who was five years old and eligible to begin
kindergarten—was not enrolled in school and therefore was not
receiving any of the services a school could potentially provide to
a medically complex child.
¶8 In addition to receiving primary care from Nurse
Practitioner and Pediatrician , the Children were also referred to
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and treated by the Pediatric Complex Care Clinic at PCMC. They
missed their first scheduled appointment with the clinic, which
caused the lead physician there (Physician) a great deal of
concern, because she knew that “it was critical that [PCMC]
follow up with” the Children. Physician notified DCFS of the
missed appointment, which was eventually rescheduled for about
three weeks later.
¶9 At that rescheduled visit, Mother reported to Physician
that the Children were all suffering from “dysphagia,” which is
the “inability to swallow food properly.” Physician observed that
Kevin and Mia had “continued to lose weight” since their
discharge from the hospital. This was troubling, because the
Children all had G-tubes, which exist primarily to make sure the
Children are receiving enough nutrition; as one member of the
PCMC team testified, “a child with a G-tube whose caregiver is
fully responsible for that nutrition intake should not be
experiencing failure to thrive in the absence of a disease or
pathology that could cause failure to thrive.”
¶10 PCMC doctors investigated whether there could be any
medical reason for the Children’s continued malnutrition and
failure to gain weight, and eventually concluded that “none of the
[C]hildren [had] a pathology consistent with a disease process
that could cause failure to thrive.” Indeed, the PCMC team
eventually determined that the Children’s “malnourishment and
poor growth [were] directly related to insufficient caloric intake,”
despite their G-tubes, and that the Children’s “failure to thrive
was not due to their medical conditions but due to [Parents’]
neglect . . . in feeding them appropriately.”
¶11 In addition, after her examination of the Children,
Physician was concerned “that the [medical] history being
provided by” Parents was “not consistent with what” she was
“seeing on physical exam.” Given these concerns, the PCMC team
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then set out to review the Children’s various medical diagnoses,
as reported by Parents, with the goal of verifying or eliminating
each of them. As reported by Parents, the Children suffered from
the following medical maladies, among others:
• Kevin had suffered a stroke either in utero or shortly
after birth, and had Ehlers-Danlos syndrome, Erb’s
palsy, a seizure disorder, hearing loss, premature birth,
sleep apnea, and an “allerg[y] to the sun.”
• Mia had DiGeorge syndrome, blindness, hearing loss,
premature birth, cerebral palsy, and prediabetes.
• Kaleb had spina bifida, gastroparesis, premature birth,
clubfoot affecting both feet, urinary retention issues
that required catheterization, and hydrocephalus.
In an effort to confirm these diagnoses, the PCMC team requested,
obtained, and reviewed over 7,000 pages of medical records
regarding the Children, including records from Nevada and
Arizona. After completing their review, and after examining the
Children both before and after removal, the PCMC team was able
to confirm some of the diagnoses. For instance, Kaleb does suffer
from clubfoot in both feet, and Mia does have a genetic disorder
similar to DiGeorge syndrome. But with regard to most of the
diagnoses, the PCMC team concluded that Parents’ assertions
were simply unsupported by any medical evidence. In particular,
they eventually determined that Kevin does not suffer from
Ehlers-Danlos syndrome or any seizure disorder, and that he did
not have a stroke either in utero or shortly after birth; that Mia
was not legally blind; and that Kaleb did not have spina bifida or
hydrocephalus and did not need catheterization.
¶12 Based on these conclusions, and on their examination of
the Children, the PCMC team determined that Kevin and Kaleb
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“had been the victim[s] of” “medical child abuse,” 2 and that the
team had “serious concerns” in that regard about Mia. They called
for “hospital admission” for the Children to “de-escalate elements
of [their] care that are unfounded” and to “restart crucial
interventions that have been ignored,” with a focus on “nutrition
and aiding age-appropriate development.” And they
recommended “development of a long-term plan for trauma-
informed counseling and adherence to broad therapies, including
speech therapy, occupational therapy, and physical therapy.”
¶13 The PCMC team then met with DCFS caseworkers to
explain their findings. Based in part on the information its agents
learned at that meeting, the State determined to seek removal of
the Children from Parents’ home, and the very next day the State
sought and obtained a removal warrant.
¶14 After obtaining the warrant, DCFS caseworkers traveled to
Parents’ home to remove the Children. When they arrived, the
caseworkers again found the Children in their playpens. Parents
were cooperative, however, and Mother changed the Children’s
clothes in preparation for the drive to PCMC. One caseworker
observed that the Children were “a little stinky” and “had an odor
to them like they hadn’t bathed in a few days.” The drive to the
2. In its reports regarding the Children, the PCMC team stated
that “medical child abuse” is “a form of child maltreatment
characterized by the fabrication or exaggeration of medical
history, symptoms, and even exam findings and/or the induction
of symptoms by a caregiver.” Medical child abuse “occurs when
a child receives unnecessary and harmful or potentially harmful
medical care at the instigation of the caregiver,” and it “results in
manipulation of the medical system leading to child maltreatment
in the form of unnecessary medical examinations, diagnostic
testing . . . , imaging, and invasive procedures.” Medical child
abuse, in the past, was called “Münchausen syndrome by proxy.”
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hospital was uneventful; Kaleb “babbled . . . baby talk,” while
Kevin and Mia were “lethargic” and had a “very flat affect.”
¶15 When the Children arrived at PCMC, hospital staff
immediately noticed that the Children exhibited “very poor
hygiene” and observed that the Children were each double or
triple diapered and that the diapers were “sopping through.”
After the wet diapers were removed, hospital staff discovered that
the Children had “fairly extensive [skin] breakdown in the diaper
area” that was severe enough to require the assistance of the
hospital’s “wound clinic.” Hospital staff noted that these sorts of
wounds do not occur “overnight” and were the result of “there
being wetness on the skin without appropriate response for some
period of time.” The Children also had “irritability and
breakdown” around their G-tube sites; as with the diaper-area
wounds, these wounds also required the assistance of the
hospital’s wound clinic.
¶16 Medical personnel also observed that the Children were
“malnourished and under expected weight for [their] ages.”
Kevin was determined to be “severely malnourished,” while Mia
and Kaleb were determined to be “moderately malnourished.”
And blood tests on Kaleb “revealed abnormalities very
concerning for chronic malnutrition.”
¶17 The doctors considered the Children’s malnutrition to be
concerning, and they set about to discover why the Children were
unable to regularly eat solid food. All three Children were
administered “swallow studies” to determine their “ability to eat
and drink by mouth.” Kevin had such a severe “oral aversion to
food and drink” that hospital personnel were unable to complete
the test, and he was referred to a “speech/language pathologist”
to help him overcome the aversion. Mia was “found to have a
significant oral aversion to liquids,” and was also referred to a
“speech/language pathologist.” Kaleb, on the other hand, was
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determined to have no oral aversion and was “eager to eat and
engaged with all thicknesses of feeds.” Doctors concluded that
Kevin and Mia’s oral aversion was “likely the result of not being
provided with solid food” at home, and that Kaleb’s test results
indicated a “serious concern” that he “did not need a feeding
tube” at all.
¶18 Following removal, the Children stayed in the hospital for
six days “to medically stabilize them and properly diagnose their
conditions” through further examination and testing. During this
time, the PCMC team was (as noted above) able to confirm the
conclusions it had reached based on the earlier records review.
¶19 Upon discharge from PCMC, the Children were placed
into foster care. Kevin and Mia were placed in the same homes, a
temporary one at first for a few weeks before being moved to a
more permanent placement. Kaleb was placed with a different
foster family. Once in foster care, the Children showed rapid and
measurable improvement. After having Kevin and Mia for only
about a month, their foster mother reported that, while Kevin
could only “scootch around the house on his hiney” when he
arrived, he eventually learned not only to walk but to run, and he
could often be seen doing “laps” around the kitchen island. He
also began to allow his teeth to be brushed (something he had
refused to allow at first), had become “a lot more personable” and
affectionate, and began attending kindergarten and “loves
school.” Mia had some ability to walk when she arrived but was
“[v]ery unstable”; over time, however, she had learned to “run
really fast.” The foster mother obtained glasses for Mia, which
helped her navigate the world better. In the beginning, Mia
refused to bathe, and would start “screaming and rocking and
shaking” when asked to do so, but over time had become
accustomed to it and “now she loves bath time.” And Kaleb’s
foster mother reported that Kaleb could not crawl, walk, or talk
when he arrived, but within a few weeks he learned how to not
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only crawl but walk with the help of furniture, and he was able to
say several words.
¶20 The foster parents also reported that they had enrolled the
Children in appropriate schooling. Kevin was enrolled in
kindergarten, where he began to receive speech and occupational
therapy through the school. Mia was enrolled in preschool, where
she was given an individualized education plan that included
speech therapy. And Kaleb was enrolled in a state-run program
known as “Up to Three,” where he was able to obtain physical
and speech therapy.
¶21 With regard to nutrition and weight gain, all three
Children demonstrated swift and marked improvement in foster
care. It wasn’t long before the Children no longer required 24-
hour G-tube feeding; soon, the Children were receiving feedings
through the tube only at night and just two or three times during
the day. All of them were soon eating solid foods; Kevin’s foster
mother reported that he had “tried 20 new foods” and he liked
“spaghetti and pasta and yogurt and ice cream.” Following an
appointment about a month after foster placement, Physician
noted that Kevin “looks to be doing great” and stated that, from
“a weight perspective, he is gaining weight appropriately.” And
she noted that Mia “looked to be in excellent physical health.”
¶22 Soon after the Children were removed from Parents’ care,
Pediatrician set up a meeting to inform Parents of the Children’s
condition and accurate diagnoses. Parents refused to accept the
PCMC team’s conclusion that many of the previous diagnoses
were inaccurate; indeed, Pediatrician described Parents’ reaction
as one of “scoffing and disbelie[f] and unacceptance.” Pediatrician
later stated that, because of Parents’ “blatant disregard of facts
from medical tests and expert opinions from specialists,” he
“would be very worried” about the Children if they were to be
placed back in Parents’ care.
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¶23 In the meantime, legal proceedings began in the juvenile
court. One week after removal, the court held a shelter hearing, at
which it heard testimony from Mother, Father, and one member
of the PCMC medical team. At the conclusion of the hearing, the
court stated that it was “convinced by a preponderance [of the
evidence] that the [C]hildren were being neglected” by Parents.
The court noted that daily oversight of the Children had been
Parents’ responsibility, and that this “oversight was done in a way
that was neglectful.” It specifically mentioned that, upon arrival
at the hospital after removal, the Children all had “soiled” diapers
and “open sores” in the diaper area as well as around the G-tube
sites. The court noted that the Children “needed a great deal more
medical oversight” than they had been getting, and that “at the
very least” the case presented “medical neglect” with a “strong
indication” that there was also “medical abuse.” The court stated
that it had been “up to [Parents] to identify [the issues] and care
for these [C]hildren,” who “were not thriving.”
¶24 After making its findings of neglect, the court finished its
shelter analysis with the following remarks:
The [c]ourt does find that given the current state of
the [C]hildren, exigent circumstances existed with
regards to the removal. The removal was proper. At
this particular time until there is a plan in place, the
continued removal is necessary. Okay? At some
point in time if a plan is in place and the parents
have shown the ability to take into consideration the
current medical condition of the [C]hildren and
have shown the ability to work with the
professionals that are providing that care for the
[C]hildren, I don’t see why it cannot at least be
considered that the ongoing continued removal
would not be necessary. Okay?
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At this point, I just don’t have enough with regards
to that. The only thing I have is that there was
testimony that if placed back in the care of [Parents],
this is going to get worse and worse and worse. I
don’t think that has to be the case really.
So I do find removal proper, . . . [a]nd I do find that
exigent circumstances, emergency circumstances
did exist with relation to the removal at the time the
[C]hildren were removed which absolved [DCFS] of
the need to provide reasonable efforts to keep the
[C]hildren in the home.
¶25 Later, the court issued an order memorializing its oral
ruling. It found that “[t]he lack of physical care that the [C]hildren
received by [Parents] constitutes neglect,” and that the Children
were “clearly not thriving.” The court found that “[r]emoval of
the [C]hildren from the home was proper and in [their] best
interest,” and that it was “contrary to [their] well-being . . . to
remain in the home.” And it found that, “because an emergency
situation . . . existed at the time of removal, . . . any lack of pre-
placement preventative efforts was appropriate and justified.”
¶26 About six weeks later, the juvenile court held an
adjudication trial. Over three trial days, the court heard from
thirteen witnesses, including the involved DCFS caseworkers,
Nurse Practitioner, Pediatrician, the foster parents, and various
members of the PCMC medical team. They all testified about the
events described above. At one point during the trial, the Children
visited the courtroom, an event the court noted for the record,
stating that it “was able to” see the Children and “watch them
interact with” Parents. At the conclusion of the trial, the court took
the matter under advisement.
¶27 Some ten days later, the court issued a lengthy written
ruling in which it summarized the evidence presented at trial and
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then determined that the Children had been abused and neglected
by both Parents. With regard to abuse, the court found that the
Children had “suffered or been threatened with nonaccidental
harm in that unnecessary medical interventions have been
performed that have caused physical harm” to the Children. In
support of this finding, the court pointed to six different
“unnecessary medical interventions”: (1) a CT scan performed on
Kaleb in 2022 that was against medical advice; (2) Mother’s
“[i]ntermittent catheterization” of Kaleb; (3) various medical tests
performed on Kevin that “expos[ed him] to radiation
unnecessarily”; (4) various unnecessary blood draws on Mia;
(5) “bronchoscopies and modified Barium swallow studies”
performed on all three Children that “may not have been
necessary”; and (6) Parents’ actions in “maintaining the
[C]hildren on G-tubes” and “constant[ly] plac[ing]” them in
playpens, actions the court found had “harmed the [C]hildren to
the point that they became unable to eat food orally or develop
the ability to walk.”
¶28 With regard to neglect, the court’s conclusion rested on
two separate grounds. First, the court pointed to the Children’s
condition upon arriving at the hospital, finding that they were
“malnourished” without any “medical reason” and “[d]espite
placement of feeding tubes and 24/7 feeding,” and that they were
“nonverbal and unable to walk” because of parental neglect and
not because of “their medical complexity.” Based on their
condition at the time of removal, the court concluded that the
Children were neglected because Parents had failed “to provide
for their basic physical needs on a day-to-day basis.”
¶29 Second, the court pointed to Parents’ belief that the
Children had various medical maladies, many of which did not
appear to be borne out by medical evidence, noting by way of
example that there is no evidence that Kaleb has spina bifida or
hydrocephalus. In that same vein, the court found that the
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Children “have not received appropriate interventions for their
developmental needs,” noting specifically that Mia had not
received appropriate medical treatment for certain neurological
conditions and that none of the Children had been “enrolled in
any physical therapy, occupational therapy, feeding therapy, or
speech therapy since the family arrived in Utah.” Accordingly, the
court concluded that the Children were neglected because Parents
had “failed or refused to provide proper and necessary
subsistence [and] medical care when required.”
¶30 After finding both abuse and neglect, the court concluded
that “continued removal” was “in the best interest” of the
Children, and that DCFS had “made reasonable efforts to prevent
the removal,” but that those efforts had been “unsuccessful.” The
court ordered that the Children “be placed in [DCFS’s] custody
and guardianship for appropriate placement.”
ISSUES AND STANDARDS OF REVIEW
¶31 Parents now appeal, and they raise three issues for our
review. First, Parents challenge the juvenile court’s
determination, made after the adjudication trial, that they had
abused and neglected the Children. In this context, “we apply
differing standards of review to findings of fact, conclusions of
law, and determinations of mixed questions of law and fact.” In re
M.S., 2023 UT App 74, ¶ 23, 533 P.3d 859 (quotation simplified).
The factual findings underlying an abuse or neglect adjudication
are reviewed deferentially and are reversed only if clearly
erroneous. See In re K.K., 2023 UT App 13, ¶ 21, 525 P.3d 519. But
the court’s ultimate determination regarding abuse or neglect is
reviewed for correctness, because making that determination,
which involves applying a given set of facts to statutory criteria,
“is primarily a law-like endeavor.” See In re M.S., 2023 UT App 74,
¶ 23 (quotation simplified).
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¶32 Second, Parents assert that, in one respect, their attorneys
rendered constitutionally ineffective assistance. “When a claim of
ineffective assistance of counsel is raised for the first time on
appeal, there is no lower court ruling to review and we must
decide whether the [party] was deprived of the effective
assistance of counsel as a matter of law.” State v. Kitzmiller, 2021
UT App 87, ¶ 14, 493 P.3d 1159 (quotation simplified).
¶33 Finally, Parents challenge the juvenile court’s earlier order
following the shelter hearing, asserting that the court failed to
engage in the proper statutory analysis before issuing its order
finding that removal was necessary. In particular, Parents assert
that the court did not properly analyze whether DCFS had made
reasonable efforts to prevent removal, and that the court did not
properly analyze whether there were services available, going
forward, that might have prevented removal. At root, Parents’
assertion is that the juvenile court misapplied the shelter statute.
“We review [a lower] court’s application of a statute for
correctness.” Estate of Higley v. Utah Dep’t of Transp., 2010 UT App
227, ¶ 6, 238 P.3d 1089 (quotation simplified).
ANALYSIS
I. Adjudication Order
¶34 Parents’ main challenge is to the merits of the juvenile
court’s adjudication order, in which the court determined that the
Children were abused and neglected as to both Parents. For the
reasons discussed, we affirm the juvenile court’s determination
that Parents neglected the Children. In light of that ruling, and
given the posture of Parents’ arguments on appeal, we need not
consider the merits of the court’s abuse adjudication.
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A. Neglect
¶35 We first consider Parents’ challenge to the juvenile court’s
neglect adjudication. In this context, “[n]eglect” includes parental
“action or inaction causing” any one of six different results. See
Utah Code § 80-1-102(58)(a). Yet not all six results are necessary
for a neglect determination; when “the juvenile court [finds]
neglect under several subsections, to affirm we need conclude
only that neglect was established under one of the bases.” In re
G.H., 2023 UT App 132, ¶ 28, 540 P.3d 631.
¶36 In this case, the juvenile court determined that Parents had
neglected the Children under two of the six statutory subsections.
First, based on the condition of the Children at removal, the court
determined that Parents’ action or inaction caused a “lack of
proper parental care of a child by reason of the fault or habits of
the parent.” See Utah Code § 80-1-102(58)(a)(ii). Second, and
alternatively, the court determined, based on the Children’s
medical conditions, that Parents had failed or refused “to provide
proper or necessary subsistence or medical care, or any other care
necessary for the child’s health, safety, morals, or well-being.” Id.
§ 80-1-102(58)(a)(iii). For the reasons discussed, we conclude that
the juvenile court’s first ground is supported by the evidence in
this case, and we therefore need not reach the second.
¶37 In our view, the Children’s condition at removal alone was
sufficient for the juvenile court to determine that the Children
were neglected. The Children were all malnourished, one of them
“severely” so. They were all underweight and failing to thrive.
Moreover, they all had mobility problems; none of them could
walk in an age-appropriate manner. And none were toilet-trained.
In addition, they arrived at PCMC with open sores in their diaper
areas and around their G-tube sites that were severe enough to
require consultation with the hospital’s wound clinic.
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¶38 Even though the Children are medically complex, the
juvenile court found that there was no medical reason for their
malnourishment, failure to thrive, or open wounds. That finding
was not clearly erroneous. It should go without saying that
allowing open wounds to develop or remain untreated is not
medically necessary; certainly, Parents make no assertion to the
contrary. And with regard to malnourishment and failure to
thrive, PCMC doctors investigated whether there could be any
medical reason for the Children’s continued malnutrition and
failure to gain weight, and eventually concluded that no such
medical cause existed here. Absent a medical cause, children with
G-tubes should not be malnourished. Following examination and
testing, the PCMC team eventually determined that the
Children’s “malnourishment and poor growth [were] directly
related to insufficient caloric intake,” despite G-tubes, and that
their “failure to thrive was not due to their medical conditions but
due to [Parents’] neglect . . . in feeding them appropriately.”
¶39 Parents resist the court’s neglect determination by pointing
to the neglect statute’s exception for “reasonable and informed”
health care decisions. See id. § 80-1-102(58)(b)(ii) (“Neglect does
not include . . . a health care decision made for a child by the
child’s parent or guardian, unless the state . . . shows . . . that the
health care decision is not reasonable and informed.”). They
assert, in essence, that their care of the Children has consisted of
a series of health care decisions that the State has not shown to be
unreasonable or uninformed. And on that basis they argue that
the court’s neglect determination was incomplete and improper.
¶40 Parents’ arguments might have more force if the reason the
State was asserting neglect had to do with a specific medical
decision Parents made for the Children—say, for instance, their
decision to place G-tubes in all three Children. But in this case, the
juvenile court’s neglect determination was—at least in relevant
part—not based on any specific health care decision but, instead,
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on the Children’s condition at the time of removal. On that score,
Parents—unlike the parents in In re M.S., 2023 UT App 74, ¶¶ 41–
48, 533 P.3d 859, who asserted that their baby’s low weight was
due to their decision to exclusively use breast milk rather than
formula—make no effort to defend the Children’s malnutrition
and failure to thrive by pointing to any particular health care
decision, whether reasonable and informed or not. Indeed, as
noted, PCMC doctors concluded, after examination and testing,
that there was no medical justification for the Children’s
malnutrition and failure to thrive. Under these circumstances, the
statutory exception to “neglect” for “reasonable and informed”
health care decisions simply has no application.
¶41 We therefore affirm the juvenile court’s determination that,
based on the Children’s condition at removal, Parents—through
their own “fault or habits”—had failed to provide “proper
parental care” to the Children. See Utah Code § 80-1-102(58)(a)(ii).
Because we affirm under subsection (a)(ii), we need not further
discuss the court’s alternative neglect determination, made under
subsection (a)(iii). See In re G.H., 2023 UT App 132, ¶ 28.
B. Abuse
¶42 Moreover, because we affirm the juvenile court’s neglect
determination, we need not—in this case—consider the merits of
the court’s abuse determination. Juvenile court jurisdiction over a
child can be based on, among other things, either abuse or neglect.
See In re G.B., 2022 UT App 98, ¶ 32, 516 P.3d 781 (“Importantly,
jurisdiction could properly be based on either the abuse
determination or the neglect determination.”). Our decision
affirming the juvenile court’s neglect adjudication means that the
court has continuing jurisdiction over the Children, regardless of
the merits of Parents’ challenge to the court’s abuse adjudication.
¶43 In situations like this one, the propriety of the court’s abuse
adjudication ends up being an inconsequential point, unless the
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affected parent can demonstrate that there will be “collateral
consequences associated with an abuse determination that do not
follow from a neglect determination.” Id. ¶ 34. In this case, Parents
make no effort to articulate any collateral consequences that might
follow from an abuse adjudication that are not already present
from a neglect adjudication. And when asked during oral
argument if we would need to address abuse if we were to affirm
on neglect, Parents agreed that, in that situation, we would not
need to address abuse. We therefore have no occasion to consider
the merits of Parents’ challenge to the court’s abuse adjudication.
II. Ineffective Assistance of Counsel
¶44 Next, Parents assert that their attorneys provided
ineffective assistance during the adjudication proceedings by
failing to consult with or call an expert who could have testified
about “medical child abuse” and about Parents’ state of mind and
intentions regarding their care of the Children. Under the
circumstances of this case, we reject Parents’ claim of ineffective
assistance of counsel.
¶45 In child welfare cases, we employ the “Strickland test to
determine a claim for ineffective assistance of counsel.” See In re
E.H., 880 P.2d 11, 13 (Utah Ct. App. 1994) (citing Strickland v.
Washington, 466 U.S. 668 (1984)), cert. denied, 890 P.2d 1034 (Utah
1994). Under that test, Parents “must show that (1) counsel’s
performance was deficient and (2) this deficient performance
prejudiced the defense.” In re C.M.R., 2020 UT App 114, ¶ 19, 473
P.3d 184 (quotation simplified). “To demonstrate deficient
performance,” Parents “must persuade this court that,
considering the record as a whole, [c]ounsel’s performance was
objectively unreasonable.” In re R.G., 2023 UT App 114, ¶ 16, 537
P.3d 627. And to show prejudice, Parents “must demonstrate a
reasonable probability that the outcome of [their] case would have
been different absent counsel’s error.” In re C.M.R., 2020 UT App
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20230103-CA 19 2024 UT App 47In re K.J.
114, ¶ 21 (quotation simplified). “A reasonable probability is a
probability sufficient to undermine confidence in the outcome of
the proceeding.” Id. (quotation simplified). In this case, Parents
cannot meet either element of the Strickland test.
¶46 In support of their ineffective assistance claim, Parents
have submitted a declaration from a forensic pathologist (Expert)
who indicates that he has experience in cases of medical child
abuse. Expert offers his view that, in most cases of medical child
abuse, the “responsible parent . . . receives some form of
secondary benefit, either financial or psychologic, from the
inappropriate and unwanted medical care the child receives.” But
he states that, in other cases, the unnecessary medical care is the
result of “miscommunication between medical providers and
patients” and of “the unsophistication and/or limited cognitive
resources” of the parents. Expert states that, in order to offer a
useful opinion in this case, he would need to undertake “an
adequate psychologic and cognitive assessment” of Parents. He
has not yet undertaken any such assessment, although he notes
that he has reviewed the reports of another examiner who
assessed Parents, and he offers his view that these reports “appear
to endorse mental functioning deficits” on Parents’ part “that
could lead to inaccurate conceptualizations of [the Children’s]
medical conditions and treatment needs,” and that nothing he
sees in those reports “implies [that Parents] are putting [the
Children] at risk for selfish or self-aggrandizing motives.”
¶47 Under the circumstances presented here, a reasonable
attorney could have decided not to consult Expert. The opinions
Expert offers speak only to medical child abuse, and not to
whether Parents neglected the Children by not feeding them
enough and not enabling them to grow and thrive despite their
medical maladies. As noted above, we affirm the juvenile court’s
neglect determination without reaching the merits of any
questions about the propriety of the Children’s various medical
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diagnoses. Because Expert has nothing useful to say about
Parents’ manifest neglect of the Children notwithstanding their
diagnoses, a reasonable attorney could have determined that
consultation with Expert was not necessary or helpful.
Accordingly, we conclude that Parents have not demonstrated
that their attorneys performed deficiently.
¶48 For much the same reason, Parents have also not shown
prejudice. Even if their attorneys had consulted with and retained
Expert, his testimony—given that it goes only to abuse and not to
Parents’ neglect of the Children as evidenced by the Children’s
condition at removal—would not have made a difference to the
outcome of this case.
¶49 Thus, we conclude that Parents have not borne their
burden of demonstrating that their attorneys rendered
constitutionally ineffective assistance.
III. The Shelter Order
¶50 Finally, we consider Parents’ challenge to the juvenile
court’s earlier shelter order. Before considering the merits of that
challenge, we address one preliminary issue: whether Parents
have properly appealed the shelter order. After concluding that
Parents have properly mounted an appeal from the shelter order,
we proceed to address the merits of Parents’ arguments.
A. Appealability
¶51 We do not see very many appeals from shelter orders. We
suspect that this is because shelter hearings occur at the very
beginning of any child welfare case, and because orders coming
out of those hearings are not considered final orders that are
immediately appealable as of right. We therefore take this
opportunity to discuss the appealability of shelter orders, and we
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conclude that Parents have properly appealed from the shelter
order here.
¶52 “As a general rule, an appellate court does not have
jurisdiction to consider an appeal unless the appeal is taken from
a final order or judgment that ends the controversy between the
litigants.” In re J.E., 2023 UT App 3, ¶ 17, 524 P.3d 1009 (quotation
simplified). And, at least conceptually, “the finality of an order in
juvenile proceedings is determined the same way as the finality
of an order in other courts.” Id. ¶ 18 (quotation simplified). “But
it is fair to say that, in appeals from juvenile court, finality is
viewed somewhat more flexibly than in the district court context.”
Id. ¶ 19. In juvenile court cases, “the determining factor” as to
finality “is whether [the order in question] effects a change in the
permanent status of the child.” Id. (quotation simplified). Using
this “pragmatic analysis of the order itself,” Utah appellate courts
have concluded that, in juvenile court cases, “appeals may be
heard from more than one final judgment.” Id. (quotation
simplified). In particular, adjudication orders and termination
orders are considered final orders that are appealable as of right,
while “shelter orders” are “not considered final.” Id. ¶ 20; see also
In re S.A.K., 2003 UT App 87, ¶ 13, 67 P.3d 1037 (“An adjudication
order is one such judgment that we have found to be final for
purposes of appeal.”); In re M.V., 937 P.2d 1049, 1051 (Utah Ct.
App. 1997) (per curiam) (holding that, because a shelter hearing
only creates temporary orders, “a shelter hearing order . . . is not
final and appealable as a matter of right”).
¶53 Because shelter orders are not considered to be final orders,
they are not immediately appealable as of right.3 To properly
3. Parties can, of course, request permission to appeal any
interlocutory order (including shelter orders) under rule 5 of the
Utah Rules of Appellate Procedure. But parties are not required
(continued…)
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appeal such orders as a matter of right, the party wishing to
challenge the shelter order must wait until the court has entered
a final appealable order. At that point, the party may take an
appeal from the final order, which appeal “may include
challenges to interlocutory orders” issued by the court prior to
entry of the final order. Jensen v. Jensen, 2013 UT App 143, ¶ 2 n.1,
304 P.3d 878 (per curiam); accord U.P.C., Inc. v. R.O.A. Gen., Inc.,
1999 UT App 303, ¶ 13, 990 P.2d 945.
¶54 In this situation, the adjudication order was the first final
and appealable order issued by the juvenile court following entry
of the shelter order. Thus, Parents’ opportunity to appeal the
shelter order as of right presented itself upon entry of the court’s
adjudication order. And Parents seized that opportunity by filing
their notices of appeal. In each notice, Parents specified that they
were appealing from the court’s adjudication order; they did not
specify that they also wanted to appeal from the court’s interim
shelter order, but parties are not required to include such
to seek review under rule 5, and such review is in any event
completely discretionary with the appellate court. See Utah R.
App. P. 5(a), (g). In this case, Parents did not seek permission to
appeal the shelter order under rule 5, but this fact does not affect
their ability to later appeal the shelter order following the
eventual entry of a final order. See State v. Troyer, 866 P.2d 528, 530
(Utah 1993) (stating that “the scope of appellate review from a
final judgment” is not “in any way affected or limited by the
possibility that any one or more of the trial court’s rulings might
have formed the basis of a petition for an interlocutory appeal”);
see also In re S.F., 2012 UT App 10, ¶ 28, 268 P.3d 831 (stating that
the fact that a parent “could have elected to petition for
interlocutory appeal” from an earlier nonfinal order “does not
eliminate our authority to review” the earlier order “once the
neglect and termination proceedings were completed and an
appeal timely filed”), cert. denied, 280 P.3d 421 (Utah 2012).
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20230103-CA 23 2024 UT App 47In re K.J.
specification in the notice of appeal. See Wilson v. Sanders, 2019 UT
App 126, ¶ 28, 447 P.3d 1240 (“The language of rule 3(d) [of the
Utah Rules of Appellate Procedure] does not require a party
appealing from an entire final judgment to specify each
interlocutory order of which the appellant seeks review.”
(quotation simplified)), cert. denied, 456 P.3d 388 (Utah 2019).
Parents then indicated in their appellate petition, filed a few
months later, that they were challenging not only the adjudication
order but also the interlocutory shelter order.
¶55 Thus, Parents took all the right steps to appeal the juvenile
court’s shelter order. Such orders are not immediately appealable
as of right, but a challenge to such orders may be included in any
appeal from the next subsequently entered final order. Parents
properly included their challenge to the shelter order in their
appeal from the next final order entered by the juvenile court: the
adjudication order.
B. Parents’ Challenge to the Shelter Order
¶56 Having concluded that Parents have properly mounted an
appeal from the juvenile court’s shelter order, we proceed to
consider the merits of Parents’ appellate challenge. In this case,
Parents raise a very specific objection to the shelter order. They
assert that the court did not properly address two of the required
components of the statutorily mandated removal analysis:
(1) “whether reasonable efforts were made to prevent or eliminate
the need for removal,” and (2) “whether there are available
services that would prevent the need for continued removal.” See
Utah Code § 80-3-301(10)(a)(i). In considering the merits of
Parents’ challenge, we first conclude that the juvenile court did
indeed err in its application of the shelter statute. In a separate
section, we then discuss the appropriate remedy in this situation.
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1
¶57 Utah law requires juvenile courts, before removing a child
from a parent’s home, to make several specific findings. At issue
here are the requirements of subsection 10(a) of the shelter statute.
That subsection states, in relevant part, as follows:
(i) The juvenile court shall make a determination on
the record as to whether reasonable efforts were
made to prevent or eliminate the need for
removal of the child from the child’s home and
whether there are available services that would
prevent the need for continued removal.
(ii) If the juvenile court finds that the child can be
safely returned to the custody of the child’s
parent or guardian through the provision of the
services described in Subsection 10(a)(i), the
juvenile court shall place the child with the
child’s parent or guardian and order that the
services be provided by [DCFS].
Id. § 80-3-301(10)(a).
¶58 Thus, this statutory provision requires juvenile courts to
make, “on the record,” two separate but related determinations.
See id. § 80-3-301(10)(a)(i). The first one is a backward-looking
inquiry that asks whether, prior to removal, DCFS has made
“reasonable efforts” to “prevent or eliminate the need for
removal.” Id. However, if DCFS’s “first contact with the family
occurred during an emergency situation in which the child could
not safely remain at home,” the juvenile court need not engage in
a traditional reasonable-efforts analysis but, instead, “shall make
a finding that any lack of preplacement preventive efforts . . . was
appropriate.” Id. § 80-3-301(11).
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¶59 The second—and related—determination requires analysis
of “whether there are available services that would prevent the
need for continued removal.” Id. § 80-3-301(10)(a)(i). As we
understand it, this inquiry is different from the reasonable-efforts
analysis, in that it looks forward rather than backward. As
relevant here, the question is not whether reasonable efforts have
been made in the past, but whether services are available, going
forward, that could “prevent the need for continued removal.” Id.
¶60 With regard to the first part of this inquiry, the court in its
oral ruling offered its view that “emergency circumstances did
exist” at the time of removal “which absolved [DCFS] of the need
to provide reasonable efforts.” And in its later written order, it
found that, “because an emergency situation and aggravated
circumstances existed at the time of removal, and the [C]hildren
could not safely remain in [Parents’] home, any lack of pre-
placement preventative efforts was appropriate and justified.” 4
4. There are other statutory provisions that, in specific cases, may
operate to excuse or render irrelevant any lack of pre-removal
reasonable efforts. See, e.g., Utah Code § 80-2a-201(6) (stating that,
“in cases where sexual abuse, sexual exploitation, abandonment,
severe abuse, or severe neglect are involved, the state has no duty
to make reasonable efforts or to . . . maintain a child in the child’s
home”); id. § 80-2a-302(4) (same); id. § 80-3-301(12) (same). No
party asserts that any of these other Utah statutes are applicable
here. In a supplemental authority letter submitted to us after oral
argument, however, the guardian ad litem (GAL) asserts—for the
first time—that the juvenile court’s allusion to “aggravated
circumstances” was an implicit effort to resort to a provision of
federal law, which provides that “reasonable efforts . . . shall not
be required . . . if a court of competent jurisdiction has determined
that the parent has subjected the child to aggravated
(continued…)
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¶61 Parents assert that this analysis was erroneous because the
“emergency” exception that absolves DCFS from making
reasonable pre-removal efforts to prevent removal applies only in
cases in which DCFS’s “first contact with the family occurred
during an emergency situation,” see id. § 80-3-301(11) (emphasis
added), a situation not applicable here. The State advances a
broader interpretation of this statutory exception, but in our view
Parents’ interpretation is the correct one.
¶62 The State agrees with Parents that, in situations in which
DCFS’s first contact with the family is in an emergency situation,
the statute requires the court to make a finding that any lack of
reasonable efforts was appropriate. See id. But it asserts that this
provision does not prevent a court from “mak[ing] a finding of
exigency in any case where [DCFS] has already been working
with the parents,” and it posits that a juvenile court has the
authority to dispense with the pre-removal reasonable-efforts
inquiry anytime it believes the situation is emergent. We disagree.
¶63 The previous subsection requires that a pre-removal
reasonable-efforts finding be made. See id. § 80-3-301(10)(a)(i).
circumstances.” 42 U.S.C. § 671(a)(15)(D)(i). As an initial matter,
we note that parties may not raise new legal theories in post-
argument supplemental authority letters. Cf. State v. Seat, 2022 UT
App 143, ¶ 39 n.4, 523 P.3d 724 (stating that parties are “not
permitted to raise a new question for the first time at oral
argument” before this court). But more substantively, the GAL’s
argument fails on its face; even if we assume, for purposes of the
discussion, that the juvenile court’s comment was actually a
reference to a federal statutory exception to the reasonable-efforts
requirements, resort to the federal statute is unhelpful here
because, at the time of the shelter hearing, no “court of competent
jurisdiction” had made any determination that Parents had done
anything wrong.
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There are no exceptions built into this subsection. To be sure, there
is an exception built into the next statutory subsection, but that
provision, on its face, applies only to situations in which DCFS’s
first encounter with the family occurred in an emergency
situation. We decline the State’s invitation to read a broader
emergency exception into the statute. See St. Jeor v. Kerr Corp., 2015
UT 49, ¶ 13, 353 P.3d 137 (“[W]e will not read additional
limitations into [a rule] that the language cannot bear.”); Greene v.
Utah Transit Auth., 2001 UT 109, ¶ 15, 37 P.3d 1156 (“[W]e will not
disturb explicit legislative requirements and read into the statute
an actual notice exception.”). We conclude that subsections (10)
and (11) of the shelter statute, when read together, contemplate an
exception to the reasonable-efforts requirement that is applicable
only when DCFS’s first encounter with the family occurs during
an emergency situation. 5
¶64 That narrow exception is not applicable here. DCFS was
first notified of potential problems with the Children in August
2022, some three months before removal. Between DCFS’s first
notification (in August) and removal (in November), DCFS
assigned caseworkers to the family, and those caseworkers made
at least ten visits to Parents’ home. This is simply not a situation
in which DCFS’s “first contact with the family” occurred in an
emergency situation, and therefore the “emergency” exception to
the reasonable-efforts inquiry does not apply here. The juvenile
court therefore erred in applying that exception in this case, and
it should have proceeded, at the shelter hearing, to consider
5. We can certainly envision policy concerns that might support a
broader exception to the reasonable-efforts requirement that
could apply in any emergency situation, regardless of whether
DCFS had already been working with the affected family. We note
here, as we sometimes do, that our legislature is free to amend the
statute if it believes we have misinterpreted legislative intent.
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whether DCFS had made reasonable pre-removal efforts to avoid
taking the Children out of Parents’ home.
¶65 The juvenile court’s error in this regard, however, appears
to have been rendered moot by the court’s later finding, made
after the adjudication trial, that DCFS had “made reasonable
efforts to prevent the removal of the [C]hildren, but those efforts
were unsuccessful.” While Parents complain that the court did not
undertake this analysis after the shelter hearing, they do not make
any effort to challenge the finding that the court eventually made
just two months later after the adjudication trial. Under these
circumstances, any error the court made by relying on the
emergency exception at the shelter hearing, and by failing to make
a “reasonable efforts” finding at that time, has been rendered
inconsequential by the court’s later unchallenged finding that
DCFS had indeed made reasonable efforts to prevent removal.
¶66 We turn now to the second part of the inquiry, the part that
requires the court to determine, on a going-forward basis,
“whether there are available services that would prevent the need
for continued removal.” See Utah Code § 80-3-301(10)(a)(i). In this
vein, the court stated, in its written order, as follows:
If, at some point, there is a plan in place and
[Parents] have shown the ability to take into
consideration the current medical condition of the
[C]hildren, and have shown the ability to work with
the professionals providing that care for the
[C]hildren, the [c]ourt would re-consider whether
ongoing and continued removal would be
necessary.
This comment indicates that the court was of course aware that
services do exist—such as physical, speech, and occupational
therapy for the Children and medical education and in-home
health care assistance for Parents—that are designed to improve
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20230103-CA 29 2024 UT App 47In re K.J.
situations like the one presented here. And it indicates that the
court was making an effort to apply the second part of the
statutory analysis. 6 But the court, in its analysis, did not take the
next analytical step and assess whether specific services could be
provided to the family, in that moment and going forward, that
might obviate the need for removal. See id. Simply stating that, at
some point in the future, the court might reconsider its removal
order is not sufficient; indeed, in most child welfare cases, the
initial permanency goal is reunification, and juvenile courts
nearly always stand ready to reconsider removal orders in
appropriate cases. The shelter statute requires a more exacting
analysis prior to removal, and the court’s failure here to ask and
answer the correct statutory question was error.
¶67 And unlike the court’s error regarding the backward-
looking reasonable-efforts determination, this error was not later
remedied by later findings made after the adjudication trial. The
State points to no similar finding made after the trial, and we are
aware of none.
¶68 We therefore conclude that the juvenile court made two
errors in its attempt to comply with the shelter hearing statute.
First, it misapplied the “emergency” exception to its obligation to
make a backward-looking reasonable-efforts determination at the
shelter hearing. Second, it failed to make a specific forward-
looking determination about whether services could be provided
6. On this basis, we reject the State’s assertion, also advanced by
the GAL, that Parents failed to preserve any objection to the
court’s application of the shelter statute. Our supreme court has
made clear that there is no preservation problem where the trial
court “not only had an opportunity to rule on the issue . . . but in
fact did rule on it.” See Fort Pierce Indus. Park Phases II, III & IV
Owners Ass’n v. Shakespeare, 2016 UT 28, ¶ 13, 379 P.3d 1218(quotation simplified).
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20230103-CA 30 2024 UT App 47In re K.J.
to the family that would serve to obviate the need for removal.
The first error was rendered inconsequential by later findings. But
the second one wasn’t, and we must therefore consider what the
proper remedy is, in this situation, to address the court’s error.
2
¶69 Before doing so, we take the opportunity to emphasize the
importance of completing the proper statutory analysis at the
shelter hearing. While such hearings take place early in the case
and are generally not comprehensive trials, they can assume a
position of great importance in the arc of a child welfare case. To
be sure, removal orders are temporary nonfinal orders that can
be—and in many cases are, see, e.g., In re M.S., 2023 UT App 74,
¶¶ 2–21, 533 P.3d 859 (considering a situation where a child was
placed back into the parent’s home at a later hearing, after initial
removal)—amended or modified, but removal orders
nevertheless memorialize a seminal moment in a child welfare
case. Such cases often proceed much differently after the shelter
hearing depending on whether the child was (or was not)
removed. It is therefore vital that courts undertake the analysis
required by the shelter statute, and that, before removal, they
engage with both the backward-looking reasonable-efforts
analysis as well as the forward-looking services analysis.
¶70 The importance of getting shelter hearings right the first
time is highlighted by the difficulty of putting the removal genie
back in the proverbial bottle. As this case illustrates, by the time
appellate review of a shelter order can take place, the family’s
situation will often look much different than it did at the shelter
hearing. While post-adjudication events are not part of the record
submitted to us on appeal, we are nevertheless aware that, while
this appeal has been pending, significant events have taken place
that might affect the way the juvenile court analyzes the question
of whether services are available that could obviate the need for
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20230103-CA 31 2024 UT App 47In re K.J.
continued removal. For instance, we are aware that criminal child
abuse charges have been filed against Parents. In addition, we are
aware that, since the adjudication hearing, Parents have received
certain services, and the court has had the opportunity—at a
permanency hearing held in January 2024—to assess the efficacy
of those services. And there have doubtless been other
developments that have occurred in the previous sixteen months
of which we are appropriately unaware.
¶71 In this case, by way of remedy, Parents ask us to vacate the
initial removal order and remand the case so that the juvenile
court can conduct an entirely new shelter hearing. We do not view
this as an unreasonable request; indeed, when an error is made at
a hearing, a common remedy is to remand the case for the court
to conduct a new hearing. But even though we do not view
Parents’ request as unreasonable, in this situation the request is
not entirely practical. After all, the situation is much different now
from what it was in November 2022, and in cases involving
children, our usual remand instructions include an admonition to
the court to conduct any new hearing, on remand, in present-tense
fashion, as of the date of the renewed hearing, taking into account
all that has happened in the child’s situation since. See In re
Z.C.W., 2021 UT App 98, ¶ 12, 500 P.3d 94.
¶72 Under the circumstances, we agree with Parents that the
juvenile court’s error cannot go entirely unremedied, and that the
case should therefore be remanded so that the juvenile court can
complete the analysis required by the shelter statute and, in
particular, consider “whether there are available services that
would prevent the need for continued removal.” See Utah Code
§ 80-3-301(10)(a)(i). But this inquiry should not be undertaken as
of the date of the initial shelter hearing; instead, this inquiry
should, on remand, be conducted in present-tense fashion, taking
into account all relevant existing developments. See In re Z.C.W.,
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20230103-CA 32 2024 UT App 47In re K.J.
2021 UT App 98, ¶ 12. 7 Moreover, we offer no specific instruction
to the juvenile court as to whether, and to what extent, it must
hold an evidentiary hearing on remand; we conclude only that the
court must properly complete the required statutory analysis and
that it “must—in some manner—consider and appropriately deal
with proffered new evidence.” See id. ¶ 15. And we do not, in this
opinion, order that the removal order be vacated; the juvenile
court may order that relief, if it deems such relief appropriate,
only after completing its analysis on remand.
¶73 Finally, we wish to make clear that we harbor no opinion
as to how the juvenile court’s renewed analysis should come out;
given the realities of chronology, the juvenile court (conducting a
present-tense analysis) will have a lot more information than we
do now, on this record, about how the Children are doing and
how Parents have responded to the situation during the period
between the shelter hearing and the permanency hearing. It may
well be that the court reaches the same result, after conducting a
more complete shelter analysis, that it reached at the permanency
hearing in January 2024. On the other hand, it may be that the
court, after conducting the proper shelter analysis, finds it
appropriate to vacate or amend one or more of its previous orders.
But either way, it is important that courts conducting shelter
7. In In re Z.C.W., 2021 UT App 98, 500 P.3d 94, our instruction
that the renewed hearing be conducted, on remand, in present-
tense fashion was a function of the applicable statute using a
present-tense locution. See id. ¶ 13 (interpreting a statute requiring
juvenile courts to assess “whether termination is in the best
interest of the child” (quotation simplified)). The statute at issue
here also uses a present-tense locution. See Utah Code § 80-3-
301(10)(a)(i) (requiring assessment of “whether there are available
services that would prevent the need for continued removal”
(emphasis added)). We therefore conclude that, in this situation,
a present-tense perspective is required on remand.
20230102-CA
20230103-CA 33 2024 UT App 47In re K.J.
hearings, before they take the rather drastic step of removing
children from a parent’s home, follow the requirements of the
shelter statute. We remand the matter so that these requirements
may be satisfied in this case, albeit belatedly.
CONCLUSION
¶74 We discern no error in the juvenile court’s determination
that, based on the condition of the Children upon removal, the
Children were neglected by both Parents. And we reject Parents’
assertion that their attorneys rendered ineffective assistance
during the adjudication process.
¶75 However, we conclude that the juvenile court did not
conduct the proper statutory analysis at the initial shelter hearing.
We therefore remand this case to the juvenile court so that it can
complete the required analysis and assess, in present-tense
fashion, whether there are services available that can prevent the
need for continued removal.
20230102-CA
20230103-CA 34 2024 UT App 47